Hare Coursing

Published: 5 July 2018|Legal Guidance

Contents

Introduction

This legal guidance provides prosecutors with information to assist in reviewing and prosecuting cases of hare coursing. Hare coursing is the pursuit of hares with sight hounds, which chase the hare by sight and not by scent. This type of offending can also be known as hare poaching. Hare coursing can take the form of organised events in which dogs are, by the use of live hares, assessed as to skill in hunting hares. Often this is a competitive activity, in which substantial sums of money are bet.   As well as being an issue of animal welfare, offending in order to facilitate hare coursing can also have a wider impact. This can include vandalism of property, loss of income for farmers and landowners, theft, intimidation and road traffic issues including the driving of unlicensed and uninsured vehicles. Hare coursing can cause significant disturbance in the countryside and is a cause of serious concern to those who live in rural communities.

Casework handling

AG/DPP consent is not required for offences within this chapter of legal guidance and referrals are not required to SCCTD or DLA.

CPS Areas have wildlife coordinators who can assist prosecutors in dealing with these cases.     

Wildlife Crime Officers and Coordinators

Most Police Forces have appointed a designated Wildlife Crime Officer (WCO). Upon receipt of a wildlife prosecution file you should check to see if your force WLO has been involved with the investigation. If they have not been, it will be advisable to involve that person in any observations you may have to make about the evidence and/or requests for further inquiries to be made.  Most CPS Areas have a wildlife coordinator. Wildlife coordinators are usually responsible for wildlife cases although this may not be the case in all CPS Areas. 

Offences  

Primarily there are three pieces of legislation which fall to be considered for charge:

  • Section 30 Game Act 1831
  • Section 1 Night Poaching Act 1828
  • Hunting Act 2004 

Section 30 Game Act 1831

This creates two separate offences in relation to trespassing during the day in search of game, depending on the number of people involved (an offence involving five or more people carries a higher fine). It states: 

“If any person whatsoever shall commit any trespass by entering or being in the daytime upon any land in search or pursuit of game or woodcocks, snipes or conies he shall on conviction… [be liable to a fine not exceeding level 3 on the standard scale] and . . . if any persons to the number of five or more together shall commit any trespass…each of such persons shall, on conviction be liable to a fine not exceeding level 4 on the standard scale]”   

A level 3 fine is currently a maximum of £1000, a level 4 fine is a maximum of £2,500. 

Both offences are subject to a three month time limit for the purposes of the commencement of any prosecution. 

“Game” is defined in section 2 of the Act and includes hares. “Daytime” is defined in section 34 of the Act as being from the beginning of the first hour before sunrise until the end of the first hour after sunset.  Consequently any offence committed at night must be prosecuted under section 1 Night Poaching Act 1828 (see below). 

It is most important to note that there is no requirement under this Act for anything to be actually chased or caught for the offence to be committed. Trespassing on land to look for something to chase is sufficient. In that regard, Section 30 is frequently much less problematic evidentially to prosecute where the element of trespass is present, for reasons which are fully explained below under the Hunting Act 2004. 

Section 1 Night Poaching Act 1828 

Only deals with offences committed at night. Two separate offences are created by section 1. 

The first provides that it is an offence if, by night, a person “unlawfully” enters onto land (i.e. trespasses) and takes or destroys game or rabbits. 

The second one provides that it is an offence if, by night, a person is “unlawfully” on land with a “gun, net engine or other instrument” for the purposes of “taking or destroying any game”. 

The terms “gun” or “net” are self-explanatory but “engine or other instrument” are not. A wide definition of the latter has been accepted by the courts and includes anything used in the commission of the offence. It is not uncommon to see this legislation used in “lamping” cases when offenders enter onto private land at night with dogs and/or guns and high powered lamps to seek out and dazzle the prey before killing it. Lamps in such circumstances would meet the definition of “other instrument”. 

Section 13 defines “game” as including hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards. Rabbits are not included in the definition of “game”. 

Therefore only an offence under the first limb of section 1 can be charged if the animal involved was a rabbit. An offence under the second limb of section 1 cannot be charged in relation to rabbits. Prosecutors should be aware of suspects seeking to claim they were intent on taking rabbits and not hares in order to avoid conviction under the second limb. Consideration should be given to charging under the first limb unless there is clear evidence to support the assertion that the suspect was unlawfully on the land with a relevant item for the purposes of taking or destroying hares or the other species of game as defined by the Act. The offence under either limb is punishable with a fine not exceeding level 3 on the Standard Scale (maximum of £1000). It is a summary offence and subject to the usual six month time limit for the commencement of prosecutions. 

