Section 5: Exception: management of foxes below ground
50.Sections 1(1)(b), 2(1)(b) and 2(2)(b) mean that a person will not commit an offence if any of sections 3, 5, 6, 7, 8 and 9 applies. Activities such as searching for, stalking or flushing from cover a wild mammal constitute hunting and therefore if none of the exceptions applies then an offence will be committed.
51.Section 5(1) sets out when section 5 applies. The person must be using a dog to search for a fox below ground or to flush it from below ground with the intention of killing it for one of the purposes set out in subsection (2), and all of the conditions set out in subsection (3) must be met.
52.Subsection (2) sets out the purposes for which the fox may be killed. Subsection (4) defines dependent, being that the mother of the fox is dead and it is too young to survive on its own.
53.Subsection (3) sets out the conditions which must be met.
54.Under paragraph (a), the activity must not involve the use of more than one dog. There is no provision for the use of more than one dog to be licensed.
55.Under paragraph (b), the dog must be under control. Section 27 includes a definition of when a dog is under control. A person who is responsible for the dog (as defined in section 2(6)) must be able to direct the dog’s activity by physical contact or verbal or audible command (although they need not be continuously doing so).
56.Under paragraph (c), permission for the activity must have been given by the owner of the land on which the activity takes place. Although it appears unlikely that activity under this exception would take place across land which is in different ownerships, if that is the case then permission will be required from each owner in order to satisfy the condition. As a result of the meaning of an “owner” of land given in section 2(5), permission may be given by a person who manages, controls or is authorised to give permission for that land to be used for the activity, such as a land manager.
57.Paragraph (d) requires that if the fox is found or emerges from below ground, it is shot dead, or killed by a bird of prey, as soon as reasonably possible. If it is shot or attacked by a bird of prey, but not immediately killed, paragraph (e) requires that reasonable steps must be undertaken to kill it in a way (other than by using a dog) that causes it the minimum possible suffering. For example, the injured fox could be retrieved and shot.
58.There is no requirement to take any action if the fox does not emerge from below ground. It is possible that the fox might be killed by the dog underground or might escape below ground. Neither of these scenarios will result in an offence being committed, provided the other conditions are met.
