6. Flushing to Guns
6.1 The most controversial issue in the Review has been whether and to what extent the mounted hunts operating in Scotland engage in activities which constitute illegal hunting. Those are activities which, if done deliberately by a huntsman, could result in conviction under Section 1(1) of the Act. The submissions made to the Review include a number of pieces of video, a few of which depict events from which it might be concluded that either a scent or a fox was being chased by the pack. Some written submissions contain accounts of activities that could have been part of a chase of a fox by hounds. These include individual personal experiences as well as accounts of monitoring by animal welfare organisations. Animal welfare organisations have made submissions on the basis of intelligence, observation and film to the effect that these packs continue to engage in hunting in the sense of using hounds to chase and kill foxes. On the other hand none of the submissions contain evidence of hounds actually killing a fox. In contrast to those submissions, many other submissions make the point that the mounted hunts have altered their practices to provide a pest/fox control service which is welcomed by farmers, estate managers and landowners, and assert that that service is carried out in strict compliance with the terms of the Act.
6.2 While the mounted packs can point to the paucity of criminal proceedings to support their contention that illegal hunting is not taking place, the difficulty of proving an allegation of illegal hunting when a hunt operates over a wide area, and in particular identifying the huntsman and his control of the pack as "deliberately" hunting a wild mammal with the pack, should be borne in mind. In a number of the examples of the activities of mounted hunts filmed and presented to the Review by the League against Cruel Sports, hounds were present with a view to flushing out a fox or foxes and could in some instances be seen working their way through gorse and undergrowth. In carrying out their activities the hunts rely on the exception under section 2(1) of the Act which permits the use of the pack to flush a fox from cover to be shot.
6.3 The League placed emphasis on the apparent absence of any guns located at points where it might be expected a fox would emerge, or in some instances the apparent absence of any guns at all. They also highlighted film of hounds in a line in open countryside apparently following a scent, as well as hounds apparently chasing foxes. Other video material portrayed hounds engaging in a chase in open country but with no quarry in sight. Representatives of the Scottish Countryside Alliance and the Scottish Gamekeepers Association were invited to comment on these films. In some instances that produced an explanation of what was happening that could be consistent with there being no offence, including indications that firearms might be there, hidden from view in a quad-bike, or that the "guns" would be in a place of concealment to avoid detection by a fox.
6.4 It is said that the camera never lies. However the way in which film is presented does not always show the whole picture. A full account of the circumstances may provide a complete answer to any suggestion of illegal hunting. That is not to suggest that film material was presented in a way designed deliberately to mislead the Review, as has been observed in the course of the Review. In some instances it remains distinctly possible that the video is sufficiently complete to show that there is a case to answer. It is not appropriate to try to make a final determination on any individual case.
6.5 What can be said is that it is possible that the way in which the exemption of flushing to guns is applied in practice, and the view that those who participate in the activities of mounted hunts have of what constitutes flushing, may well have resulted in hounds on occasion engaging in chasing a fox after it has been flushed from cover.
6.6 Quite apart from what may be seen on, and inferred from, the video material, evidence from the Scottish Countryside Alliance and the Scottish Gamekeepers Association highlighted an apparent difference in approach to the deployment of guns by mounted hunts on the one hand and foot packs on the other. Mounted hunts conduct activities in accordance with a voluntary fox control protocol which includes co-operation with the police. That protocol specifies that in providing a fox control service to farmers and landowners using hounds "a minimum of two guns should be available". Apart from the fact that that minimum number is not stated in mandatory terms, the evidence presented to the Review suggests that, where a full pack of hounds are being used, there are few circumstances in which two guns would be adequate to ensure that a flushed fox would be shot.
