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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Countryside Alliance & Ors v HM Attorney General & Ors [2005] EWHC 1677 (Admin) (29 July 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1677.html Cite as: [2005] EWHC 1677 (Admin), [2006] EuLR 178 |
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DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
THE HON MR JUSTICE MOSES
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| (1)THE COUNTRYSIDE ALLIANCE & OTHERS (2) FRANCES DERWIN & OTHERS (3) BRIAN FRIEND & HUGH THOMAS |
Claimant |
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| - and - |
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| (1)H.M. ATTORNEY GENERAL (2)THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS AND ANOTHER RSPCA (INTERVENER) |
Defendant |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
David Anderson QC and Marie Demetriou (instructed by Clifford Chance) for the 2nd Claimants
Brian Friend and Hugh Thomas (3rd Claimants)
Philip Sales; Jason Coppel and Tom de la Mare (instructed by The Treasury Solicitor and DEFRA) for the Defendants
Rabinder Singh QC and Kate Cook (instructed by Herbert Smith LLP) for the Intervener
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Crown Copyright ©
Lord Justice May:
Introduction
The Hunting Act 2004 ("The Hunting Act")
i) stalking a wild mammal, or flushing it out of cover, if the conditions in paragraph 1 of the Schedule are satisfied. The conditions include:a) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause;b) that it does not involve the use of more than two dogs; norc) the use of one dog below ground otherwise than in accordance with paragraph 2.The conditions in paragraph 2 include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground.
ii) hunting rats (paragraph 3) or rabbits (paragraph 4);
iii) retrieving hares which have been shot (paragraph 5);
iv) flushing a wild mammal from cover for falconry (paragraph 6); and
v) rescuing an injured wild mammal using not more than 2 dogs above ground on condition that reasonable steps are taken as soon as possible to relieve its suffering.
Parliamentary history of the Hunting Act
Hunting in England and Wales
The claimants
(1) Claim no. CO/835/2005 in which the claimants are the Countryside Alliance and 10 individual claimants (the Human Rights claimants). This claim challenges the Hunting Act on human rights grounds.(2) Claim no. CO/2446/2005 in which the claimants are 9 individual claimants (the European Law claimants). This claim challenges the Hunting Act on European Law grounds.
(3) Claim no. CO/967/2005 in which the claimants are Brian Friend and Hugh Thomas. They challenge the Hunting Act on grounds additional to those relied on in the other two proceedings.
Evidence
a) The Act prohibits the hunting with dogs of foxes, mink and hares but permits the hunting of rabbits and rats with dogs.
b) The Act permits the use of dogs to flush out wild mammals for the purpose of shooting them, but DEFRA claims that it does not permit the pursuit of wild mammals by dogs to disperse them, even when the landowner has no desire to harm or kill them.
c) The Act permits the use of a dog below ground to hunt a fox to prevent damage to game birds or wild birds kept or preserved for the purpose of shooting; but prohibits using the same dog below the same ground hunting the same fox to prevent or reduce damage to livestock or chickens.
Further anomalies are listed in the Appendix to the Human Rights claimants' Detailed Grounds of Challenge. They also say that the Act is arbitrary, irrational and discriminatory because it leaves fishing and shooting game birds and mammals untouched. This, they say, casts doubt on the legitimacy of the objective of the Act. Mr Bradley gives explanations for each of these anomalies in paragraphs 74-84 of his witness statement, which we find reasonably persuasive.
"I do, however, recognise that despite the work done by the Inquiry and at the Hearings, there remains a very significant difference of opinion, not just amongst legislators and members of the public, but also amongst scientists (as was made clear on day 2 of the Hearings), about what would, in general, be the most humane method of killing foxes, particularly given that shooting may not always be an available option or be carried out by skilled marksmen."
"Stalking, if carried out to a high standard and with the availability of a dog or dogs to help find any wounded deer that escape, is in principle the better method of culling deer from an animal welfare perspective."
This was supported, it is said, by clear evidence (for example, Professor Bateson). The Hunting Act enables dogs to be used to retrieve wounded deer. There is unanimous agreement that deer populations need to be managed, but hunting accounts for only a small fraction of the number of deer killed each year. Hunting deer does not occur in most parts of England and Wales where there are deer. Hunting deer only takes place in three areas in West Somerset and Devon. Even in those areas, it accounts for only about 15% of the total cull required. Deer hunting was to be banned in the original Michael Bill. As we have said, Mr Anderson, but not Mr Gordon, more or less conceded (without formally doing so) that a ban on deer hunting might be justified, although paradoxically the most acute examples of the adverse effect of the hunting ban are those concerned with deer hunting on Exmoor.
