3. Fox-Hunting Before and After the Act
Prior to 2002
3.1 Some of Scotland's mounted hunts can trace their history back to the 18 th century. Throughout the 18 th, 19 th and 20 th centuries and into the 21 st century they hunted with packs of hounds which chased, caught and killed the fox. Scottish hill packs, i.e. packs of hounds controlled by a huntsman on foot accompanied by colleagues acting as beaters, can trace their origins back to the 17 th century when groups of men with dogs were engaged to root out foxes. The modern day hill packs emerged from the 1960s onwards in response to major changes in the landscape, particularly large tracts of forest planting providing a haven for foxes. They generally teamed up with groups of gamekeepers, farmers and others usually engaged in land management, with shotguns or rifles with which they shot foxes flushed from cover by the pack of hounds. In Caithness there was also a terrier pack. Many gamekeepers, farmers, landowners and estate managers also carried out fox control on their own land using a handful of dogs of a variety of breeds to flush the fox to be shot. A number of foxes would be killed by the hounds or another dog.
3.2 The mounted hunts operated as sporting societies controlled by a committee elected by subscribers who followed the hunt on horseback or on foot and were joined by casual followers as it suited them. Ownership of the pack might be independent of the hunt. The huntsman, whipper-in and kennel-man were likely to be engaged as paid employees. The member organisations of the Scottish Hill Packs Fox Control Association, formerly the Scottish Hill Packs Association, each had a membership comprising farmers and landowners who paid a subscription and used the services of the pack for pest control. The pack could also be hired by non-members on payment of a fee.
Changes in Number of Hunts and Packs Post-2002
3.3 The 2002 Act does not distinguish between mounted hunts and foot packs. It has had little impact on the numbers engaged in the activities of either. They are constituted as before.
3.4 Before the Act came into force there were ten mounted hunts based in Scotland. The Eglinton Hunt has since been incorporated into the Lanarkshire and Renfrewshire Hunt. Those currently in existence are:
- The Berwickshire
- The Duke of Buccleuch's
- The Dumfriesshire and Stewartry (formed post-2002 and filling the gap left
- by the demise of The Dumfriesshire)
- The Fife
- The Jedforest
- The Lanarkshire and Renfrewshire
- The Lauderdale
- The Liddesdale
- The Kincardineshire (formerly The Grampian)
The Border and the College Valley and North Northumberland cross-border packs are based in England but carry on their activities at times in Scotland. The Liddesdale no longer hunts on horseback but on motorcycles, quad-bikes and foot. Other hunts also operate at times on foot. The Masters of Foxhounds Association ( MFHA) is the governing body of fox-hunting and represents 176 packs of foxhounds that hunt in England and Wales. All of the Scottish mounted foxhound packs and their huntmasters are members of the Association. The MFHA oversees the operation of all registered packs and its members are bound by its rules.
3.5 The Scottish Hill Packs Fox Control Association, which has been an active participant in the debate both now and in 2000-2002, now has three member packs, viz:
- The Lochaber and Sunart Fox Control Association, Strontian
- The Atholl and Breadalbane Fox Control Association, Pitlochry
- The Three Straths Fox Control Association, Tomatin
Two of the member packs at the time the Act was passed have since ceased to operate for personal reasons associated with their huntsmen. In Perthshire the Strathappin Foxhounds, which hunt on foot to marksmen, has since been formed and has since 2009 been registered with the MFHA. There are no minkhound packs based in Scotland, but packs based in other parts of the United Kingdom do visit Scotland occasionally as requested.
3.6 Outwith these formal organisations there are packs of hounds of varying sizes privately owned by individual owners who are engaged by farmers and landowners for pest control purposes. Their own dogs are also routinely and widely used by farmers, gamekeepers, estate managers and landowners in their pest control activities as they were prior to 2002. The fact that the Scottish Gamekeepers Association has over 5000 members gives some indication of the extent of this activity.
3.7 The Macaulay Land Use Research Institute ( MLURI) report  indicated that, prior to 2002, about 18,000 foxes were killed each year by the various fox control methods employed in Scotland. Other research  indicated that the total fox population was viewed as stable at around 23,000 in spite of an annual birth-rate of over 41,000, of which another 20,000 perished from other causes, largely road-kill. There is no suggestion of an increase in the fox population. In fact there is material  before the Review to indicate a reduction since 2002 for reasons unrelated to the subject of this Review.
3.8 The MLURI report estimated that mounted hunts, which at that time did not use firearms, accounted for about 543 foxes each year and the hill packs about 850. There is no central record kept. Anecdotal information allows only a vague overall estimate to be made. There may now be more killed by the guns accompanying the mounted hunts, but no reason to think that the total is more than 800. The 2015/2016 Season Summary produced by one mounted hunt  records 100 foxes being roused and 94 shots fired. The statistics recorded are that 54% were killed by the guns, 19% by the pack and 27% were dug out.
