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February 18, 2005

The People vs. Super-nanny: The Options for Hunters and Householders

Posted by Joyce Lee Malcolm

On the day that the ban on hunting comes into force in England and Wales, Joyce Lee Malcolm - Professor of History at Bentley College and author of Guns and Violence: The English Experience - argues that there are similarities between this ban and the government's attitude to householders defending themselves against burglars. Professor Malcolm outlines the rather different options open to the two groups. Hunters may well be best served by relying on the vagaries of the Hunting Act; householders may have to rely on the good sense of juries. As with everything the Social Affairs Unit publishes, the views expressed in this article are the author's own, and not those of the Social Affairs Unit, its Trustees, Advisors or Director.

"God's hammer against cakes and ale" they called them in the seventeenth-century, those Puritans who outlawed sports, music and dance on the Sabbath. Today Labour backbenchers are a hammer against the "upper-class" country pleasure of fox hunting, ostensibly in the name of animal protection. The same politicians with little sympathy for householders fighting to protect themselves -burglars have rights too - insist police invest time and resources to protect foxes. One wonders who will get scarce jail space - violent criminals, bat-wielding householders, or hunters whose dogs kill a fox.

The issues of personal protection and fox hunting are different, but there has been a consistency in approach by the government. It is not God's, but nanny's, hammer they wield, and the government is insistent nanny knows best. The question is what are "the children" to do?

Hunt supporters have a quiver of creative answers. Two cases are wending their way through the courts and may ultimately be heard by the Law Lords. Hunt clubs are also adopting strategies to work around the new restrictions. Some 250 hunts in England and Wales, with 60,000 riders and at least 350,000 followers, will ride through the countryside testing the new law. Many will follow the scent of a dead fox. Other hunts are recreating themselves as hound-exercising clubs, taking the dogs for "walkies". Should a fox be sighted, well, dogs will be dogs.

Since even backbenchers recognize that foxes threaten farm animals, the new law permits the use of two dogs to flush a fox and shoot it, and terriers are allowed to aid gamekeepers. Thanks to Giles Bradshaw, a Devonshire farmer, a loophole has emerged that, supporters of the ban argue, drives "a coach, horses and a pack of hounds" through the act. Bradshaw may continue using his four collies to chase foxes and deer away from his land. The Hunt Act had put him in the position of "being legally obliged to purchase a high-powered rifle, which he did not wish to do, and to shoot any animal that was 'flushed' by dogs." He has been informed that "chasing away" unwanted animals does not violate the law. Bradshaw has now invited the local hunt to "chase wild mammals away" from his land.

All these variations on a theme make it extraordinarily difficult for the local constable to determine who is breaking the hunt act. Nor do most constables really want to arrest friends and neighbours. Like gamekeepers before them, who hesitated to prosecute poachers, they don't want to become local pariahs. If the League Against Cruel Sports has its way, however, they may have no choice. That organization promises a "crimewatch service" to report offending hunters.

The final recourse for hunters is massive civil disobedience. The Hunting Declaration has gathered some 40,000 people ready to break the ban, but this option is seen as a final resort, although community refusal to obey a law has an honorable history. The tactic poses a direct challenge to law enforcement that police are ill-equipped to handle.

Desperate householders have a more fundamental wrong to right and fewer options than the hunting community. Until common sense prevails and the law on self-defence changes, the only recourse for householders may be civil disobedience. In their case however, it is a lonely and perilous option. Do what you must and throw yourself on the mercy of the judicial system. This strategy of community disobedience worked well during the eighteenth and early nineteenth centuries when the notorious Black Act made virtually every criminal offence a hanging one. While Parliament stood solidly behind the Act, the community colluded to thwart it. Lord Holland complained that people refused to report offences, "lest they should endanger the life of a fellow creature, for…the paltry sum of five shillings, or even of forty shillings". Many indictments were dismissed. Those that reached the courts found jurors, and even judges, prepared to commit what Blackstone termed "a kind of pious perjury", by distorting the facts to avoid the extreme penalty. In one remarkable case the charge was stealing a ten pound note. The jury, "in the warmth of their humane feelings", committed perjury and reduced it in their verdict to below 40 shillings. It took a century for Parliament to realize that "the pain of death was not applicable to such offences". In the meantime the community had followed its own understanding of justice, sparing many lives.

