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Cite as: [2009] ECHR 2068
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
16072/06
by Brian Leonard FRIEND
against the United Kingdom
AND
Application no. 27809/08
by the COUNTRYSIDE ALLIANCE AND OTHERS
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 24 November 2009 as a Chamber composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and Fatoş Aracı, Deputy
Section Registrar,
Having regard to the above applications lodged on 23 April 2006 and 28 May 2008,
Having deliberated, decides as follows:
THE FACTS
A. Introduction
1. These two applications challenge various bans on fox hunting and the hunting of other wild mammals with dogs in the United Kingdom.
The first application has been lodged by Captain Brian Leonard Friend, a British national who was born in 1939 and lives in Axminster, Devon. He is referred to below as the first applicant. His application relates to his challenge to the ban on hunting in Scotland and his challenge, in separate legal proceedings, to a similar ban in England and Wales.
The second application has been lodged by the Countryside Alliance and ten other applicants whose details are set out in the appendix. They are all represented by Clifford Chance LLP. The Countryside Alliance is a non-governmental organisation, which seeks to influence legislation and public policy that has an impact on the countryside, rural people and their activities. At the time of the domestic proceedings set out below, it had around 100,000 ordinary members and 250,000 associate members. The ten other applicants are British nationals who claim to have been affected by the ban in different ways. The Countryside Alliance and the ten other applicants in this application are referred to below as the second applicants. They sought to challenge the ban on hunting in England and Wales only.
B. Hunting in the United Kingdom
2. On the basis of the facts as stated in the domestic proceedings and by the applicants before this Court, the cultural and social background to hunting can be summarised as follows.
Hunting with hounds has a long history in rural Britain. While it encompassed the hunting of deer, hare and mink, before the bans took effect, the principal quarry were foxes. These were traditionally hunted as vermin in order to protect farm stock. Over time, hunting of various quarries evolved such that the activity was organised in a particular area around a “Hunt”. The modern Hunt usually involves a pack of hounds, horseback riders and others who follow the hounds on foot. Any given Hunt now has its own particular customs and practices, including codes, dress, etiquette and hierarchy. The hunting season traditionally runs from early autumn until spring; most Hunts go out twice a week in that period, though larger Hunts may do so more frequently. Within each Hunt there is a Master of Hounds and other positions. Hunts are regulated by the Masters of Hounds Associations. Various charitable, community and social events have grown up around Hunts across the country. Members of the hunting community share the responsibilities for the organisation of the Hunt, for example caring for the hounds of a Hunt; those involved also have a common duty to repair any damage to the land on which the Hunt takes place.
3. In her witness statement before the High Court (see paragraph 6 below), which was characterised by that court as “largely unchallenged factually”, the President of the Countryside Alliance, Baroness Mallalieu, also stated that hunting was supported by the vast majority of farmers and land owners who allowed it to take place on privately owned land. She also averred that, in England and Wales, there were 174 registered fox hunting packs, one fox hunting club, 65 beagle packs, 12 harrier packs, 8 basset packs, 3 deerhound packs, 23 minkhound packs and 6 fell packs (with 2 affiliated fell packs). There were 27 registered Welsh gun packs and 56 registered Welsh hunting packs, although those registered with the Federation of Welsh Packs were only a proportion of the total number of packs in Wales.
4. In the case of Adams v. the Scottish Ministers (see paragraph 32 below), the Inner House of the Court of Session relied on a report prepared by the Rural Affairs Committee of the Scottish Parliament, which found that ten mounted hunts operated in Scotland and that two hunts based in Northumberland, England, regularly visited the Scottish Borders region.
C. The circumstances of each case
1. Proceedings in England and Wales brought by the first and second applicants
a. The passage of the Hunting Act 2004
5. In December 1999, the Home Secretary asked a committee under the chairmanship of Lord Burns to inquire into the various aspects of hunting and its impact. It was also asked to inquire into the consequences of any ban and how it might be implemented. After conducting hearings across England and Wales, the Burns Committee reported in June 2000. It did not address whether hunting should be banned but said that it believed its report would help inform the debate that followed its publication.
