The respondent had been acquitted of causing unnecessary suffering to rabbits (contrary to the Protection of Animals Act 1911, s. 1(1)) by releasing them into a fenced enclosure from which they had no reasonable chance of escape, before setting dogs after them. Dismissing the prosecutor's appeal, the Divisional Court held that the respondent's conduct fell within the exception provided for "hunting or coursing" by sub-s. (3) (b) of s. 1of the 1911 Act. From the moment that the captive animal is liberated to be hunted or coursed, it falls outwith the protection of the 1911 Act, irrespective of whether the hunting or coursing is humane or sportsmanlike.
Mr Justice RIDLEY:
In this case an information was preferred against the respondent under the Protection of Animals Act, 1911, s. 1, for unlawfully causing unnecessary suffering to certain captive animals, namely, fifty-five rabbits, by causing the same to be worried by dogs. The magistrate after hearing the case dismissed the information because although he thought the respondent did cause unnecessary suffering to the rabbits, yet he thought also that what was done was protected by s. 1, sub-s. 3, of the Act, as having been "coursing or hunting of captive animals." It appears that a "rabbit coursing meeting" was held at a place called Cobridge on October 18, 1915, at which the respondent was judge and referee. The dogs were those known as whippets, and the coursing was held upon a portion of a football ground, which portion was surrounded by a fence, from which the chances of escape for the rabbits were "negligible," and from which they could not in fact escape. The rabbits were brought in crates to the meeting and were taken one by one by the respondent out of the crate and dropped on the grass within the enclosure about sixty or seventy yards from the place where the dogs and their attendants were waiting. This enclosure was a space of two and a half to three acres, being 140 yards by 90 or thereabouts. On the rabbit being dropped upon the grass an official fired a pistol and the dogs in turn were slipped upon the rabbit. It is unnecessary further to follow the facts; for undoubtedly there was ample evidence to support the magistrate in his finding that unnecessary suffering was caused to the rabbits. But the question that arises is whether what was done was "coursing or hunting" within the meaning of the Act. The words of the statute are as follows:
"Nothing in this section shall apply .... (b) to the coursing or hunting of any captive animal, unless such animal is liberated in an injured, mutilated, or exhausted condition; but a captive animal shall not, for the purposes of this section, be deemed to be coursed or hunted before it is liberated for the purpose of being coursed or hunted, or after it has been recaptured, or if it is under control."
I think that what was done would certainly be called coursing in a popular sense; and it was coursing a captive animal. Nor were the rabbits liberated in an injured, mutilated, or exhausted condition. So far, therefore, the exception given by the Act applies. But it was contended for the prosecution, first, that the rabbits were not "liberated for the purpose of being coursed" because they could not escape from the field, and that in order to be "liberated" they must have entire and complete liberty. But it seems to me that the word has only reference to the animal being let out from the crate or basket in which it has been kept captive - in other words, it simply means "let loose." The same word is used in the first sentence "unless such animal is liberated in an injured .... condition," and there it certainly has reference merely to the condition of the animal at the time when it is let loose. So it appears to me that the word in the second sentence also means "let loose," and that the animal is none the less liberated because when set free from the basket there was still a limit set to its liberty by the fence which it could not pass. It was secondly contended that even if liberated the rabbits were still "under control" within the meaning of the section; that the limits set to the course by the fence of the field constituted a control; that the words had application while the actual course was taking place. But hunting as well as coursing is included in the section - indeed, they are coupled together; and if it can be shown that in the case of hunting the words must bear a particular sense, it seems to follow that in the case of coursing they must bear a similar sense, at all events not one entirely different. Further, the word "recaptured" placed before the words we are now dealing with suggests that these words are concerned with a control existing after the course or hunt is over. Now in what sense are the words used in the case of hunting a captive deer? When set at liberty the animal is within the exception during the run; but when recaptured and confined again it is not, for it has been recaptured and is under control. So that the period of control is not during but after the hunt. It is true that in this species of rabbit coursing recapture practically does not exist; but I think that when the Legislature dealt with hunting and coursing together it must be taken that it was supposed that it must take place in the one as well as in the other. The words therefore must be read with a like meaning in each case; and on this reasoning they have no application to the period while the course is taking place, and do not include cases where escape is prevented. It would have been easy to use words which would have done so. The magistrate therefore was at liberty be find that the exception of "coursing" included the respondent's acts, and was right in dismissing the information.