Juries have been a bulwark for the preservation of individual rights because they can refuse to see injustice done. They are the individual’s final protection. Simon Jenkins, in a recent article for The Times (27th January 2005) entitled Juries: the evidence is clear…dump them dismisses jury service as "time-wasting, inefficient and expensive", a "footling business" that "should go the way of trial by ordeal, ducking stools and public hangings". In his zeal for efficiency, professionalism and the well-turned phrase, Jenkins has missed the point entirely. Magna Carta and the American Bill of Rights preserved trial by jury, not because it was efficient or helped government keep order, but because it was the cornerstone of individual rights. Justice Willes argued in an English court in 1785 that juries had the power and sometimes the right to judge the law. It was a right, he wrote, "for the most cogent reasons, lodged in the jury, as without this restraint the subject in bad times would have no security for his life, liberty or property”. Several years later, Theophilus Parsons, Chief Justice of the Massachusetts Supreme Court, explained why trial by jury was, as the New Hampshire Bill of Rights put it, to "be held sacred":

An act of usurpation is not obligatory: it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury; and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they will certainly pronounce him, if the supposed law he resisted was an act of usurpation.

Until current law is changed, the community, and in particular judges and juries, must stand firm for the rights of the individual. Happily some judges have begun to throw out cases against homeowners who harmed robbers. The people have this final recourse, to refuse to permit an injustice to occur. Abide by the law if you can, change it if you can; failing that turn to your fellow citizens for justice. Nanny may not trust the people, but they should trust each other.

Joyce Lee Malcolm is Professor of History at Bentley College and author of Guns and Violence: The English Experience.


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Prof. Malcolm makes clear that hunters and householders have different options. I think this point must be reinforced. Their cases are very different. The argument on juries simply does not apply to hunting. Offences under the Hunting Act are not tried by juries and can only go to a magistrates court. Prof. Malcolm impliciitly acknoweledges this point, but I think it needs to be made clear and explicit.

It should be added that the fact that the Hunting Act does not enable defendants to opt for jury trial should not necessarily be seen as a further curtailment of civil libertiesm - more importantly it is a reflection of the very modest sentences which the Hunting Act applies to breaches of the legislation. This is another way in which the two case are quite different. If householders defends themselves, their families, and their property, they can face a long period of imprisonment, up to and including a life sentence. If someone is prosecuted under the Hunting Act the worst they can face is a modest fine. The two cases are thus very different.

Posted by: John at February 20, 2005 01:49 PM
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The level of utter fraud in that article is frankly, amazing. Malcolm knows that, with the recent clarification of the law and the overwhelming amount of caselaw on the subject, the issue of self-defence and the home in the UK has never been more clear - homeowners who defend themselves against burglars / intruders DO NOT GET CONVICTED. The greater proportion do not even get charged, and in the very few instances that we have convictions, its because the force used was blatantly (Martin, Hastings, Lindsay) not in self defence.

One rather suspects that the reason she suggests homeowners should throw themselves on the mercy of the jury system is because she knows they will get off. Joyce, it would be a lot easier to tell the truth.

Posted by: Agricola at February 21, 2005 12:10 AM
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Angricola is discussing this at http://www.thehighroad.org/showthread.php?t=126546

He has shown his contempt for the individual right to self defense, the right to keep and bear arms, and Americans, in general over and over again at that forum.

He has it in for Malcolm as well saying that she is "flogging a dead horse." Since this is a newly implemented issue, how can it be dead? That she connects animal rightists to anti-self defense rulings is only logical. (Brits cannot carry *anything* if it is used as a weapon -- cane, umbrella, let alone a gun) Thanks to uttlerly blind "Home Office" rules, British citizens are under increased danger of being assaulted on the streets now that criminals know the advantage is against the victim, thanks to anti-rights rulings dating back to 1953.

The philosophy of the animal rights extremists are the same as those that allow criminals to go free and citizens, er Subjects to be defenseless. Welcome to Angricola's statist Utopia.

Rick

Posted by: AZRickD at February 21, 2005 06:31 PM
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Rick misrepresents Agricola comments at The High Road. Posters like Rick repeatedly make false claims about it being illegal to defend yourself in the UK, despite the law and all cases contradicting their claims. Apparently Rick believes that correcting false claims by Americans about the law in the UK shows contempt for Americans. Also, contrary to Rick's claim, violent crime in England has fallen dramatically since the mid 90s.

Posted by: Tim Lambert at February 22, 2005 02:16 AM
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Contrary to what Tim Lambert says what is happening to British crime levels is very much contested. Government figures suggest that crime rates are falling, but these are disputed. In fact a recent study by Newcastle academics Norman Dennis and George Erdos - published by the think tank Civitas (much information on this is available on their site civitas.org.uk) suggests that British crime rates are soaring.

Posted by: Jim at February 23, 2005 12:14 AM
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