The Hunting Act 2004

The issue of hunting is a contentious one and this was reflected in the debates during the passage of the legislation through Parliament. Sections 1 and 5 of the Hunting Act 2004 are the most relevant to hare coursing cases. Whilst there is now no compulsion on the police to refer cases to the CPS in which a case is being considered for charge under the Hunting Act, forces are very strongly urged to talk to one of the Area Wildlife Specialists pre charge. The two main areas which frequently give rise to difficulties regarding section 1 relate to whether “a hunt” has actually occurred for the purposes of the Act and what the liability is of onlookers. Prosecuting anyone for participating in a hare coursing event pursuant to section 5 requires very close scrutiny of what section 5 actually says and whether the available evidence proves the existence of a competition to assess the skill of the dogs.  

Section 1 - A person commits an offence pursuant to Section 1 of the Act if he hunts a wild mammal with a dog unless the hunting is exempt. 

Hunting is described in section 11(2) of the Act as follows: 

For the purposes of this Act a reference to a person hunting a wild mammal with a dog includes, in particular, any case where: 

  1. a person engages or participates in the pursuit of a wild mammal, and
  2. one or more dogs are employed in that pursuit (whether or not by him and whether or not under his control or direction). 

A mammal is a creature whose female of the species has mammary glands, i.e. suckles its young. The hare and about 4000 other species are mammals. 

The Act makes it clear that hunting with dogs includes engaging alone or participating with others in the pursuit of a wild mammal where a dog is used in that pursuit. Hunting is an intentional activity and there can be no such thing as unintentional hunting. It is not an offence if a dog goes off on its own, out of the control of its owner and hunts of its own volition. It is the person who commits the offence, not the dog. 

The issue of whether ‘hunting’ under the Act included the searching for an as yet unidentified or unidentifiable wild mammal was examined in the joined cases of DPP (Crown Prosecution Service CCU South West) -v- Anthony Wright; and The Queen on the Application of Maurice Scott, Peter Heard & Donald Summersgill -v- Taunton Deane Magistrates’ Court [2009] EWHC 105 (Admin). These cases established that there must be evidence adduced to prove that there was an actual pursuit of a wild mammal before a person can be said to be hunting within the terms of the Act. Searching for an as yet unidentified animal will not suffice. There is no requirement though for the animal to be actually caught – evidence that it has been caught is helpful, but it is not a pre-requisite for conviction. 

Hence once an illegal hunt begins, only a person who engages or participates in the pursuit of an ‘identified’ wild mammal is guilty of an offence. It is therefore essential to establish whether the police have gathered evidence to support this ingredient of the offence when assessing whether the evidential stage of the Full Code Test in the Code for Crown Prosecutors has been met. 

The terms “engage” or “participate” mean to take an active and direct part in the hunting of the mammal, as distinct from observing. Those who observe a hunt for the sake of observing the hunt are not technically hunting under the Act. It may be argued, subject to the availability of the necessary evidence, that followers are aiding and abetting the hunt by encouraging those who actively participated but in the absence of any positive action on their part this would be very difficult to prove. 

Any gathering before a hunt will not constitute hunting for the purposes of section 1.  There can be no offence of attempting to hunt as the section 1 offence is summary only and only either way and indictable-only offences can be charged as attempts under the Criminal Attempts Act 1981. 

It should also be noted that some hunting is exempt for the purposes of Schedule 1 of the Act. The nine exemptions rely on the hunter either being the landowner or hunting with the landowner’s permission. In cases where the offenders are trespassers and clearly won’t have permission, none of these exemptions will be available to them. 

Section 5 outlaws hare coursing and contains wider provisions than those relating to hunting wild mammals. The offence in section 5 is precisely drawn but some confusion may arise where ‘illegal hare coursers’ are prosecuted. Such persons are trespassers and commit an offence under the Game Act. Where trespass to land is an ingredient of the activity said to constitute an offence under section 1 or section 5 of the Hunting Act 2004, it will generally be easier to continue to prosecute under the Game Acts. Section 5 does not encompass what might be described as hare coursing that is recreational, it requires proof of a competition. Section 5 will clearly capture large, well organised hare coursing events, such as the old Waterloo Cup. It is much less easy to prove in other circumstances unless there is strong supporting evidence of competitive elements such as betting on the outcome.. 