In December 2000, the Government introduced the Hunting Bill 2000 in the House of Commons, which offered three choices: regulation, supervision or prohibition of hunting. The Bill was not enacted as the House of Commons voted for prohibition and the House of Lords voted for supervision, which meant the Bill could not pass before the 2001 General Election.
A second Bill was introduced by the Government in 2002 which banned deer hunting and hare coursing but permitted fox, hare and mink hunting subject to registration. This was amended by the House of Commons to reject registration in favour of a ban on hunting, subject to exceptions. The registration system was reinstated by the House of Lords. In the following session of Parliament, the House of Commons passed a Bill which banned hunting, again subject to exceptions. This Bill became law (the Hunting Act 2004 – the 2004 Act) without the approval of the House of Lords pursuant to the Parliament Acts 1911 and 1949. For the provisions of the 2004 Act, see paragraph 30 below.
b. The High Court's judgment of 29 July 2005
6. The first and second applicants challenged the legality of the 2004 Act by way of judicial review, arguing that it was incompatible with their rights under the Convention. A separate but related challenge was brought based on European Community law and the freedom to provide goods and services under Articles 28 and 49 of the EC Treaty.
7. Having reviewed the factual evidence before it, as well as the Burns Report, the High Court considered the impact the ban would have on the applicants. It stated:
“85. We are distinctly cautious in assessing, so far as we have to, the short, medium or long term effects of a ban on hunting which is regarded as permanent. The evidence of individual claimants of the actual or anticipated effect on them is unchallenged, other than by general contentions whose force we find unpersuasive. There is bound, we think, to be a decline in riding to hounds. We hesitate to say how sharp that decline might be. The Burns Report was similarly cautious. Fox hunts will not, we suppose, all disband overnight. Still less will related social activities collapse immediately. On the other hand, we cannot but suppose that there would be a substantial contraction of hunting related activities in the medium term. More importantly, for present purposes, we proceed on the scarcely contested basis that a significant number of individuals, of whom the individual claimants are representative, will suffer in a variety of tangible and economic ways and that some will lose all or part of their present livelihood. The extent to which they may be able to find alternatives is scarcely predictable. Some, no doubt, may not.
...
The Hunting Act will have a substantial general adverse effect on the lives of many in the rural community in England and Wales. It will have a direct effect on a significant number of individuals, of whom the individual claimants are representative. Some of these effects may not be immediate, but much of it is likely to happen in the short to medium term.”
8. The High Court found, however, that the ban did not interfere with the private lives of any of the claimants. Nor was there an interference with their right to respect for their homes with regard either to those applicants who had land over which hunts passed or those whose homes were tied to their employment or business insofar as their employment or business would be affected by the ban. There was similarly no interference with the applicants' rights under Article 11 § 1. It also found that Article 14 was not applicable since membership of the hunting community was not a personal characteristic amount to a status analogous with those contained in that Article. The High Court was, however, prepared to accept that there was an interference with their rights under Article 1 of Protocol No. 1, though that interference mainly, if not entirely, constituted control of use, not deprivation of property.
9. The precise nature of that interference was a matter of dispute between the parties. The applicants alleged that there were eleven interferences with property, grouped under three heads. First, in respect of land, there were interferences arising from: (i) the use of land to hunt by the owner; (ii) permitting others to hunt over one's own land; (iii) the value of land; (iv) expense associated with the removal of buildings and equipment which was of use only in the hunting industry; and (v) the reinstatement of land which had been modified specifically for hunting with dogs. Second, in respect of the livelihoods of certain of the applicants, there were interferences with: (vi) an individual's job and/or livelihood; (vii) the benefit of an existing contract of employment or contract for services related to hunting and (viii) goodwill in and/or the value of existing businesses which were reliant on the hunting industry for a large proportion of their income or the viability of their business. Third, in respect of other property, there were interferences as regards (ix) dogs; (x) horses and vehicles; and (xi) miscellaneous hunting equipment.
