Director of Public Prosecutions v Wright

For the purposes of the Hunting Act 2004, hunting a wild mammal requires an identified quarry. Mere searching for an unidentified mammal is outside section 1, although whether hunting has occurred remains highly fact specific.

The Schedule 1 conditions do not impose a legal burden requiring a defendant to prove exemption on the balance of probabilities. The defendant bears an evidential burden of raising the relied-on matters, after which the prosecution must disprove the relevant exemption beyond reasonable doubt. A legal burden would be oppressive and disproportionate to the presumption of innocence in article 6(2) of the Convention.

Anthony Wright was convicted by magistrates of hunting foxes with dogs contrary to section 1 of the Hunting Act 2004. On appeal to the Crown Court, the conviction was set aside on the basis that the prosecution bore the burden of disproving exemption under Schedule 1. The Director of Public Prosecutions obtained permission to challenge that ruling by judicial review and the Crown Court stated a case.

The same issue arose in proceedings concerning defendants charged with stag hunting before Taunton Deane Magistrates’ Court. The case stated asked whether Schedule 1 exemptions placed a legal or evidential burden on the defendant and whether hunting included searching for an unidentified wild mammal for the purpose of stalking or flushing it.

1. Meaning of hunting. The word “hunts” in section 1 is used transitively. Its object, “a wild mammal”, indicates an identified quarry. The expression does not include merely searching for an unidentified wild mammal with a view to stalking or flushing it. The question whether a person hunts a particular mammal remains fact specific.
2. Burden under Schedule 1. Section 1 does not clearly impose a legal burden on the defendant. The diverse and extensive conditions in Schedule 1 do not fit readily within the narrow class of statutory exceptions discussed in R v Edwards and R v Hunt. The court must consider the substance of the provision, the legislative purpose, and the practical burden on each party.
3. Applying the principles in Sheldrake v DPP and R v Lambert, a legal burden would permit conviction where the court retained a reasonable doubt about guilt. It would therefore be oppressive, disproportionate and unfair, particularly because some Schedule 1 conditions are neither readily provable by the defendant nor within his knowledge.
4. The Act is to be construed as imposing an evidential burden. The defendant must raise the matters relied on sufficiently to require the prosecution to address them. The prosecution need not disprove every theoretical exemption, but ordinarily needs to disprove one condition of the relevant exemption. A defendant should raise substantial matters of defence at a proper time, subject to the ordinary consequences of late disclosure.
5. The formal answers were: question 1, no, but there was an evidential burden on the defendant; question 2, no. The judicial review claim in the Taunton Deane proceedings succeeded, and the prosecution was to proceed in accordance with the judgment.

The judgment describes the earlier decision in R (Countryside Alliance) v Attorney General, which was upheld on appeal by the Court of Appeal and the House of Lords. The present proceedings concerned a Crown Court case stated and related judicial review proceedings.