Section 5(1) provides: 

A person commits an offence if he: 

  • participates in a hare coursing event;
  • attends a hare coursing event; 
  • knowingly facilitates a hare coursing event; or 
  • permits land which belongs to him to be used for the purposes of a hare coursing event. 

“A hare coursing event” is defined in section 5(3) as: a competition in which dogs are, by the use of live hares, assessed as to skill in hunting hares. This definition is restrictive in that it requires proof of a competitive event and that it was to assess the skill of the dogs. 

“Participates” - this means taking part in, and will therefore catch those who take part in the ‘competition’ which is the essential feature of a hare coursing event. As with the definition of hunting, the definition of a hare coursing event requires that a ‘competition’ has begun. 

“Attends” - unlike the section 1 offence of hunting with dogs, being present at what is a hare coursing event, even as a spectator is an offence under the Act. 

“Knowingly Facilitates” - a person who facilitates something makes it happen or makes it easier for it to happen. That would appear to catch those who organise or promote a hare coursing event. This sub-subsection cannot be aimed at those who allow their land to be used, as that is specifically dealt with by sub-subsection (d). It catches those who set out the course, set up the admission table, provide the prizes. It should also include those who take steps to prevent the illegal event from being disrupted by the police or campaigners.

Section 5(2) creates offences relating to involvement with a dog which participates in a hare coursing event:  Each of the following persons commits an offence if a dog participates in a hare coursing event:  

any person who enters the dog for an event: 

  • any person who permits the dog to be entered 
  • any person who controls or handles the dog in the course of or for the purposes of the event 

It is important to note that the issue of ownership of the dog does not arise in the definition of these offences. 

Section 6 of the Act provides for what is now the potential for an unlimited fine on conviction, following the enactment of section 85 Legal Aid Sentencing and Punishment of Offenders Act 2012, which applies to such offences committed since 12/03/2015.  These are summary offences and subject to the usual 6 month time limit for the commencement of any prosecution. 

Other legislation can be used against offenders in certain circumstances – such as Road Traffic legislation and the Criminal Damage Act 1971(often, though not exclusively, in connection with crop damage, damage to gates etc.) also Public Order Act offences if e.g. threats have been made or abuse given to witnesses. 

Dispersal cases 

In some cases the police will seek to use dispersal powers to disrupt the activities of poachers in circumstances where significant numbers of offenders attend or are planning to attend a particular area for a hare coursing event. 

The relevant sections are in sections 34 to 39 of the Anti-Social Behaviour Crime and Policing Act 2014. 

Under section 34 (1) a police officer of at least the rank of Inspector may authorise the use in a specific locality, during a specified period of not more than 48 hours of the powers conferred by section 35. An officer may give such authorisation only if satisfied on reasonable grounds that the use of powers in the locality during that period may be necessary for the purpose of removing or reducing the likelihood of members of the public in the locality being harassed, alarmed or distressed or the occurrence in the locality of crime or disorder (section 34 (2)).  An authorisation must be in writing, signed by the officer giving it and must specify the grounds on which it is given (s34(4)). 

Section 35 (1) provides that if the conditions in sections 35 (2) and (3) are met and a section 34 authorisation is in force, a constable in uniform may direct a person who is in a public place in the specified locality to leave it or part of it and not to return for the period specified in the direction (“the exclusion period”).  A public place means a place to which at the material time the public or a section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission (s35(11)). 

The first condition is that the constable has reasonable grounds to suspect that the behaviour of the person in the locality has contributed to or is likely to contribute to the following events: 

  • Members of the public in the locality being harassed, alarmed or distressed or 
  • The occurrence in the locality of crime or disorder 

The second condition is that the constable considers that giving the direction to the person is necessary for the purpose of removing or reducing the likelihood of such events. 

A direction must be given in writing unless that is not reasonable practicable, must specify the area to which it relates and may impose requirements as to the time by which the person must leave the area and the manner in which he should do so, including the route. 