10. It was conceded by the Government that the 2004 Act interfered with the property covered in (i), (ii), (ix), (x) and (xi) above and that Article 1 of Protocol No. 1 would be engaged to the extent that the Act had the indirect consequence of diminishing the values of land or other property or of damaging the goodwill of a business. The High Court agreed. In addition, “livelihood” was to be regarded as falling between the marketable goodwill of a business, which was a possession, and a loss of future income, which was not. To the extent that the Inner House of the Court of Session in Adams (see below) had regarded “livelihood” as a possession, the High Court declined to follow its ruling on that point.
11. Having reached these conclusions on Articles 8 § 1, 11 § 1, the High Court nevertheless examined whether the 2004 Act was justified under Articles 8 § 2 and 11 § 2 of the Convention and whether it was proportionate under Article 1 of Protocol No. 1. That examination was joined to its examination of whether the Act was justified for the purposes of the restrictions it placed on the free movement of goods and services as guaranteed by European Community law. It found that, for Articles 8 § 2 and 11 § 2, the 2004 Act pursued the legitimate aims of the prevention of disorder, protection of health or morals and the protection of the rights and freedoms of others and, for Article 1 of Protocol No. 1 and Article 14 (if the latter were applicable), that it pursued “legitimate objectives of public policy”. The Act was also in accordance with and prescribed by law for the purposes of Articles 8 § 2 and 11 § 2; no claim could be made that it lacked legal certainty or adequate procedural safeguards.
12. The first and second applicants' claimed that the Act was disproportionate because the House of Commons had adopted a more restrictive measure than that proposed by the Government and, further, that the Act itself promoted cruelty to foxes because it only allowed them to be shot, which, in certain cases, wounded but did not kill outright. The High Court rejected this argument, and instead found there was sufficient material for the House of Commons to conclude that hunting with dogs was cruel and that it was open to it to decide that legislative schemes other than a ban were unworkable. In the High Court's view, the balance to be struck between the legitimate aim pursued and the interference with rights and freedoms it engendered was: “intrinsically a political judgment and a matter of domestic social policy, incapable of measurement in any scientifically calibrated scale, upon which the domestic legislature had a wide margin of discretion.”
13. The High Court also found that, contrary to the first applicant's submissions, no issues arose in respect of Articles 9, 10, 17 and 53 of the Convention. Claims originally made under Articles 6 and 7 made by the applicants were not pursued before the court.
14. The High Court gave the second applicants permission to appeal in respect of their claims under Articles 8 and 11 and Article 1 of Protocol No. 1 and refused the first applicant permission to appeal. The second applicants duly appealed to the Court of Appeal and the first applicant renewed his application for permission to appeal before that court.
c. The Court of Appeal's judgment of 23 June 2006
15. Further evidence and witness statements were provided to the Court of Appeal. The Government submitted that since the passage of the 2004 Act, hunts had continued in alternative forms such as drag or trail hunting, where mounted riders and hounded pursued an artificial scent rather than live quarry; the applicants adduced evidence that this was an inferior and unrealistic alternative.
16. In respect of Article 8, the Court of Appeal found that it was not engaged and added:
“We have reached the foregoing, clear, conclusions on the assumption that some at least of the consequences of the Hunting Act feared by the [applicants] will in fact eventuate... But at the same time it is valuable to remind ourselves of circumstances in the real world. The new evidence adduced by the [Government] shows that things appear to have gone on very much as before, even if trail-hunting is regarded as a very inferior form of sport to the real thing.”
17. The court reached a similar conclusion in respect of Article 11:
“We entirely agree with both of our predecessor courts [the High Court and the Court of Session – see below] that it cannot be said that the Hunting Act interferes with the right of the [applicants] to assemble. All that it does is to prohibit a particular activity once the [applicants] have assembled. Moreover, the Hunting Act has now been in force for over a year, and the hunts have been assembling in greater numbers than ever. If they choose at some time in the future to lose interest in trail hunting or in other activities that are not directly prohibited by the Hunting Act, that will be a matter for them.”