The Burns Inquiry and Report
" The practical aspects of different types of hunting with dogs and its impact on the rural economy, agriculture and pest control, the social and cultural life of the countryside, the management and conservation of wild life, and animal welfare in particular areas of England and Wales;
The consequences for these issues of any ban on hunting with dogs; and
How any ban might be implemented."
They delivered their Report on 9th June 2000 with an accompanying letter which included the following:
"Without doubt, conducting the inquiry has been a challenging experience. This is a complex issue that is full of paradoxes. We were helped by the terms of reference, which asked us to concentrate on the factual and analytical background to hunting. We have addressed those issues and we have not attempted to answer the questions of whether or not hunting should be banned. In particular, we have not sought to find a compromise solution, which we regarded as outside our terms of reference.
The result is a report that might appear long on analysis and short on solutions. But we believe that it will help to inform the debate that will follow the publication of our report.
We have travelled widely throughout England and Wales and listened to many people. We were left in no doubt about the sensitivity of the issue or the passion that it arouses. We have sought to conduct the inquiry in a very open manner. We have made as much as possible of our evidence available on the inquiry website. Our oral evidence sessions have been in public and transcripts have also been posted on the website as quickly as possible. We commissioned research papers, which were made available in draft and discussed at seminars, also open to the public.
In the process we believe that we have gone some way to reach a wider agreement about the analysis of the issues, although some important differences remain. Some of these differences could be narrowed further with more research conducted over a longer time period. Others are likely to remain because they are not capable of being resolved in this way."
The Human Rights Challenge
Article 8 – right to respect for private and family life
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"In our opinion, other aspects of fox hunting prevent its being part of the private lives of the participants. It is conducted in the open over large tracts of private and public land. … Only a landowner possessed of an extensive estate could undertake fox hunting within the confines of his own property. None of the petitioners claim to be able to do that. A typical hunt crosses the land of several owners. It is not a solitary activity. Even if only the mounted participants are taken into account, it is undertaken by a substantial number of people. For the majority of participants it is a sport, however central it may be to their lives. When followers are taken into account, the hunt takes on the character of a spectator sport. It is also a public spectacle. The fact that the hunt is inclusive rather than exclusive points against its being part of the private lives of the participants. If any competent horseman is welcome to join the hunt for a modest subscription, as the petitioners aver, the individual participant has no control over the identities or numbers of those with whom he shares the activity. Moreover, the social aspects of hunting extend far beyond the hunt itself. They involve the wider community, a point that is emphasised in Dr Marvin's Report."
The Lord Ordinary was right in concluding that fox hunting was not part of the private lives of the participants.
"As the Court has had previous occasion to remark, the concept of "private life" is a broad term not susceptible to exhaustive definition. It covers the physical and physiological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self determination as being contained in Article 8 of the Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees."
The judgment proceeds to consider the "ability to conduct one's life in the manner of one's own choosing" (paragraph 62); and observes that "the very essence of the Convention is respect for human dignity and freedom" (paragraph 65).
"Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Art. 8. The Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of "private life"."
"… the right asserted by Botta namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays concerns inter-personal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant's private life."
"Accordingly, in deciding what was the ambit of an individual's "private life" in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later state of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonably expectation of privacy."
"… the impugned ban affected, to a significant degree, the possibility for the applicants to pursue various professional activities and that there were consequential effects on the enjoyment of their right to respect for their "private life" within the meaning of Article 8."
Article 8: interference with right to respect for the home
"It seems to me that the following conclusions can be drawn from the language of Article 8(1) in the light of the observations in Marckx v Belgium 2 EHRR 330. The rights to respect referred to in this paragraph extends to the person's home. But the essence of this right lies in the concept of respect for the home as one among various things that affect a person's right to privacy. The context in which the reference to a person's "home" must be understood is indicated by the references in the same paragraph to his private and family life and to his correspondence. The emphasis is on the person's home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person's right to the peaceful enjoyment of his home as a possession or as a property right. Rights of that kind are protected by Article 1 of the First Protocol."
Lord Hope reiterated at paragraph 53 that the object of Article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy and that it is not concerned, as such, with the protection of his right to own or occupy property. Likewise at paragraph 63, Lord Hope cited a passage from Buckley v United Kingdom (1996) 23 EHRR 101 at page 115, paragraph 63, which considered whether or not a particular "habitation" constitutes a home which attracts the protection of Article 8(1).
Article 11 – Freedom of Assembly and Association
"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
"Freedom of thought and opinion and freedom of expression guaranteed by Articles 9 and 10 of the Convention respectively, would thus be of very limited scope if they were not accompanied by a guarantee to be able to share one's beliefs and ideas in community with others, particular through association with individuals having the same beliefs, ideas or interests.
The term "association" therefore possess an autonomous meaning; the classification in national law has only relative value and constitutes no more than the starting point."
This last observation went to reject a submission that there was a difference between private and public associations.
"The right to freedom of assembly is one of the foundations of a democratic society and should n