Following an incident where the Crawley and Horsham Hunt spent over three hours digging into a badger sett at the Heaselands Estate, Haywards Heath, West Sussex (home of Sir Richard Kleinwort and Lady Lucinda Kleinwort), Sussex Police have led the way with new guidelines designed to prevent a repetition.
During the November 2006 incident, hunt monitors caught the terrier-men digging into a sett. The hunt claimed they were trying to rescue their terrier. Police called to the scene took guidance from a wildlife officer over the phone, who said it would be difficult to determine the active nature of the sett because so much digging had taken place, and allowed the dig. Later, an independent study by Surrey Badger Group found the badger sett was active.
The Hunting Act provides a “gamekeepers exemption” which allows a single “soft” terrier to be used to flush a fox out of an earth to be shot on an estate where the landowner has given written permission and, rears birds for shooting. Digging a fox earth during terrier use is only allowed to rescue a terrier. Badger setts remain protected. The use of terriers by fox hunts indicates foxes are being illegally hunted to ground and monitors should emphasise to police that this provides reasonable suspicion of an offence; any signed landowner’s permission to use terriers also provides a paper trail to the landowner’s complicity in illegal hunting.
Sussex hunt monitors believe these new guidelines need to be adopted nationwide, and the Countryside Alliance is so worried about the guidelines, that Sussex police inform us that have been contacted by top notch QCs from London, seeking copies of the guidelines with a view to mounting a challenge. However, Sussex Police are confident their guidelines are sound.
Operational Guildelines For Officers Dealing With Allegations of Interference With Badger Setts
Over the years Sussex Police has received a number of allegations of badger sett digging, normally arising from the activities of fox hunts or similar. These situations are invariably very confusing and have led to a number of complaints. The following guidelines are designed to assist officers at the scene.
On receipt of a report of interference with a badger sett, police officers should attend whether the land concerned is public or private as the allegation of badger sett interence represents an allegation of a crime in progress.
On attendance, police officers should instruct any individuals who are present at the scene who are interfering with what might be a badger sett, to stop that interference. Activity that must stop includes digging, the placement of any items across holes that might represent part of a sett, and the placing of vehicles or heavy machinery with 10 metres of a sett. There must be no further interference from anyone at the scene and officers should note at that early stage, any signs of physical interference with the sett. That interference can include examples such as straw having been placed in holes, logs of wood placed across holes, or other signs of interference such as spade marks cut into the soil around the sett.
Officers in attendance should then assess what they are dealing with, based on what they are being told by all those present. In particular they should note whether any presons at the scene have written evidence of the land owner’s permission to undertake activity on the land in question. Officers should also note the equipment being used, including dogs, spades or other tools.
Having conducted that initial assessment, if officers are in any doubt they must assume the sett is ‘live’, i.e. still being used by badgers.
Via the resourcing centre, the RSPCA should be contacted for independent advice, with attendance from the RSPCA being requested if at all possible. The purpose of that assessment from the RSPCA is for a view as to whether the sett is active, inactive, possibly a fox earth or represents some other type of animal use.
Whilst the above is being considered, officers at the scene may come under pressure to allow the digging of the sett for the recovery of dogs. As per DEFRA guidelines, if dogs are in a hole or sett, the owners of those dogs must wait, and digging can only restart if they have a DEFRA licence to do so. DEFRA state in their guidelines that in the vast majority of cases dogs will come out of such locations of their own free will.
Officers should then remain at the location until the RSPCA attendance or advice is received. Officers should then remain at the location until RSPCA attendance or advice is received. Officers will have a right to remain at the scene to prevent what they believe is likely to occur, i.e. a breach of the peace.
If RSPCA officers are unavailable to give advice, then advice can be sought from a Force Wildlife Crime Officer if one is on duty, but the decision as to action rests with officers in attendance. A WCO cannot make a decision on action, without actually attending.
There may well be dead animals on the scene, particularly dead foxes. RSPCA officers will decide on the seizure and police will assist with seizure if need be but will not retain corpses. However, if we are asked to retain a corpse from then passing in fast time to the RSPCA, we will do so.
If the scene is confusing and officers need further advice and guidance, they should ask a supervisor to refer to DEFRA guidelines.
A key principal that should be followed is that if officers who attend are in any doubt, they must assume that the sett concerned is a badger sett and that it still has badgers present and therefore no digging should take place or be allowed to continue unless there is clear evidence of a DEFRA licence being in place.
Power to Enter Private Land
It is important to note that there is no power to enter private land under the Protection of Badger Act 1992. However there are other powers, which, in certain circumstances do give police the power to enter private land.
Badgers are protected under Schedule 6 Wildlife and Countryside Act 1891. Section 11 of this act protects Schedule 6 animals from being killed using certain methods. These include – Use of traps, snares, nets, poisons, electrical devices, dazzling devices, automatic or semi-automatic weapons, night shooting devices.
Section 19(2) Wildlife and Countryside Act gives police power to enter private land (but not a dwelling) to:
- arrest a person if the constable has reasonable grounds to suspect is committing or has committed an offence under this part of the act.
- stop and search a person if the constable suspects with reasonalable cause evidence of offence will be found on the person.
- seize and detain anything which may be evidence of the offence.
Section 8(5) Hunting Act 2004 – a constable may enter land, premises (not a dwelling) and vehicles in order to stop and search anyone resonably suspected of committing or having committed an offence of hunting or hare coursing. A constable may seize and detain the vehicle or animal to be used as evidence in any prosecution for a hunting or hare coursing offence.
Police officers are entitled to enter premises to prevent a breach of the peace and to remain there in order to do so (Thomas V Sawkins 1935). Where a breach of the peace takes place on private property, there is no requirement to show that the resulting disturbance affected members of the public outside the property (McQuade v Chief Constable Humberside 2002).