6.7 Hunting takes place over variable terrain. Searching and flushing above ground in relation to foxes occur in areas of cover. Once a fox breaks from cover and is out in the open, the flushing is over. There may be circumstances where there is a short break between areas of cover and it may be said that the fox moving from one area to the next one has not been flushed out into the open. Determining when flushing is complete and the fox is out in the open will in many cases be dependent on an interpretation of the whole circumstances. The flushing to guns exemption in section 2(1) requires the huntsman to "act(s) to ensure" that once the wild mammal is found or emerges from cover it is shot "once it is safe to do so". That imposes a requirement on the huntsman to plan ahead and deploy his guns in appropriate locations to achieve the objective of a safe kill. The material recorded on film, seen by witnesses and set out in submissions indicates that there may be circumstances in which flushing develops into a chase because the area through which the search and flush is taking place is so far from the location of the limited number of guns available.
6.8 Although it was said in a number of submissions that foxes follow routes that are familiar to them and the experienced huntsman or marksman is aware of them and takes up position having regard to his experience of the locality, just as many stressed the unpredictability of the exit point. In response to one enquiry about the number of guns used when searching and flushing through an extensive area, one comment made was that you can never have too many guns.
6.9 If the explanation for the remote location of the guns is that deploying them closer to the likely exit points from cover would make it unsafe to shoot, then the search and flushing location chosen may not be a suitable one for the use of the section 2 exception for pest control.
6.10 The practice with foot packs is quite different. The Scottish Hill Packs Association submission to the Rural Affairs Committee on the Bill stated that their members used foxhounds and terriers to flush foxes from cover to where they could be shot by experienced marksmen. Their practice does not appear to have changed. Up to 40 guns may be placed strategically around the point in an area of the cover it is intended to use the hounds to try to press the fox towards. Depending upon the nature of the cover, somewhere between 10 and 20 guns would routinely be deployed to ensure that all escape routes are covered. The very act of positioning the guns can take anything up to an hour to complete with the assistance of radio communication. Only when the guns are in position is the area of cover drawn. The evidence presented by both the Scottish Countryside Alliance and the Scottish Gamekeepers Association painted a consistent picture of a determined effort to despatch the fox as quickly, and within as limited an area, as possible.
6.11 The Lanarkshire and Renfrewshire Hunt also carry out pest control work on foot. In contrast to their mounted pest control work when two or three guns are used, there may be up to twenty guns when they work on foot. In Fraser v Adams at paragraph 53 the Sheriff said this in relation to the deployment of guns:
"It appears to me, therefore, that while Parliament, in terms of the Act, has recognised that there is certain limited and defined scope for the legitimate use of dogs in activities which are specified in each of the sections which I have mentioned, namely and broadly speaking, stalking, searching and flushing, that activity will require to be accompanied by realistic and, one would expect, effective arrangements for the shooting of pest species. The use of what might be termed 'token guns', or what was described by the Crown as paying lip service to the legislation, is not available by virtue of sections 2(2) and 5(3) as a justification for the continuation of what was referred to in the evidence before me as traditional fox hunting."
6.12 That distinction between the activities of foot packs and those of mounted packs reflects their respective histories. The former were created as a means of addressing the need for pest or predator control and that continues to be their function; the latter were essentially sporting societies which have tried to adapt to the environment where using a pack of hounds to chase and kill a fox has been outlawed. That may also explain why the work of foot packs has the appearance of a diligent pest and predator control operation, whereas among mounted hunts pest control can appear to be incidental to the primary objective of exercising horse and hounds. It is difficult to view the deployment of two or three guns in fairly open countryside, where a full pack of hounds are being used and there is a wide range of escape routes for a flushed fox, as complying with the obligation of the flusher to "act…to ensure" that it is shot.
6.13 The activities of a mounted hunt engaged in flushing to guns bear many similarities to the hunt's pre-2002 activities. Those participating in and following the hunt gather at a suitable point of departure where they meet and greet their friends and are briefed by the huntsman. The mounted followers have the opportunity to ride out over beautiful countryside to which they would not otherwise have access and occasionally take up a position to divert a running fox from its escape route back to the guns. The foot followers can travel by vehicle to suitable vantage points from which they can observe the huntsman control the pack. A wide range of members of the rural community of all ages engage with the hunt in these ways. Other related activities foster further social interaction. The hunts continue to make a major contribution to the social cohesion and community spirit of the locality and to highly valued features of rural life. All involved enjoy watching the hounds work under the control of the huntsman and those assisting him to find and flush the fox.