18. On Article 1 of Protocol No. 1, the Court of Appeal followed the approach of the High Court in accepting that that provision would only be engaged to the limited extent conceded by the Government. The Court of Appeal also upheld the reasoning of the High Court as to the legitimate aims pursued by the 2004 Act and its proportionality. That conclusion applied equally to Article 1 of Protocol No. 1 and Articles 8 and 11 if, contrary to its conclusions, those Articles were engaged.
19. The Court of Appeal found that the first applicant's renewed application for permission to appeal, brought in respect of his separate claims under Articles 9, 14, 17 and 53, should be refused as it had no reasonable prospect of success. It also refused the second applicants permission to appeal to the House of Lords. The second applicants then petitioned the House of Lords and, on 7 November 2006, an Appeal Committee of the House of Lords gave leave to appeal (see paragraph 24 below).
2. Proceedings in Scotland brought by the first applicant
20. The Protection of Wild Mammals (Scotland) Act was passed by the Scottish Parliament on 13 February 2002 and entered into force on 1 August 2002. The 2002 Act prohibited the hunting of all wild mammals (except rabbits and rodents) with dogs (see relevant domestic law and practice at paragraph 31 below)
21. Together with one other petitioner, the first applicant, as a member of the Berwickshire Hunt, sought judicial review of the Act, contending that it was not within the legislative competence of the Scottish Parliament, inter alia, because it was incompatible with Articles 8 – 11, 14, 17 and 53 of the Convention.
22. The petition was dismissed by the Outer House of the Court of Session on 20 June 2003. The Lord Ordinary found that Article 8 was not engaged: hunting was a complex social activity, carried on under public gaze, which clearly extended beyond the sphere of purely private life. He also dismissed the argument made by the first applicant and his co petitioner that Article 8 was engaged because hunting was so intrinsic to their way of life as to be their primary characteristic. Their case had to be distinguished from the gypsy lifestyle at issue in Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001 I and the Saami way of life at issue in G. and E. v. Norway, nos. 9278/81 and 9415/81, Commission decision of 3 October 1983, Decisions and Reports (DR) 35, p. 30. A person's profession or recreation might assume great importance in his life but that was quite different from the situation where an activity was so closely associated with the way of life of a particular group that it fell to be regarded as integral to the individual personality of every member of that group. Furthermore, the hunting community could not be regarded as a distinct ethnic group.
The Lord Ordinary rejected the applicant's submissions that Articles 9, 10 and 11 were engaged but indicated that, had he found any of Articles 8 – 11 to be engaged, he would nevertheless have held that the Scottish Parliament was entitled to come to the view that the ban was necessary in a democratic society and pursued the legitimate aim of the protection of morals.
For the Lord Ordinary Article 14 could not apply because hunters could not be regarded as having a personal characteristic or status for the purposes of that Article; fox hunting was a common activity engaged in by a heterogeneous group of individuals. To the extent that the first applicant continued to rely on it before him, the Lord Ordinary did not regard Article 17 as relevant to the case. The same consideration applied to Article 53: it did not confer any rights on which the petitioners could rely.
23. The applicant appealed to the Inner House of the Court of Session. By this time, the Second Division of the Inner House had already given its judgment in Adams v. the Scottish Ministers, where, in a separate judicial review challenge brought by the Scottish hunting community, it had found the 2002 Act to be compatible with Articles 8, 11 and 14 of the Convention and Article 1 of Protocol No. 1 (see paragraph 32 below). On 27 September 2005, an Extra Division of the Inner House refused the first applicant's appeal. It found no reason to depart from the conclusions of the Second Division in Adams or the Lord Ordinary in the present case that Articles 8 – 11 and 14 were not engaged. It also upheld the Lord Ordinary's ruling in respect of Article 17 and the Article 53 submission was not pursued before the Inner House. The first applicant appealed to the House of Lords (see below).
3. Proceedings before the House of Lords concerning all of the applicants
24. On 28 November 2007 the House of Lords gave judgment on the first applicant's appeal from the Inner House of the Court of Session and the second applicants' appeal from the Court of Appeal. It unanimously dismissed both appeals.