Failure to comply with the notice constitutes a criminal offence and is punishable with a maximum of 3 months’ imprisonment and/or a fine not exceeding level 4 on the standard scale (£2,500). 

Evidence gathering

Evidence should be presented in an admissible form, paying particular regard to any requirement for continuity evidence regarding exhibits.

Landowners’ statements  

These must include confirmation of ownership of the land in question by reference to an exhibited plan of the same. It is also essential to confirm that nobody has been given permission to be on the land and that anyone seen on it is consequently a trespasser. The fact that there is an active brown hare population on the land in question should be confirmed as should what crop was on the field(s) in question, at what growth stage the crop was and whether any damage has occurred or will potentially occur as a result of the unlawful activity – crops being driven over, trampled underfoot etc. The landowner should also deal from the outset with whether there are any public rights of way over the land and these should be identified on the plan exhibited if they exist.

Maps and plans

Whoever is a witness to events should make his or her statement by reference to an exhibited map or plan, on which relevant activity is marked and which is easily referable to the plan produced by the landowner above. It can be the case that there are sightings of the same persons and/or vehicle at different locations. Timings and distance are often very important in building a picture of the activity alleged and for that reason an area map with sightings marked thereon is helpful, as is an indication of the distances between the relevant points.

Timelines

Where there is movement around a particular area as referred to above, it is also often useful to produce and exhibit a timeline of sightings.

Visual evidence

Video or other photographic evidence of the offence can be highly effective, if it is of reasonable quality. It is very hard to counter and often leads to early guilty pleas. Good photos of the alleged offenders (showing clothing and muddy boots for example), their dogs, vehicles and any pertinent equipment when spoken to by the police are key to demonstrating the activity alleged and provide useful cross referencing to any moving footage and witness descriptions.   Body worn camera footage is similarly helpful in that context. In contested cases, it may be appropriate to ask the police for photographs of the scene where the activity occurred to assist the court in understanding the geography and any witnesses’ sight lines. Aerial footage is particularly good for these purposes. If any dead hares were found either at the scene or in the vicinity of the offenders then good and clear photographs should be taken of them and, in an appropriate case, consideration should be given to seizing the carcass. More information on this is provided below.

DNA evidence

Enquiries in this regard are expensive but there may be cases where, for example, it is possible to match DNA from a dead hare to a particular seized dog. Prosecutors should liaise with the police to determine whether the circumstances of an individual case justify such enquiry. The decision whether to seek a DNA examination is an operational decision for the police.

999 calls

999 calls made when the illegal activity is still occurring and the information given can provide useful evidence in the form of a live commentary on what happened. Such evidence may be admissible at any trial under the “res gestae” principle so discs of relevant calls, carefully edited of personal information, should be provided on submission of an NGAP file. It may also be of assistance to the witness making the call when giving evidence if they cannot subsequently recall everything that happened, assuming they are in a position to confirm that everything said in the call was correct.

Eyewitness evidence

Whether this comes from a police officer or a member of the public, similar observations apply. The witness should address:

  • Where the witness was when they first became aware of the offender(s).
  • Where the offender(s) were by reference to a marking on a map or plan. If the offender(s) were seen to move around then their route should also be marked on a map or plan.
  • Similarly if any vehicles were seen at or near the location then such should be described and index numbers recorded. Location and route of same should be marked on an exhibited plan.
  • Descriptions of each of the offenders by reference to physical appearance, including clothing.
  • Any dogs and physical descriptions of the same.
  • Crucially whether the dogs were on or off lead and what they were doing. Was any injury to any dog noted at any stage or any blood seen on it? Did it exhibit any signs of having been involved in a recent chase?
  • Where were the offenders walking in relation to each other? If they were apart, how far apart were they? Did they appear to be walking in any formation?
  • Did the witness see any brown hare at any stage and, if so, what happened to it?
  • Police evidence should be careful to record any coursing associated equipment seen or seized.

Identification evidence

The provisions of PACE Code D apply to this type of criminal offence just as much as to any other criminal offences. It is not possible to opt out of the duty Code D imposes. Where a witness indicates an ability to make an identification of an offender then an identification procedure should be held. Any failure to do this risks evidence being ruled as inadmissible and cases failing as a result.