6.14 The major change is that the hunt is now accompanied by guns to shoot the fox to avoid the chase and kill by the hounds. However, submissions and evidence presented challenge the claim by the mounted hunts that the chase has been eliminated and that their kills are achieved exclusively by activity that falls within the exception in section 2 of the Act. There is before the Review material on the basis of which an impartial observer would be entitled to suspect that there are occasions when the packs of mounted hunts engage in chasing foxes when on the face of it the huntsman is in control of the pack. The evidence is not conclusive, but equally the suspicion that it gives rise to cannot be dismissed as groundless.
6.15 There is a considerable degree of scepticism, certainly among opponents of hunting and there are many of them, that the changes made in the practices of the mounted hunts to provide a pest control service do not go far enough to ensure the elimination of the chase and the kill elements of traditional fox-hunting. There is a danger that the inevitable mystery that surrounds the activities of hunts, because their activities tend to be conducted away from the public gaze in remote parts of the countryside, simply adds fuel to that suspicion. Ideally the grounds for that suspicion should be addressed. Clearly suspicion of illegal activity is not an adequate basis for deciding that the Act is not working as it was intended to or condemning the hunts or outlawing a practice that has been changed with a view to complying with the law. It is, however, a basis for considering whether reasonable measures can be put in place to determine whether the suspicion is well-founded and, if so, steps can be taken to ensure that it is eliminated.
6.16 Some participants in mounted hunts harbour a grievance that their activities are unfairly singled out in the debate on account of a perception of privilege. Many on both sides of the debate are deeply suspicious of those on the other side. Yet the experience of the Review and the interaction observed on the limited occasions opponents have met during the Review give cause for optimism that it should be possible to agree on a way of trying to verify whether the suspicion of illegal hunting is well-founded. The strong feelings that exist on both sides of the debate have been taken into account in making that assessment. It is important that public confidence in the effectiveness of the legislation is maintained. An essential element in achieving that may lie in demonstrating that mounted hunts provide a genuine and effective pest control service that eliminates the chase and the kill. That is addressed further in the next chapter.
6.17 There are occasions in the course of the work of both mounted and foot packs when a fox is caught and killed by the hounds before it can be flushed from cover into the open and when a fox is wounded by the guns when it emerges from cover and is killed by the hounds. In addition, a fox which goes to ground may on occasion be killed by the terrier which is placed into the hole to flush it out or keep it at bay pending its being dug out. The Act recognises the likelihood of these events occurring by providing in section 2(2) that where the dog is being used "with the intention of" flushing the wild mammal from cover or from below ground to be shot, there is no offence where the dog kills the fox "in the course of that activity".
6.18 Section 5(1)(c) providing for the retrieval or location and thereafter the capture, treatment or humane killing of a wild mammal, which is reasonably believed to be seriously injured or orphaned, is understood by hunts to authorise the use of the pack to chase after an injured fox to catch and kill it. Some of the film material presented to the Review shows hounds apparently in pursuit of a fox which those involved in hunting considered, on viewing the film, was "seriously injured", albeit the fox continued to run.
6.19 The material before the Review suggests that more foxes are killed by hounds in the course of flushing or further to being wounded than are killed by terriers in the course of flushing from below ground. Purely on the basis of anecdotal evidence, it appears that in general 20% or more of foxes disturbed by hunts are killed in this way by hounds.
6.20 Terriers come into play when the fox goes to ground  . That may be seen as an escape route by either a fully fit fox or one that has been seriously injured. In the former case section 2(2) would apply and in the latter section 5(1)(c). A terrier is then used to locate the fox underground, to bark at it continuously, and to either cause it to leave the earth or alternatively to indicate where in the earth it is located so that it can be dug out by the terrierman and despatched. Before the terrier is put into the hole a radio transmitter device is attached to it so that it can be located for that purpose should there be any material delay in the fox and the terrier emerging from the hole. The Code of Conduct of the National Working Terrier Federation ( NWTF) recommends that, wherever possible and practical, only one terrier should be entered to ground at a time. The legislation does not impose such a restriction. It seems sensible that it should.