25. In the second applicants' appeal, Lord Bingham of Cornhill found that Article 8 was not engaged, judging the applicants' complaints to be “far removed from the values which Article 8 existed to protect”. Fox-hunting was a very public activity and therefore no analogy could be drawn between it and any of this Court's cases where the notion of personal autonomy was found to underlie the right to respect for private life. Nor could any analogy be drawn with G and E, cited above, or Buckley v. the United Kingdom, 25 September 1996, Reports of Judgments and Decisions 1996 IV, where the applicants belonged to distinctive groups, each with a traditional culture and lifestyle at issue that was so fundamental as to form part of its identity. The hunting community could not be portrayed this way. That certain of the applicants were prohibited from hunting on their land was not an interference with the right to respect for their home since, in ordinary usage, such land could never be described as home. For those applicants who complained that they stood to risk losing their homes from the hunting ban, this was not the necessary or intended consequence of the 2004 Act and none of them had been evicted or might ever be. Finally, the applicants relied on the case Sidabras and DZiautas v. Lithuania, nos. 55480/00 and 59330/00, ECHR 2004 VIII, as authority for the proposition that there would be an interference through loss of livelihood as a result of the ban but, for Lord Bingham, this was a very extreme case which could be distinguished on its facts.
Lord Bingham was not content to treat Article 11 as inapplicable: the right to assemble was of little value if the applicants, having assembled to act in a certain way, were prohibited from carrying out that activity. He then took the same approach as the High Court and Court of Appeal in considering whether the 2004 Act was justified under Articles 8 § 2 and 11 § 2 and, to the extent that Article 1 of Protocol No. 1 applied, whether the Act was a proportionate interference with the right to property. He concluded that it was: respect had to be paid to the recent and closely-considered judgment of Parliament. Finally, for Lord Bingham, no claim could be made under Article 14 as no personal characteristic of any of the applicants could be described as an “other status” under that Article.
26. Lord Hope of Craighead and Baroness Hale of Richmond agreed with Lord Bingham, save that neither found Article 11 to be engaged. For them, it was insufficient simply to find that Article 11 did not apply on the grounds that the effect of the ban was not to prohibit the assembly of a hunt but to prohibit a particular activity which the hunt might engage upon once it had assembled. Instead, Lord Hope found Article 11 to be inapplicable because that Article did not guarantee a right to assemble for purely social purposes. The applicants' position was no different from that of any other persons who wished to assemble in a public place for sporting or recreational purposes. It fell well short of the kind of assembly whose protection was fundamental to the proper functioning of a modern democracy. Baroness Hale agreed: the kind of assembly protected by Article 11 had to be read alongside Article 10 and the democratic values those Articles sought to protect.
27. Lord Brown of Eaton-under-Heywood agreed that Article 8 was not engaged but stated his strong wish that it were otherwise and that the scope of Article 8 should be developed by this Court. He also agreed that Article 11 was not engaged but that Article 1 of Protocol No. 1 was. As to proportionality, Lord Brown was prepared to accept that moral objection to hunting as expressed in the 2004 Act was sufficient justification for the “comparatively slight” interference with the applicant's property rights. However, under Article 8 § 2 he regarded the test to be much stricter and was unable to regard such an ethical objection to hunting as a sufficient basis for holding the ban to be necessary.
28. Lord Rodger of Earlsferry agreed in particular with the reasons given by Lord Brown and also found that Article 8 was not engaged. He accepted that certain activities could be regarded as integral to a person's identity and so form part of their private life for the purposes of Article 8. He also considered the activities which Princess Caroline had been photographed doing in public in Von Hannover v. Germany, no. 59320/00, ECHR 2004 V (horse riding, riding her bicycle, playing tennis and going to the market) and suggested that if photographing her doing these things interfered with her rights under Article 8, then a law banning her from these activities would have constituted a greater interference. However, a distinction had to be drawn between, on the one hand, doing such activities simply for one's own enjoyment and the development of one's personality and, on the other, carrying out the same activity for a public purpose, where one could not be said to be acting for personal fulfilment alone. In the latter, a person might still be developing his or her personality through the activity but would have left the sphere in which they would be entitled to the protection of Article 8. He agreed with the Inner House of the Court of Session in Adams that a hunt took on the character of spectator sport and a public spectacle and thus that the applicants were not entitled to the protection of Article 8.