Expert evidence

Many police force areas will have a Wildlife Specialist Officer or another officer who has received relevant training and also has relevant experience on the ground and perhaps also in a previous capacity, such as a gamekeeper or farmer. There is no reason in principle why such an officer should not make an expert statement giving useful expert evidence. Such statements should comply with Part 19 of the Criminal Procedure Rules (SI 2015 No. 1490) and, in particular, rules 19.3 and 19.4. It is recommended that where a force does have an appropriately qualified officer then they should make a statement compliant with CPR 19 and this statement should be submitted with all files for prosecution. 

Mobile phone/computer evidence

Mobile phones or other technology is often seized from alleged offenders. These can provide useful evidence – call and text logs may reveal planning texts, as well as communications passing between alleged offenders at or immediately before the time of the alleged offending. GPRS data may reveal where a handset is at a relevant time. Cell site evidence may also assist with showing where the handset was at relevant times and demonstrate co location with other relevant handsets at relevant times. In appropriate cases seized mobile phones should be interrogated to retrieve relevant evidence.

Sometimes there will be recordings of the alleged offence or of earlier offences of the same type which can be used as direct evidence of the offence being prosecuted or as evidence of an offender’s bad character –see below.

Bad character evidence

On an NGAP case, an MG16 should be submitted for each offender who has relevant previous convictions with as much factual background as can be gathered in order for an application to be made at the first hearing of the matter. It is important to remember in this connection that it is not merely previous convictions which fall to be considered for admission at trial. Bad character also encompasses “a disposition towards misconduct on his part” (section 98 Criminal Justice Act 2003). “Misconduct” encompasses not just the commission of an offence but also “other reprehensible behaviour” (s 112 (1)). Reprehensible connotes some element of culpability or blameworthiness. It might include within the context of hare coursing the possession of footage of previous coursing incidents, membership of a Facebook group dedicated to the shared experiences of those involved in such offending or similar. It is therefore extremely important that what might constitute bad character in its widest sense is fully considered before the completion and submission of any MG16 and that all relevant material in support is supplied with the file.

Defences

A common defence is that offenders were walking on a public footpath. The landowner should provide evidence to show whether there are public rights of way over the land and these should be identified on the plan exhibited if they exist. Please see the section on evidence gathering.

Public Interest

In the context of wildlife crime 'public interest considerations' should be taken as including the following:

  • The biodiversity status of the species involved;
  • The potential danger to the public, companion animals or livestock
  • The level of public outrage; and
  • The extent of (or potential for) suffering caused to the hares involved.

Aggravating factors 

  • These include:
  • Adverse impact on an individual specimen or species locally, nationally or internationally;
  • Public outrage;
  • An element of additional suffering;
  • Organised activity and/or evidence of advanced planning;
  • Commercial basis (either for personal gain or as part of employment);
  • The offence involves one or more species benefiting from special protection;
  • Conduct of the offender after detection has contributed to either the concealment of specimens or the causation of further harm to either the specimen(s) or to the species;
  • Multiple offences or large number of specimens involved.

Mitigating factors 

These include:

  • Accused played a minor part;
  • Minimal loss, or negligible damage;
  • Age of offender;
  • Conduct of the offender after detection leads to the recovery of live specimens or a reduction in the harm caused to the specimen(s) or species;
  • Offender acted under the direct instructions of his or her employer.

In addition, attention must be paid to the specific circumstances of the offence under consideration.

In cases involving youths, which pass the evidential sufficiency stage, consideration should first be given as to whether any further action is required. If action is required then diversion should be considered in the usual way before any decision to prosecute is taken.

Sentencing

There are currently no sentencing guidelines for the hare coursing and poaching offences referred to in this legal guidance or the dispersal offence. There are also few cases which the courts can rely on by way of precedent.

Victim personal statements and community impact statements

There are three types of impact statement which should be available to the court at the point of sentence. They are:

  1. Victim Personal Statement
  2. Community Impact Statement
  3. Species impact statement

Victim Personal Statement

The Victim Personal Statement gives the victim a voice in the criminal justice process and provides a structured opportunity for the victim to state how the crime has affected them – physically, emotionally, psychologically, financially or in any other way and a sentencing court must not make assumptions unsupported by evidence about the effects of a crime on the victim. Some farmers receive grants or subsidies to preserve areas of land for wildlife conservation. Some farmers have a particular interest in species conservation and are distressed by poaching activity within that context. If this is the case, it should be confirmed in a Victim Personal Statement. Some will have experienced similar activity on many previous occasions. If that is the case then the landowner should be asked to give further details and confirm how past and current experience has affected them and possibly their family too.

