West Law Report

Burden of proof in cases concerning foxhunting

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 17, 2009

Burden of proof in cases concerning foxhunting
Queen’s Bench Divisional Court
Published February 17, 2009
Director of Public Prosecutions v Wright Regina (Scott) v Taunton Deane Magistrates Court
Before Sir Anthony May, President and Mr Justice Maddison
Judgment February 4, 2009

The expression “hunt” a wild mammal with a dog in section 1 of the Hunting Act 2004 did not include the activity of searching for a wild animal for the purpose of stalking or flushing it.

The combined effect of section 101 of the Magistrates Courts Act 1980 and the provisions of the 2004 Act was not such as to place a legal burden of proof on the defendant to prove the exemptions set out in Schedule 1 to the 2004 Act, although there was an evidential burden on the defendant to adduce an evidential case which raised an issue whether his activity was exempt.

The Queen’s Bench Divisional Court so held when an appeal by the Director of Public Prosecutions by way of case stated against the decision of Judge Cottle at Exeter Crown Court to allow the appeal of Anthony Wright, huntsman of the Exmoor Foxhounds, against his conviction of hunting foxes with dogs contrary to section 1 of the 2004 Act.

At the same time, the court heard an application for judicial review by Maurice Scott, Peter Heard, and Donald Summersgill, three huntsmen who had been charged with unlawful hunting.

In the first case, the crown court had proceeded on a ruling of law that the burden of disproving that hunting was exempt under Schedule 1 was on the prosecution.

In the second, there was a challenge to a pretrial ruling made by District Judge Parsons at Taunton Deane Magistrates Court that it was for the defendant to satisfy the court that his hunting was exempt.

Mr Kerry Barker and Ms Rebecca Bradberry for the DPP and the Taunton Deane Court; Mr Philip Mott, QC, for Mr Wright and the Taunton Deane applicants.

THE PRESIDENT, giving the judgment of the court, said that the verb “hunt” was used transitively and its object, “a wild mammal”, indicated an identified quarry. The legislative aim of the 2004 Act was, in part, to prevent unnecessary suffering to wild mammals. A wild mammal which was never identified as a quarry did not suffer.

In the judgment of the court, “hunts” did not include the mere searching for an unidentified wild mammal for the purpose of stalking or flushing it. That said, the question whether a person hunted a wild mammal with a dog was heavily fact-specific.

As to the burden of proof, it was necessary to make a distinction between a legal or persuasive burden placed on the defendant to prove on the balance of probabilities that his hunting was exempt, failing which he would be convicted; and an evidential burden which was a burden to adduce an evidential case which raised an issue whether his hunting was exempt, whereupon the burden would be on the prosecution to prove that in that respect it was not exempt: see R v Hunt([1987] 1 AC 352, 369, 376) and R v Lambert ([2002] 2 AC 545, 572).

Where, as here, the linguistic construction of the statute did not clearly indicate upon whom the burden of proof should lie, the court should look to other considerations to determine the intention of Parliament, such as the ease or difficulty that respective parties would encounter in discharging the burden.

Applying the principles laid down by the House of Lords in Sheldrake v DPP (The Times October 15, 2004; [2005] 1 AC 264), the court was clear that to construe section 1 of, and Schedule 1 to the 2004 Act as imposing a legal burden of proof on the defendant would be an oppressive, disproportionate, unfair and unnecessary intrusion upon the presumption of innocence in article 6 of the European Convention on Human Rights.

The 2004 Act would be reasonably workable if it imposed only an evidential burden on the defence, and was to be so construed.

The DPP’s appeal failed; the claim for judicial review in the Taunton Deane case succeeded.

Solicitors: Crown Prosecution Service, Bristol; Knights Solicitors, Tunbridge Wells and Clarke Wilmott, Taunton.

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