Improving the protection of wild mammals: consultation analysis

4. Language of the Act – clarity of the exceptions

4.1 This chapter presents respondents' views in relation to Questions 1.3 and 1.4.

4.2 Section 2 of the 2002 Act sets out the exceptions to the offence defined in section 1 – that is, the circumstances in which a dog may lawfully be used to hunt a wild mammal. In paragraphs 5.23 – 5.38 of the review report, Lord Bonomy identifies a number of inconsistencies in the way in which the exceptions are expressed in the Act and states (in paragraph 5.37) that these expressions 'may be adding unnecessary complications into fairly detailed provisions'.

Use of 'searching' in section 2(1) (Q1.3)

4.3 One of the inconsistencies discussed in the review report relates to the use of 'searching' in section 2(1). Section 2(1) states:

A person who is, or who has the permission of, the owner or lawful occupier of the land on which the stalking, searching or flushing referred to in this subsection takes place does not commit an offence under section 1(1) by using a dog under control to stalk a wild mammal, or flush it from cover (including an enclosed space within rocks, or other secure cover) above ground for the purpose of –

(a-f) ….
but only if that person acts to ensure that, once the target wild mammal is found or emerges from cover, it is shot, or killed by a bird of prey, once it is safe to do so.

4.4 Lord Bonomy noted that the term 'searching' is used in conjunction with the terms 'stalking' and 'flushing' once in this section. However, unlike 'stalking' and 'flushing', the term 'searching' is not specifically mentioned again. He suggested that it was likely inadvertently omitted the second time. The consultation questionnaire sought views about whether the 2002 Act would be clearer if 'searching' was included with 'stalking' and 'flushing' where they appear (for the second time) in section 2(1):

Question 1.3: Do you think the Act would be clearer if 'searching' was included alongside 'stalking' and 'flushing' in section 2(1)? [Yes / No] Please explain your answer.

4.5 There were 214 substantive responses to this question and 2,059 campaign responses. Views were almost equally divided among organisations and individuals with 48% of respondents answering 'yes' and 52% answering 'no'. However, among organisational respondents, most countryside management and sporting organisations answered 'no', while animal welfare charities and campaign groups unanimously answered 'yes'. The 3,764 respondents who submitted their views through the campaigns organised by the International Fund for Animal Welfare and the Scottish Greens answered 'yes' to this question. Thus, 97% of all respondents who provided a tick-box response at Question 1.3 thought it would be clearer if 'searching' was included alongside 'stalking' and 'flushing' in section 2(1). See Table 4.1.

Table 4.1: Q1.3 – Do you think the Act would be clearer if 'searching' was included alongside 'stalking and 'flushing' in section 2(1)?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Countryside management and sporting organisations	2	15%	11	85%	13	100%
Animal welfare charities and campaign groups	6	100%	–	0%	6	100%
Other organisational respondents	1	50%	1	50%	2	100%
Total organisations	9	43%	12	57%	21	100%
Individual respondents	94	49%	99	51%	193	100%
Total (organisations and individuals)	103	48%	111	52%	214	100%
Campaign respondents	3,764	100%	–	0%	3,764	100%
Total (all respondents)	3,867	97%	111	3%	3,978	100%

4.6 A total of 2,227 respondents (21 organisations, 147 individuals and 2,059 campaign respondents) made further comments at Question 1.3.

4.7 As with Question 1.2, there may have been some confusion among respondents about what this question was asking. A small number of individual respondents who answered 'no' to this question called for a greater strengthening of the law in this area. Similarly, some individual respondents who answered 'yes' submitted comments that were identical to those expressed by the larger group of respondents who answered 'no'. This suggests the figures shown for individual respondents in Table 4.1 should be treated with caution.

Views supporting the inclusion of 'searching' in section 2(1)

4.8 Respondents who answered 'yes' to Question 1.3 (including two countryside management and sporting organisations) commonly made the following points:

• It should be clear within the Act that 'searching' is part of hunting.
• 'Searching' should be included alongside 'stalking' and 'flushing' for the sake of consistency; it should also be included in the title of section 2 of the Act.
• The police have indicated that this addition would be helpful to them when investigating allegations of illegal hunting.
• The terms 'stalking' and 'searching' are inseparable in the context of field sports. It is clear that 'searching' is a lawful and integral part of wild mammal control using dogs, so the term should, for correctness, be included in the exceptions.

4.9 One animal welfare organisation suggested the legislation could be amended as follows: '[…] does not commit an offence under section 1(1) by using a dog under control to stalk or search for a wild mammal, or flush it from cover (including an enclosed space within rocks, or other secure cover) above ground […]'

4.10 Among those who answered 'yes' to Question 1.3, a range of related points were also made (usually by just one or two respondents). These included, for example: (i) the function of searching is different to that of 'stalking' and 'flushing' and so it should be included and defined; and (ii) while adding 'searching' to section 2 in a consistent manner would aid clarity, it should be questioned whether it is necessary or desirable to extend the exceptions – an alternative and equally clear approach would be to delete any exceptions for searching from section 2, while retaining the term in the definition [of hunting] at section 10.

Views opposed to the inclusion of 'searching' (a second time) in section 2(1)

4.11 In general, respondents who answered 'no' to Question 1.3 did not think that including the word 'searching' alongside 'stalking' and 'flushing' (for a second time) in section 2(1) would contribute any further clarity to the legislation and thought that this subsection should remain unchanged. This group repeatedly made three points:

• 'Searching' is already included alongside 'stalking' and 'flushing' in section 2(1) (however, it was also acknowledged that 'searching' was not repeated later in the clause where 'stalking' and 'flushing' are used again).
• 'Searching' is included within the definition of 'to hunt' (in section 10), so its omission (the second time) in section 2(1) is unlikely to affect either the understanding of the exception, or the Act's enforcement.
• 'Searching' is simply a precursor to 'stalking' or 'flushing'.