More information can be found in the victim personal statement legal guidance.

Community impact statement

The Community Impact Statement is a tool that gives the community a voice in the law enforcement process. Guidance on their use was issued by the Ministry of Justice in July 2010.

A Community Impact Statement is a document illustrating the concerns and priorities of a specific community over a set time period. The statements are compiled and owned by the police and take the format of a section.9 witness statement which should be made by someone of at least the rank of Inspector. Community Impact Statements may be used by the police to inform pre court disposals including charging decisions, by the CPS to inform charging and conditional caution decisions, by probation to inform sentencing proposals and by the judiciary to inform sentencing decisions. They will also be used by Youth Offending Teams to inform restorative justice cases where appropriate as well as by Community Safety Partnerships to inform decisions on strategic local interventions. The Community Impact Statement is designed to make community views more visible to crime and justice service providers and used as a mechanism to feed community views directly into the justice process. Community Impact Statements will enable crime and justice practitioners to consider offences in the context in which they are committed and take account of the harm inflicted on the wider community. There are two different types of community impact statement; generic and specific.

In compiling this kind of statement the police should reference views expressed by the rural community as the result of Community Engagement, whether formal or informal. This may, for example, take the form of views and data provided by relevant organisations such as the National Farmers’ Union and Countryside Watch. The statement should also reference numbers of reported incidents during a given period to show prevalence. It is a living document which requires regular updating as information and statistics change and MUST be submitted with every file, irrespective of anticipated plea.

More information can be found in the community impact statement legal guidance issued by MoJ.

Species Impact Statement

A specific form of community impact statement relevant to wildlife crime cases is the “species impact statement”. There is currently a Species Impact Statement made by an officer of Natural England dated 13/03/2014 which deals with the numbers and distribution of the brown hare population and addresses the potential effects of the illegal activity. Prosecutors dealing with such cases may want to enquire of the police if they wish to include that statement or a more recent version as part of the case

Ancillary orders

Please see the legal guidance on Ancillary Orders for detailed information on the orders discussed below.

The police will often make an operational decision to seize dogs believed to have been used for hare coursing and may decide to retain them in kennels pending the outcome of criminal proceedings. Such kennelling costs cannot be recovered using the general power to award prosecution costs in section 19 of the Prosecution of Offences Act 1985 or under the court’s powers to award compensation under sections 130 to 134 Powers of the Criminal Courts (Sentencing) Act 2000. Prosecutors should not seek reimbursement of police kennelling costs under those provisions.

The police should indicate clearly in section 8 of the MG5 what orders are sought in each particular case.

The possible orders are:

Disqualification from driving – s.146 Powers of the Criminal Courts (Sentencing) Act 2000

Under this section a court by or before which a person is convicted of any offence may, instead of or in addition to dealing with him in any other way, order him to be disqualified for such period as it thinks fit, from holding or obtaining a driving licence (s146(1)).

This is a useful provision in hare coursing cases as, offenders often travel considerable distances to commit the offence. Given that travel has facilitated the offence, it is arguable that disqualification can be appropriate for passengers as well as drivers

Compensation

The court’s power to award compensation is governed by sections 130 to 134 Powers of the Criminal Courts (Sentencing) Act 2000. A court by or before which a person is convicted of an offence, instead of, or in addition to dealing with him in any other way, may, on application or otherwise, make an order requiring him to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court when determining sentence.

A court must consider making a compensation order in any case where it is empowered to do so and if it does not make a compensation order in any case where it is empowered to do so, it must give reasons in open court.

The court may compensate for actual injury, loss or damage but it may also compensate distress and anxiety. Authority for that proposition is to be found in Bond v Chief Constable of Kent [1983] 1 All ER 456. A VPS can be useful in evidencing this.

The court has no jurisdiction to make a compensation order without receiving any evidence where there are real issues raised as to whether a claimant has suffered any, and if so what, loss.

