Hunting with Birds of Prey

As the traditional boxing day hunts come around, it is a timely reminder that this area of law is still far from clear. Hunts with hounds and birds of prey remain an area open to interpretation as mentioned in the interim injunction case of Fitzwilliam Land Company and others v Cheesman and others [2018] EWHC 3139 (QB). 

​A key issue in the response to this injunction was whether the hunt was illegal due to the use of hounds and birds of prey. The Hunt suggested that they were not acting unlawfully as they were hunting on an artificial trial laid, with hounds. On the occasion the hounds would find a fox, they would continue to flush the fox into open ground upon which a bird of prey, a Golden Eagle, would be used to kill the fox. The Respondents argued as recorded in paragraph 37 of the judgement that: 

... that the activities do not come within the exemption even if the evidence given by the Claimants is correct.  He submitted that the Claimants have the following difficulties.  First, there is a period during which the hounds pick up the scent, but before flushing from cover.  That is said to be hunting for the purpose of the Hunting Act 2004, and not flushing from cover.  Secondly, the flushing is not for the purpose of enabling a bird of prey to kill the wild mammal.  That is because the evidence of Mr Hunter is that at that stage there are two options, namely to enable the eagle to hunt the fox or to allow the fox to escape.  Since there are two options, it is said that there is not a purpose which is established at the point of the flushing.  Thirdly, it is not inevitable when the hounds pick up the scent they are flushing it from cover because the fox could be roaming around and not under cover.      
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The matter is set out in more detail at paragraph 23 of the written skeleton argument of Mr Underwood QC and Mr Adam Tear.  Mr Healey was not able to say very much in response about the detailed arguments, but he says that there are likely to be factual matters in response and questions of construction about the Act.  I shall return to the illegality in the context of balance of convenience, but noting at this stage that the arguments about illegality are at this stage persuasive, without in any way deciding the same one way or the other.

The judge noted that it was persuasive at this stage that the Hunt may have been acting unlawfully when hunting in this manner. The Respondents did not take part in the final determination of the issues in the matter, and it appears it was never determined. As such it remains a live, ongoing issue.