29. The first applicant's appeal was dismissed for the same reasons. Lord Hope delivered the lead speech with which the other four law lords concurred, subject to their opinions in the appeal brought by the second applicants. He upheld the finding of the Lord Ordinary and the Extra Division that Articles 17 and 53 had no relevance to the first applicant's basic argument that the Protection of Wild Mammals (Scotland) Act was outside the legislative competence of the Scottish Parliament because it was incompatible with the Convention. He also upheld the lower courts' findings that Articles 8–11 and 14 were not engaged. To the extent that it was necessary to consider the justification for the 2002 Act, Lord Hope considered that there was adequate factual information to entitle the Scottish Parliament to conclude that foxhunting inflicted pain on the fox and that it constituted cruelty. The question of necessity was “pre-eminently one for the Parliament”.
D. Relevant domestic law and practice
1. The Hunting Act 2004
30. Section 1 of the 2004 Act provides that a person commits an offence if he hunts a wild mammal with a dog unless his hunting is exempt. Classes of hunting which are exempt are specified in Schedule 1 of the Act. Under section 4, it is a defence for a person charged with an offence under section 1 to show that he reasonably believed that the hunting was exempt.
Exempt hunting includes: (i) stalking a wild mammal, or flushing it out of cover, if the conditions in paragraph 1 of the Schedule are satisfied. The conditions include: (a) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause; (b) that it does not involve the use of more than two dogs; nor (c) the use of one dog below ground otherwise than in accordance with paragraph 2 of the Schedule. The conditions in paragraph 2 include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground. Further exemptions, subject to conditions, are made for the hunting of rats and rabbits, the retrieval of hares which have been shot, for falconry, for the recapture or rescue of a wild mammal, and for research and observation of a wild mammal.
Section 3 creates offences by a person who knowingly assists hunting which is banned under section 1. Section 11(2) provides that hunting a wild mammal with a dog includes any case where a person engages or participates in the pursuit of a wild mammal and one or more dogs are employed in that pursuit, whoever employs, controls or directs the dogs.
Section 5 bans hare coursing, which is defined as “a competition in which dogs are, by the use of live hares, assessed as to skill in hunting hares”.
A person guilty of an offence under the 2004 Act is liable on summary conviction to a fine of up to GBP 5,000. Conviction may lead to the forfeiture of any dog, vehicle or other article used for the purpose of prohibited hunting.
2. The Protection of Wild Mammals (Scotland) Act 2002
31. Section 1 of the 2002 Act makes it a criminal offence deliberately to hunt a wild mammal, for the owner or occupier of his land to permit it to be used for that purpose and for the owner of a dog to permit it to be used for the same. By section 10 rabbits and rodents are excluded from the definition of a wild mammal. Exemptions are made in sections 2 – 5 (subject again to conditions) for stalking and flushing from cover, falconry and shooting, retrieving and locating wild mammals. Section 6 gives the Scottish Ministers the power to specify further “excepted activities”, which will not constitute an offence under section 1. By section 8(1) a person guilty of an offence under the Act is liable on summary conviction to imprisonment for up to 6 months or a fine of up GBP 5,000 or both.