6.21 Again the information available to the Review about the extent to which terriers are deployed in these circumstances is anecdotal. However it does indicate that hunts involving packs of dogs are routinely accompanied by terriermen with terriers which are often required. As an example, the annual summary report from one hunt referred to earlier  recorded the deployment of terriers on 27% of the occasions when the fox was killed.
6.22 While it is acknowledged that on occasion the terrier may kill a fox in that situation, that is said to occur infrequently. Very strong representations about the importance of the use of terriers below ground have been made to the Review. Were the use of terriers below ground to be prohibited, then a significant proportion of the fox control work of mounted and foot hunts would be wasted effort. The fox having been located, the terrier is seen as part of the team to be deployed when otherwise the fox would escape to cause more damage.
6.23 There is a great deal involved in mounting a hunt. Hounds and, if mounted, horses have to be taken to the areas of cover to be drawn. The guns, who are usually experienced shots, have to take time out from their other activities. Where the landowner is not an affiliate or supporter of the pack, there is a not insignificant fee to pay. The fox can cause considerable loss to country enterprises through predation on poultry, game and livestock, particularly lambs. There is a powerful argument for completing the fox control exercise by digging out the fox once it has been located.
6.24 To be set against that is the nature of this element of hunting. It does involve a standoff between fox and terrier and occasional encounters between the two. Some would probably find film of a fox being held by a terrier as both are removed from the hole following digging out to be distasteful. The digging out itself can take some time to complete. Powerful submissions to the Review favoured ending the practice.
6.25 It was strongly represented that the last thing a terrierman wants is an encounter between his terrier and the fox with the risk of injury and incapacity that that carries. The terrierman's livelihood depends on a fit terrier. In the case of each of the mounted hunts it is a requirement that the terrierman is a member of the NWTF, adheres to their Code of Conduct and holds a firearms certificate. The NWTF Code of Conduct has been adopted by the Scottish Hillpacks Fox Control Association and is endorsed by the Scottish Gamekeepers Association.
6.26 The Burns Report reflected concern about terrier work and at paragraph 9.20 listed a number of possible approaches, which included making different provision for different parts of the country depending on the perceived needs of the area. In Scotland, however, the use of terriers appears to be spread over the country and the extent to which they are required to be dependent on the nature of the terrain. A clear difference in the requirement for terriers according to the area of the country has not emerged in the course of the Review.
6.27 The material presented to the Review is persuasive of the need for the use of terriers to ensure the despatch of a fox gone to ground. The principal issue is ensuring that the practice is used humanely and not abused. The rules of the MFHA require that the huntmaster or someone of authority personally appointed by him should supervise the terrierman's operation.
6.28 Parliament legislated to allow flushing from below ground in the full knowledge of the possibility that the digging-out process, combined with the fact that the fox is prevented from escaping may cause serious distress to the fox  . As was the case at that time, there is no firm scientific evidence of the extent of the impact on the fox. Indeed it was observed in the Burns Report  that the banning of hunting could have an adverse effect on the welfare of foxes in upland areas unless dogs could be used at least to flush foxes from cover. The same would apply in the case of young cubs orphaned below ground in a den.
6.29 In the event that it is accepted that the use of terriers is a necessary ancillary to fox control using packs of hounds or other dogs, then it would be appropriate to specify clearly that only one dog should be used below ground. Public confidence in the activities of terriermen could be enhanced if all undertaking that activity were committed to adherence to an enhanced Code of Conduct drafted by the NWTF, following consultation with the principal bodies involved in terrier work in Scotland such as the MFHA, the Scottish Hillpacks Fox Control Association and the Scottish Gamekeepers Association, and designed to reflect the position in Scotland in the light of any changes that result from this Review.
6.30 An example of a provision which might be included in any Code of Conduct would be a requirement to attach to any hole from which the fox might bolt a purse net which would restrain the fox and enable it to be immediately shot. There could also be provision for the hounds to be removed from the proximity of any possible bolthole to ensure that no chase takes place.