Forfeiture and Deprivation

It is not appropriate for the CPS to apply for the forfeiture or deprivation of items the police do not have in their possession due to the difficulty of trying to recover them after the event – experience has shown that to be extremely problematic. It is therefore very important that each file should clearly confirm what, if anything, has been seized as the result of the alleged offence and what orders are sought in relation to such items.

Section 4A Game Law (Amendment) Act 1960 (as inserted by Schedule 9 of the Criminal Justice and Public Order Act 1994) – forfeiture of vehicles

This section only applies to offences committed by five or more persons pursuant to section 30 Game Act 1831. It has no application to offences committed by four persons or less. Under this section, if the court is satisfied that any vehicle belonging to him or in his possession or under his control at the relevant time, has been used for the purposes of committing or facilitating the commission of the offence, the court may make an order for forfeiture in respect of that vehicle.

In utilising this section the court may disregard any restrictions placed on forfeiture by any other Act, the vehicle does not have to have been used to transport the offenders or equipment to or from the land alone, the use of the vehicle to avoid arrest or detection will suffice. If the vehicle has been loaned by its owner to the convicted poacher, the owner may apply to the court for the return of the vehicle but the onus is on him to prove to the satisfaction of the court that he had no knowledge of the illicit use to which the vehicle was put. 

Section 143 Powers of the Criminal Courts (Sentencing) Act 2000 – powers to deprive offender of property used etc. for purposes of crime

This is the main power of the court to order the forfeiture of property connected with the commission of an offence.

Where a person is convicted of an offence and the court by or before which he is convicted is satisfied that any property which has been lawfully seized from him, or which was in his possession or under his control at the time when he was apprehended for the offence or when a summons in respect of it was issued

  • Has been used for the purpose of committing, or facilitating the commission of any offence, or
  • Was intended by him to be used for that purpose, 

the court may make an order under the section in respect of that property.

Section 143 (5) confirms that in considering whether to make an order under the section a court shall have regard to both the value of the property and to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making). If an order under section 143 is sought the file must contain reliable information about the value of the property seized.

The type of property captured by this section is very wide ranging. The court’s powers are discretionary. The section will include vehicles, dogs and any associated coursing equipment.

The court’s power to order deprivation of dogs is a valuable deterrent tool in the prosecution of coursing offences but applications need to be confined to those that truly merit them.

Section 9 Hunting Act 2004

Where a court convicts a person of an offence under section 1 of the Hunting Act 2004, section 9 provides for the forfeiture of any dog or hunting article or vehicle which was used in the commission of the offence or was in the offender’s possession. The forfeiture order may include provisions about the treatment of the dog, vehicle or article. A person commits and offence if he fails to comply with the order.

Criminal Behaviour Orders (CBO)

For full information on the requirements and conditions of CBOs, please see the full CPS CBO legal guidance.

As with issues of seizure, CBO applications should be reserved for appropriate cases and not made as a matter of course.

As regards appropriate terms to be sought for CBOs in hare coursing cases, the following wording is suggested:

  1. Not to be in (county) in possession of any lurcher or lurcher type dog.
  2. Not to be in (county) in company with another or otherwise associating with another person or persons who is or are in possession of any lurcher or lurcher type dog
  3. Not to trespass on any land in (county) whilst in possession of a lurcher or lurcher type dog or whilst in company of or otherwise associating with another person or persons who is or are in possession of any lurcher or lurcher type dogs.

In extreme case involving someone who has committed offences throughout a particular region, it may be appropriate to apply for the restrictions to apply to a wider geographical area. Care should be taken to ensure any exclusion areas are clearly specified in the order and it is good practice to use a plan for the avoidance of doubt.

Restraining Orders

For full information on the requirements and conditions of CBOs, please see the full CPS restraining order legal guidance. If such an order is to be sought, a draft order must be included on file setting out the precise terms sought. The views of the victim of the offence should also be sought.

There may be scope to apply for Restraining Orders on conviction in hare coursing cases in terms which include not simply the landowner victim but also other landowner victims in a wider defined area. The scope for applying for a Restraining Order on acquittal (s.5A) is likely to be limited to the landowner in question, given the differences between the wording in sections 5(2) and 5A.

Whilst the use of Restraining Orders in appropriate cases should not be excluded as a possibility, careful consideration should be given as to whether the more appropriate application in any given case is actually for a Criminal Behaviour Order, which reflects the wider ranging anti-social behaviour.