3.9 Enquiries made of the Scottish Hill Packs Fox Control Association indicate that they now account for fewer foxes than prior to 2002. Since 1978 a fox control scheme designed to address the predation of lambs has provided financial support to fox control clubs which have the object of systematic control of foxes in a conveniently workable area of adequate size during the spring control period from 1 February to 30 June. The returns for 2015 record that 717 foxes and 685 cubs were killed in connection with claims under the scheme submitted by 15 of the 19 clubs currently recognised under the scheme. All three hill packs take part in the scheme. The majority of foxes killed by the clubs are shot. Over the country as a whole a large majority of foxes killed are shot, e.g. by lamping, by individual landowners, estate managers, farmers and gamekeepers without the assistance of a pack of hounds, and far fewer are snared. Nevertheless the use of packs of hounds to flush out foxes to be shot remains a significant pest control measure, both to control the general level of foxes in an area as well as to address particular problems affecting a farm or estate.
Changes in Practice Post-2002
3.10 The 2002 Act was followed in 2004 by not dissimilar legislation enacted by the United Kingdom Parliament to apply to England and Wales, the Hunting Act 2004 ("the 2004 Act"). Both Acts led to changes in the practices followed by mounted hunts. Both Acts create an offence of hunting a wild mammal with a dog. The 2002 Act then spells out in sections 2 to 6 a number of exceptions, that is situations in which there is no offence. In the English and Welsh legislation these are referred to as "exemptions" and set out a bit differently in Schedule 1. Under both Acts one of the exceptions/exemptions permits a person, for certain specified purposes, to use dogs to stalk or flush out the wild mammal to be shot. In Scotland the whole pack may be used; in England and Wales, no more than two dogs may be used.
3.11 The purposes for which this can be done in each jurisdiction are again similar but expressed differently. In Scotland they include "controlling the number of a pest species" and "protecting livestock, ground-nesting birds, timber, fowl (including wild fowl), game birds or crops from attack by wild mammals". Since the Act came into force, it is the practice of mounted hunts in Scotland to offer farmers, landowners and estate managers a pest/fox control service using the pack of hounds to flush out a fox or foxes to be shot by strategically placed guns, a practice that was not followed by any of the mounted hunts prior to 2002. The fox-hunts on which they engaged two or three times a week from autumn to spring, and often beyond, which involved the use of the pack of hounds to locate, chase, catch and kill foxes, have now been replaced by pest/control activities under the above exceptions. The potential for this development was not addressed specifically in the debates on the Bill. If it was a development that the mounted hunts had in mind at the time, neither the police nor the Crown as prosecuting authority envisaged it happening.
3.12 In contrast to what has happened in Scotland, the exemption in the 2004 Act, Schedule 1, paragraph 1(2)(a), which provides that stalking or flushing out a wild mammal for the purpose of preventing or reducing serious damage which a wild mammal would otherwise cause to livestock, game birds, crops, etc, has not led to hunts in England and Wales offering to provide a pest/fox control service, principally because of the limitation to two dogs. Instead, hunts in England and Wales engage with a pack of hounds in an exercise known as "trail hunting", developed following the implementation of the 2004 Act and designed to provide an activity for packs of hounds that will ensure their continued existence as working packs. Trail hunting involves the hunting of a scent laid manually in such a way as best to simulate traditional mounted hunting activity. The trail is laid along the line a fox might take when moving across the countryside. Trail hunters use animal-based scent, primarily fox urine, a scent with which the hounds are familiar and with which it is intended they should remain familiar. That combination of circumstances is claimed by animal welfare campaigners to lead on occasion to the pack encountering a fox and the fox being hunted in contravention of the Act. In some circumstances the defence advanced has been that that the encounter was accidental and that hunting was not intended  . Trail hunting has the incidental benefit that packs of hounds are ready for action should the 2004 Act ultimately be repealed, as many involved in hunting hope.
3.13 Trail hunting resembles a long-standing practice known as "drag hunting" in which a pack of hounds is used to follow a man-made artificially laid, but chemically-based, scent over a predetermined route. The quarry of the drag hounds is a "drag", i.e. a piece of absorbent material to which the scent is applied and laid across the ground by a rider or runner. The scent is repeatedly applied to the drag en route. The scent is unrelated to the scent of a wild mammal. Drag hunting continues to be widely practised in England. It has occasionally been practised in Scotland in the past. In a similar vein bloodhound packs hunt human scent in hunts organised in a way that closely resembles drag hunting. Drag hunting differs from traditional mounted fox-hunting in respect that it involves riding at speed in pursuit of the obvious drag rather than the slow and often laborious search for the scent of a fox.
3.14 Against that background, it has proved difficult to make meaningful comparison between the situation in Scotland and that in England and Wales. However, it is worthy of note that the way in which some mounted hunts now operate in Scotland and the practice by mounted hunts of trail hunting in England and Wales have both given rise to suspicion that organised mounted hunts have continued to hunt foxes with a pack of hounds in contravention of the legislation. The former allegation is addressed later. I have described the practice of trail hunting in a little detail since that could be introduced in Scotland were the number of dogs that may be used to be reduced to two as has been proposed in many of the submissions.
3.15 In relation to foot packs, there is no evidence to indicate that their practices have changed significantly and no allegations of illegal hunting have been presented to the Review.