4.12 However, one organisational respondent expanded on this latter point, and expressed a slightly different view to those above. This respondent stated that the activity of searching is quite different to the activities of 'stalking' and 'flushing'. Searching indicates the start of a hunt and the intention to hunt. Therefore, if a hunt searches for a fox without gunmen set up correctly, it should be considered illegal, and the law needs to make this clear. This respondent suggested that the term 'to search' should be in a separate section of the Act.

4.13 Occasionally respondents made other points on a wide range of disparate issues – however, in general, each of these was made by just one or two individuals. Examples included: 'the use of the word [searching] may complicate the legislation' and 'searching would be very hard to prove in court'.

Relevance of 'searching' to other subsections in section 2 (Q1.4)

4.14 The consultation questionnaire asked whether the term 'searching' was relevant to any of the other (two) subsections in section 2 of the 2002 Act, both of which refer to 'flushing' a wild mammal (section 2(2)) or a fox or mink (section 2(3)).

Question 1.4: Is 'searching' relevant to any other subsections? [Yes / No] Please explain your answer.

4.15 There was a total of 184 substantive responses to this question and 2,059 campaign responses. Around two-thirds of organisational and individuals respondents (64%) answered 'yes' and around one-third (36%) answered 'no'. This pattern of response was also the same among organisations and individuals separately. Note that there were differences of opinion on this question among the countryside management and sporting organisations (8 out of 13 said 'yes'), and among the animal welfare charities and campaign groups (4 out of 7 said 'yes'). The 2,059 respondents who submitted their views through the campaign organised by the International Fund for Animal Welfare answered 'yes' to this question. Thus, 97% of all respondents who provided a tick-box response at Question 1.4 thought 'searching' was relevant to other subsections. See Table 4.2.

Table 4.2: Q1.4 – Is 'searching' relevant to any other subsections?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Countryside management and sporting organisations	8	62%	5	38%	13	100%
Animal welfare charities and campaign groups	4	57%	3	43%	7	100%
Other organisational respondents	2	100%	–	0%	2	100%
Total organisations	14	64%	8	36%	22	100%
Individual respondents	103	64%	59	36%	162	100%
Total (organisations and individuals)	117	64%	67	36%	184	100%
Campaign respondents	2,059	100%	–	0%	2,059	100%
Total (all respondents)	2,176	97%	67	3%	2,243	100%

4.16 Altogether, 2,172 respondents (19 organisations, 114 individuals and 2,059 campaign respondents) made comments at Question 1.4. Comments were generally very brief, and similar comments were often made by those who answered 'yes' and those who answered 'no' to the closed question. This may indicate some confusion among respondents about this question, and so the figures in Table 4.2 should be interpreted with caution.

Views that 'searching' was relevant to other subsections

4.17 As Table 4.2 suggests, there were two distinctive views among those who answered 'yes' to Question 1.4.

4.18 Animal welfare charities and campaign groups and their supporters among the individual respondents thought that:

• Sections 2(2) and 2(3) should make it clear that 'searching' does not include the provision for a chase of the wild mammal and they suggested that the following statement could be included: 'providing no dogs are permitted to chase a wild mammal while searching for it'.
• It should be clarified that dogs must be under control during the searching process – it was noted that the Wildlife and Countryside Act 1981 deems that any dog must be 'under human control' to be legal.

4.19 Among countryside management and sporting organisations and their supporters, it was particularly common for respondents to simply refer to their comments at Question 1.3 ( i.e. that searching is a precursor to stalking and flushing) without further explanation. Where fuller comments were provided, the following points were made repeatedly:

• 'Searching' is the precursor to stalking and flushing and so is relevant where those activities are mentioned.
• It must be clear that 'searching' is lawful with respect to all the Act's exceptions.
• 'Searching' is included in the definition of 'to hunt'.

4.20 Other views, expressed by just one or two respondents in this group, were that:

• 'Searching' is also relevant to section 2(2), but this is obvious from the subsection's wording and therefore a change to this wording is not warranted.
• For consistency, 'searching' should be included in section 3 (in addition to stalking and flushing) and in section 5 (as a precursor to 'locate').

Views that 'searching' was not relevant (or should not be included) in other subsections

4.21 Animal welfare charities and campaign organisations answering 'no' to Question 1.4 made the following points:

• Sections 2(2) and 2(3) of the 2002 Act relate to the activity of 'flushing', and the term 'searching' is not relevant.
• There are no grounds for adding further exceptions or widening the scope of existing exceptions to include 'searching'.
• Doing so could complicate the enforcement of the legislation.

4.22 The latter point was repeated by some individual respondents who answered 'no' to Question 1.4.

4.23 Countryside management and sporting organisations answering 'no' generally echoed the points made by those who answered 'yes': (i) that 'searching' is included in the definition of 'to hunt' and (ii) that it precedes the activities of flushing or stalking. This group saw 'searching' as relevant to other subsections but did not see a need to state the word explicitly, since it is already understood to be part of these other activities. Both these points were also repeated by some individual reports who answered 'no'.

4.24 Other points made by (one or two) respondents were that:

• 'Searching' does not seem relevant to the specific circumstances of either subsection 2(2) or 2(3), and Lord Bonomy had made no suggestion for adding 'searching' to these other subsections.
• 'Searching' is not relevant to other subsections in section 2 but should be included elsewhere in the Act wherever the terms 'stalking' and 'flushing' are used.