IN THE MATTER OF THE HUNTING ACT 2004
ADVICE
1. Those instructing have presented me with a number of cases which involve what has been
termed “cold marking”. There appears to be a degree of uncertainty about the extent to
which cold marking is lawful or unlawful, and I am asked to advise accordingly.
2. I have considered the question of cold marking in the context of both the Hunting Act 2004
(“the Act”), and the principal reported authority:
EWHC 105 (Admin).
FACTUAL BACKGROUND
3. Cold marking arises typically where a pack of foxhounds is engaged in trail hunting with a
huntsman, and the pack is diverted by the scent of a fox to a patch of ground where the fox
is either hiding, or has, at some stage earlier, passed through. The hounds identify the
presence of a fox by barking loudly, and walking round in smaller or larger circles with their
noses to the ground.
4. To the experienced huntsman, this is clearly a sign identifying the presence of a fox. What
happens then is that the terrier men are called to the scene, and when they arrive the
huntsman and hounds withdraw to a safe distance.
5. The terrier men and their assistants then block up the entrances to the earth where the fox
has been identified, saving only one or two possible exits which may then be covered with
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netting in order to trap the fleeing fox. A terrier is then put into the principal remaining
entry. The terrier men wait while the terrier does its work, and when the fox is flushed, it is
caught and/or killed directly, using a firearm.
LEGAL POSITION
6. Hunting begins, pursuant to the judgement in
identified. The Administrative Court explicitly left open (at paragraph 37) the question of
whether on the facts of that case (with which those instructing are extremely familiar) Mr
Wright was hunting the second fox which he never saw (on the finding of the Recorder of
Exeter) but which his hounds were pursuing. The Court decided that a finding of hunting in
such circumstances would be fact specific.
7. Thus in a situation where
DPP v Anthony Wright & others [2009]Wright at paragraph 30, when a quarry is•
hounds are pursuing a trail, but•
then hunting within the terms of the Act will begin at the moment the huntsman
become diverted into pursuing the scent of an identified fox,•
becomes aware that the hounds are pursuing the scent of a fox, and•
and experience of the terrain, country, fox behaviour etc) that the hounds will be
sidetracked into pursuing a fox which eventuality then arises whether with or without his
direct knowledge.
8. Thereafter the attempt to dig an identified fox out of the earth is also hunting. A huntsman
may attempt to withdraw from the joint enterprise (with the terrier men) at this time, but if
he has been using a full pack of hounds he cannot avail himself of the exemptions under
Schedule 1 of the Hunting Act.
9. If no fox is seen, the consequence is an evidential problem rather than a legal one. Thus in
the Merstone Lakes incident, the monitors do not obtain footage of any fox. The hunters
might argue evidentially that they were engaging in some other sort of activity (e.g. hunting
rabbits or rescuing their dog). But in the context of the other activities, digging and putting
the terrier underground would not begin unless the terrier men, on the basis of the behaviour
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and indications given by the foxhounds, believed that a fox was there. Where there is no
footage of a fox however, it reduces the evidential chances of a conviction.
10. Those instructing raise the question of the age of the scent which is pursued to the point
where the hounds smell a fox. The age of the scent is of no relevance. If the scent is a fox
scent, then it is from an identified fox or foxes, and the ‘marking’ starts as I understand it at
the point where the scent goes underground. Where there is an identified fox, there is a hunt.
11. Thus I take the view that cold marking is hunting. If there is an initial pursuit of a fox or the
scent of a fox by the pack, then no exemption will arise.
12. Otherwise, if there is no evidence of how the fox’s location underground was identified, and
the hunting starts with the terriers being placed into the ground, then whether it is exempt
hunting or not depends on whether the participating individuals can raise an issue that the
fox is being flushed out for the purpose of preventing or reducing serious damage to game
birds or wild birds which a person is keeping or preserving for the purpose of their being
shot.
13. Any investigator should keep a record of all locations in the relevant area where birds are
kept or preserved for shooting purposes.
14. Investigators should also be aware of the very substantial frequency with which foxes take
refuge in badger setts. Any structure or place which displays signs indicating current use by
a badger is protected under Section 3 of the 1992 Protection of Badgers Act from any
interference by either damaging it, obstructing access to it, or causing a dog to enter it,
where any such interference is either intended or recklessly undertaken. The s.3 offence
carries a maximum sentence of 6 months imprisonment. Thus terriermen or others who
involve themselves in damaging or blocking setts, or sending a dog in, need to be very
careful indeed to avoid committing what is a serious offence in the canon of wildlife crime.
15. Thus in summary, cold marking cannot properly be used as an excuse or defence by hunting
organisations. Trail hunting is of course perfectly legitimate, but hunts need to be careful not
to allow their hounds to be sidetracked by fox scents.
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16. Counsel so advises.
25 June 2009
Richard Furlong
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before that, if it can be proved he is aware of the possibility (given e.g. his knowledge