Improving the protection of wild mammals: consultation analysis

5. Language of the Act – clarifying 'stalk', 'search', 'flush'

5.1 This chapter presents respondents' views on Questions 1.5 and 1.6, which relate to paragraphs 5.23 – 5.26 of the review report. These paragraphs discussed the meaning (and the lack of clarity in the meaning) of three key terms from section 2 of the 2002 Act – 'stalking', 'searching' and 'flushing'.

5.2 Section 2 of the 2002 Act refers to the activities of 'stalking' and 'flushing' (as well as 'searching'), and the circumstances in which these activities may be considered as exceptions to the offence defined in section 1.

5.3 Lord Bonomy suggested (paragraph 5.26 of the review report) that further definition of the terms 'to stalk' and 'to flush' may be helpful in determining whether an offence has been committed.

5.4 The consultation included three questions, inviting views about whether respondents thought the 2002 Act would be improved if it included definitions of all three of these terms. If respondents agreed, they were asked to make suggestions about what these definitions should include.

Question 1.5: Do you think the Act would be improved if it included definitions of…

(a) 'to stalk' [Yes / No]

(b) 'to search' [Yes / No]

(c) 'to flush' [Yes / No]

Question 1.6: What elements would you wish to see included in these definitions?

5.5 Respondents across all groups expressed the view that greater clarification of the language within the Act would (i) make for stronger legislation which is easier to enforce, (ii) ensure better compliance, and (iii) help those who may not understand the practical aspects of hunting with dogs ( e.g. the police, investigating officers and courts). Some respondents commented that the definitions proposed by Lord Bonomy in the review report (5.25-5.27) were appropriate, and that his detailed analysis (5.23-5.36) should be considered in the drafting of any new definitions.

5.6 Although Question 1.6 was intended for people answering 'yes' to Questions 1.5(a-c), some respondents answering 'no' also offered comments. These are summarised at the end of this chapter.

5.7 Note that many respondents provided the same comments across all three of these questions. To avoid repetition, these views are discussed only once below.

'To stalk' (Q1.5a / Q1.6c)

5.8 There were 198 substantive responses and 2,059 campaign responses to Question 1.5a. Among organisations and individuals, nearly three-quarters (71%) thought it would be helpful if a definition of 'to stalk' was included in the 2002 Act. This pattern of response was the same for organisational and individual respondents separately. However, among organisations, countryside management and sporting organisations were divided in their views with half answering 'yes' and half 'no'. The 2,059 respondents who submitted their views through the International Fund for Animal Welfare answered 'yes' to this question. Thus, of those who provided a tick-box response to Question 1.5a, 97% thought the Act would be improved if it included a definition of 'to stalk'. See Table 5.1.

Table 5.1: Q1.5(a) – Do you think the Act would be improved if it included a definition of 'to stalk'?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Countryside management and sporting organisations	6	50%	6	50%	12	100%
Animal welfare charities and campaign groups	7	100%	–	0%	7	100%
Other organisational respondents	2	100%	–	0%	2	100%
Total organisations	15	71%	6	29%	21	100%
Individual respondents	125	71%	52	29%	177	100%
Total (organisations and individuals)	140	71%	58	29%	198	100%
Campaign respondents	2,059	100%	–	0%	2,059	100%
Total (all respondents)	2,199	97%	58	3%	2,257	100%

5.9 Altogether, 2,187 respondents (16 organisations, 112 individuals and 2,059 campaign respondents) commented at Question 1.6(a).

5.10 Respondents made both specific suggestions about elements to include in the definition of 'to stalk', and more general comments. Their specific suggestions generally included the concept of 'stealth'. The most common suggestion was 'pursuing by stealth'. Other examples were similar: 'actively look for (or hunt) something by stealth', 'following very stealthily'. Some respondents specifically endorsed the definition given in the review report (paragraph 5.26): 'to follow or track a quarry stealthily'. Less commonly, respondents used the term 'covert' – 'using covert methods to hunt quarry'. Two respondents suggested that the practice of 'lamping' (defined by one as 'use of stealth and concealment to achieve an advantageous position over a quarry') could also be included within the definition of 'stalking'.