Mr Justice BRAY:
In this case the respondent was charged under the Protection of Animals Act, 1911, s. 1, with having unlawfully caused unnecessary suffering to certain captive animals, to wit, fifty-five rabbits, by unreasonably causing them to be worried by dogs. The summons was dismissed, and at the request of the prosecutor, an inspector of the Society for the Prevention of Cruelty to Animals, this case was stated by the stipendiary magistrate for the Potteries district. The facts appear in the case and may be shortly stated thus: On October 18, 1915, a meeting which had been advertised as a "rabbit coursing meeting," and to which the public were admitted on payment, was held on a part of the Old Port Vale Football Ground at Cobridge. The part in question was between two and a half and three acres in extent, and was enclosed by a fence and other means in such a manner that the chance of escape was so slight as in fact to be negligible. ... The magistrate found that the respondent did cause unnecessary suffering to the rabbits, or many of them, but in view of s. 1, sub-s. 3 (b), he held that the section did not apply to the respondent's acts, and he therefore dismissed the summons. There were thus three points: (1.) that the chasing and worrying under the circumstances was not coursing; (2.) that the rabbits were not liberated; (3.) that they were under control. These were the points argued before us, and I will take them in their order. As to the first it seems to me that whether it was coursing or not was a question of fact for the magistrate, unless he can hold as a matter of law that if the rabbits had no chance of escape it was not coursing. I cannot so hold. The statute does not provide that the coursing must be conducted in a sportsmanlike or in any particular manner. These rabbit coursing meetings had been held in enclosed grounds for many years before 1911, and if it had been intended to provide that such meetings could not be coursing unless there was a means of escape I think it would have been so provided in terms. It would have been expressly provided that, to be deemed coursing, the rabbits or other captive animals must have a chance of escape. It is obvious that whether the space is enclosed or not a number of the rabbits will be captured, and the rabbits captured will suffer the same pain whether other rabbits escape or not. In my opinion it cannot be held that the mere fact that the rabbits have no chance of escape prevents their chasing and worrying from being coursing. Whether the size of the enclosure was sufficient, or whether the way in which the rabbits were chased and worried was coursing, seems to me to be clearly a question of fact. If it took place in a room or other very small enclosure I can understand that it might be found as a fact not to be coursing at all, because it could not possibly afford a test of the coursing abilities of the dogs. The object is to test the coursing abilities of the two dogs which are slipped. The magistrate held that the section did not apply to the respondent's acts, and having regard to the contentions of the appellant and respondent he could not have so held unless he had found as a fact that it was coursing. It is therefore in my opinion quite unnecessary to send the case back to him, and I think we must take it that he so found, and, that being so, we cannot interfere with his finding. I think the appellant's first point failed.
The next point is whether the rabbits were liberated. This again seems to me a question of fact, unless we can hold that because they had no chance of escape they cannot have been liberated. Now the section says "liberated for the purpose of being coursed." They were dropped on the grass sixty or seventy yards from where the dogs were. This is exactly what is done whether the ground is enclosed or not. If the act of cruelty takes place before that moment it is not to be deemed to be coursing. If it takes place after and before recapture I think the section implies that it takes place in coursing. The word "liberated" is used in the earlier part of the section. If the rabbits were dropped down in a mutilated or exhausted condition, and the prosecution was founded on that, surely it could not be contended that they were never liberated at all because the enclosure prevented their escape. Much of what I have said already with regard to the first point applies here. In my opinion the mere fact that the rabbits have no chance of escape does not prevent their being liberated within the meaning of the section. It equally follows from what I have said that the magistrate must have found as a fact that the rabbits were liberated.
Now as to the third point: Were the rabbits under control when they were chased and worried by the dogs? How can it be said that they were under control? Who could control them? The dogs could to a limited extent drive them this way or that, but that cannot be controlling. This happens in all coursing. The respondent could not, or at all events did not, make the rabbit go this way or that, or make it stop, or control its movements at all. The same considerations apply to this point as to the first two. Can we hold that because the ground is enclosed the rabbits must be under control? The Act of 1911 was partly a consolidating and partly an amending Act, and it seems that the words "after it has been recaptured, or if it is under control" are new. The case of Rodgers v. Pickersgill (1910) 74 J. P. 324 was decided in 1910, and these words seem to have been added to meet that case. When the deer there got into the yard it would properly be held to be under control, though not perhaps recaptured; and so here if the rabbits had found refuge in a similar place the magistrate might find them (though it would be a question of fact) to be at that moment under control. So also they would be under control if when being coursed a string had been attached to a leg and held by a man, and I can imagine other cases where they might be said to be under control. But in my opinion they cannot be said to be under control merely because the ground is so enclosed that they cannot escape. I think that here also the magistrate must have found as a fact that the rabbits were not under control while being chased and worried by the dogs. I should much have liked to have decided this case in favour of the appellant. It is a very poor form of sport. But I have to construe the words of the section according to their ordinary and natural meaning, and I can find no words which would justify one in holding that the section in effect provided that the captive animals must have a real chance of escape. I think the appeal must be dismissed.
Mr Justice AVORY:
It is unnecessary to recapitulate the facts and contentions which are set out in the judgments of Ridley J. and Bray J. I agree that the chasing of rabbits by dogs in enclosed grounds must have been known to the Legislature in 1911, and therefore may be under some circumstances within the exception provided for in s. 1, sub-s. 3 (b), of the Protection of Animals Act, 1911; but I am not satisfied that the magistrate has exercised his judgment upon the question of fact whether under the circumstances of this case what took place could properly be described as "coursing." The mere fact of a rabbit being let loose in the view of dogs who chase it does not amount to coursing. I agree that the expression "liberated" in the sub-section means "set free from the receptacle in which the animal has been confined," and that these rabbits were therefore liberated; but I see no reason for holding that the expression "or if it is under control" is to be limited in its operation to the time when the course or hunt is over. I think the proper reading of the latter part of the sub-section is that an animal shall not be deemed to be coursed or hunted, although it has been liberated for the purpose, if it is under control, and an animal may, I think, be under control in a confined space although free to move in different directions for a certain distance. In my opinion it was open to the magistrate, having regard to the extent of the enclosed ground, to the fact that the rabbits had no chance of escape, and to the description of what in fact took place, to find that this was not "coursing" within the meaning of the statute, and in the sense in which it is understood as a sport, and that the case should be remitted to him to state whether he has found as a fact that this was coursing in that sense. The finding of the magistrate that the section did not apply to the respondent's acts appears to me consistent with the view that upon the facts and the contention of the respondent he was bound to hold that the exception applied.