5.11 Animal welfare charities and campaign organisations, and some individual respondents made the following general points:

• The term 'stalking' involves stealth which is not seen in pest control activities, terrier work or hunting with a pack of hounds. Thus, it is not clear why it is included in the exceptions set out in section 2 of the 2002 Act. If stalking is to continue to be used in section 2, then a clear definition, setting out its application to fox hunting should be included.
• Any new definitions included in the 2002 Act should (i) be confined to terms that are specific to the hunting of wild mammals; (ii) not create any loopholes which make it legal for a dog to chase a wild mammal in any circumstance; and (iii) rely as far as possible on dictionary definitions and the ordinary meanings of words – as proposed by Lord Bonomy.

5.12 Countryside management and countryside sporting organisations, and some individual respondents made the following general points:

• The working group developing a new code of practice for mounted hunts will clarify certain terminology so that it is workable in a practical pest control setting.
• Any changes to definitions in the legislation would have to be agreed by all relevant practitioners' representatives.
• It is important that the legitimate use of a dog to accompany a deer stalker is not deliberately or unwittingly affected by any changes to Act.

'To search' (Q1.5b / Q1.6c)

5.13 There were 196 substantive responses to Question 1.5b and 2,059 campaign responses. Among organisations and individuals, just over three-fifths (62%) thought it would be helpful to include a definition of 'to search' in the 2002 Act and 38% thought it would not. This pattern of response was consistent for organisations and individuals separately. However, among organisational respondents, half of countryside management and sporting organisations, and two out of seven animal welfare charities and campaign groups answered 'no'. A further 2,059 respondents who submitted their views through the International Fund for Animal Welfare answered 'yes' to this question. Thus, among those who replied to Question 1.5b, 97% thought the 2002 Act would be improved if it included a definition of 'to search'. See Table 5.2.

Table 5.2: Q1.5(b) – Do you think the Act would be improved if it included a definition of 'to search'?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Countryside management and sporting organisations	6	50%	6	50%	12	100%
Animal welfare charities and campaign groups	5	71%	2	29%	7	100%
Other organisational respondents	2	100%	–	0%	2	100%
Total organisations	13	62%	8	38%	21	100%
Individual respondents	109	62%	66	38%	175	100%
Total (organisations and individuals)	122	62%	74	38%	196	100%
Campaign respondents	2,059	100%	–	0%	2,059	100%
Total (all respondents)	2,181	97%	74	3%	2,255	100%

5.14 A total of 2,179 respondents (15 organisations, 105 individuals and 2,059 campaign respondents) provided further comments at Question 1.6b.

5.15 Respondents made a range of specific suggestions about elements to include in the definition of 'to search'. The suggestion made most often was: '(going about) to ascertain the presence of a quarry'. Others (offered less often) included: 'actively seek', 'look for', 'using dogs to fan out and pick up a scent either above or below ground', 'the precursor to stalk (or flush)', 'with the intention of killing'.

5.16 Additional (new) points made regarding 'to search' (all by individuals) were that:

• There are many reasons why a person or persons may search for an animal ( e.g. to monitor species numbers, to study the movement and range of animals, for a vet (or similar) to find a wounded animal, etc.). The legislation needs to be very clear what is and what is not permissible.
• It is important that the definition of searching makes clear that this activity is an intrinsic part of hunting and that full control of dogs must be exercised at all times.

'To flush' (Q1.5c / Q1.6c)

5.17 There were 196 substantive responses and 2,059 campaign responses at Question 1.5c. Among organisations and individuals, nearly three-quarters (72%) thought that the 2002 Act would be improved if it included a definition of 'to flush' while 28% thought it would not. This pattern of response was similar for organisations and individuals separately. However, among organisations, countryside management and sporting organisations were divided in their views, with half answering 'yes' and half answering 'no'. A further 2,059 respondents who submitted their views through the International Fund for Animal Welfare also answered 'yes' to this question. Thus, among those who replied to Question 1.5(c), 98% thought the 2002 Act would be improved if it included a definition of 'to flush'. See Table 5.3.

Table 5.3: Q1.5(c) – Do you think the Act would be improved if it included a definition of 'to flush'?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Countryside management and sporting organisations	6	50%	6	50%	12	100%
Animal welfare charities and campaign groups	7	100%	–	0%	7	100%
Other organisational respondents	2	100%	–	0%	2	100%
Total organisations	15	71%	6	29%	21	100%
Individual respondents	126	72%	49	28%	175	100%
Total (organisations and individuals)	141	72%	55	28%	196	100%
Campaign respondents	2,059	100%	–	0%	2,059	100%
Total (all respondents)	2,200	98%	55	2%	2,255	100%

5.18 A total of 2,185 respondents (17 organisations, 109 individuals and 2,059 campaign respondents) provided further comments at Question 1.6c.

5.19 Respondents made specific suggestions about elements to include in the definition of 'to flush'. The most common of these was: 'to drive (the target animal) into the open (from cover) to be shot'. Other suggestions included: 'to drive to guns', 'to move something to open ground', 'with the intention of killing'.

5.20 Animal welfare charities, a range of individual respondents and all campaign respondents made a number of inter-related points about the definition of 'to flush'. These had the aims of (i) ensuring that a chase does not develop during flushing operations and (ii) preventing unnecessary suffering to wild mammals. This group of respondents thought the legislation should:

• Make clear that 'flushing' does not permit chasing: If a chase develops after a wild mammal has been flushed, the huntsman should be required to stop this immediately.
• Specify the minimum number of guns to be used in 'flushing' operations: The point was made that there are often a small (and inadequate) number of guns available –particularly with mounted hunts – to ensure that an animal flushed from cover can be shot as soon as possible. These circumstances are more likely to give rise to an illegal chase when the animal breaks from cover. It was suggested that the legislation should include a 'formula for determining the number of guns that should be deployed over an area of land'.
• Specify that guns must be positioned correctly outside of the cover: The legislation should not permit 'flushing' to take place unless / until guns are in position to shoot the animal as it is flushed from cover. If there are no guns in position to shoot the animal being flushed, then flushing should not be permitted.
• Introduce a limit on the number of dogs that can be used to 'flush to guns': It was suggested that this would remove an impediment to hunts which claim that the large number of dogs present within the cover can make it unsafe to shoot a fox when it is flushed. This change would also bring Scottish legislation in line with the law in England and Wales which limits, to two, the number of dogs that can be used to flush from cover.
• Place a time limit on the flushing activity: There should not be an indefinite amount of time spent doing this. Lengthy flushing operations will result in the wild mammal becoming increasingly tired and stressed. After a specified period of time, the hounds should be called out of the cover and moved on.

5.21 There was also a suggestion that further clarification of the definition of 'cover' would be helpful alongside a definition of 'to flush', as a previous court case had shown this definition to be contested. Some respondents suggested a definition, and this is discussed in relation to Question 1.10 in Chapter 7.

Views that no further definition of terms is necessary

5.22 Respondents who answered 'no' to Questions 1.5(a-c) included half of the countryside management and sporting organisations (six out of 12) and, depending on the question, between 28% and 38% of individual respondents.

5.23 In general, those who answered 'no' to these questions thought that further definition of these terms would not improve the 2002 Act, which they considered to be working well already. The point was made that no prosecution brought under Act 'has succeeded or failed as a result of there being no definition of' these three terms'.

5.24 While some in this group expressed the view that no further definition of terms was necessary (because they were 'self-explanatory'), others suggested that the definitions might change with circumstances and topography.

5.25 A third view was that adding definitions could complicate what is already a complex piece of legislation, that the interpretation of these terms should be left to the courts. It was suggested that there was a risk that adding definitions could make successful prosecutions less likely.

5.26 At the same time, respondents in this group sometimes also offered definitions of the terms (or discussed elements that the definitions should include), and these were similar to those described above.

5.27 Two of the seven animal welfare charities and campaign groups answered 'no' to Question 1.5(b) indicating that they did not think the Act would be improved by including a definition of 'to search'. These organisations (and some individual respondents) believed it was unnecessary to define "searching" as this is a word in common usage that the Scottish courts would be well able to interpret.