3. Adams v. the Scottish Ministers 2004 SC 665
32. The petitioners in this case sought to challenge the 2002 Act by way of judicial review, similarly relying on Articles 8, 11 and 14 of the Convention and Article 1 of Protocol No. 1. They were unsuccessful at first instance before the Lord Ordinary in the Outer House of the Court of Session. They appealed to the Second Division of the Inner House of the Court of Session, which dismissed the appeal on 28 May 2004. The Inner House took note of an expert report submitted by the petitioners, which found that the end to traditional foxhunting would bring the “collapse of an entire social and cultural world” and result in “profound and deeply felt social and cultural impoverishment” in the Scottish Borders. However, Articles 8, 11 and 14 were not engaged. For Article 1 of Protocol No. 1, the Inner House found that the Act did not amount to de facto expropriation of possessions related to hunting (in particular one of the petitioner's hounds) but rather control of the use of property and thus there was no requirement for the Act to provide a scheme of compensation. It was accepted that Article 1 of Protocol No. 1 was engaged to the extent that the Act restricted the use to which the petitioners put their land and hounds. The Inner House also sustained the finding of the Lord Ordinary that one of the petitioner's economic interest in making his livelihood as a self-employed manager of foxhounds was a possession within the meaning of that Article. In doing so, it relied on this Court's rulings in Tre Traktörer AB v. Sweden, 7 July 1989, Series A no. 159; Van Marle and Others v. the Netherlands, 26 June 1986, Series A no. 101 and the Commission's decision in Karni v. Sweden, no. 11540/85, 8 March 1988, Decisions and Reports (DR) 55, p. 157. However, for that livelihood and the other possessions of the petitioners, the Scottish Parliament had struck an appropriate balance: it had conducted extensive inquiries before legislating and had acted within the scope of its discretion in judging that foxhunting should be prohibited.
COMPLAINTS
33. The first applicant complained that the hunting ban in England and Wales was a violation of his rights under Articles 8, 9 and 11 of the Convention and Article 14 when taken in conjunction with those Articles. In respect of the ban in Scotland, he also relied on Article 17 when taken in conjunction with Article 3 of Protocol No. 1. Finally, he argued that the Convention should be construed in the light of relevant international agreements to which the United Kingdom was party, pursuant to Article 53 of the Convention. He referred to the Rio de Janeiro Declaration on Environment and Development, the Rio de Janeiro Convention on Biological Diversity, the United Nations International Covenants respectively on Economic, Social and Cultural Rights and Civil and Political Rights, the Universal Declaration of Human Rights and the Council of Europe Framework Convention for the Protection of National Minorities. He made the same complaints in respect of the hunting ban in Scotland, save that he also relied on Article 10 of the Convention.
34. The second applicants complained under Article 8 of the Convention and Article 1 of Protocol No. 1 that the ban was a violation of their rights under those Articles. They made no separate complaints under Articles 11 and 14 of the Convention.
THE LAW
A. Article 8 of the Convention
35. Article 8 of the Convention provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The applicants' submissions
36. In asserting that the hunting bans in the United Kingdom constituted an interference with their private life, the applicants relied on the Court's observations in Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 III that private life is a broad term not susceptible to exhaustive definition and that the notion of personal autonomy was an important principle underlying the interpretation of Article 8. Private life was not limited to a reasonable expectation of privacy nor was it prevented from operating in a public context (Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003 I). They also adopted the analysis of Lord Rodger in the House of Lords, that certain activities could be regarded as integral to a person's identity and so form part of their private life for the purposes of Article 8, and they relied on Lord Brown's wish that this Court develop the scope of Article 8 to include pursuits and activities which formed a core part of a person's life.
Not all activities a person chose to undertake fell within Article 8, but that Article was necessarily engaged in the case of persons for whom hunting was a core or central part of their lives because of the effect the hunting ban had on their personal autonomy. It was incorrect to ask whether an activity was exclusively for personal fulfilment, as Lord Rodger had done, because personal autonomy and not personal fulfilment lay at the heart of Article 8. The public nature of hunting could not be decisive as the public nature of the restrictions on employment at issue in Sidabras, cited above, had not prevented the finding of an interference in that case.
37. The community and cultural lifestyle of the applicants was also a consideration. G & E and Chapman, cited above, could not be interpreted as only applying to ethnic minorities: respect for a particular lifestyle, not ethnicity, was crucial. In this connection, the first applicant went further in his submissions and argued that the hunting community was in fact an ethnic or national minority, which had evolved through the long history of hunting, with its own traditions, rituals and culture or was at least a cultural way of life. The Contracting States had a positive obligation to facilitate such a way of life and to preserve cultural diversity.
38. The second applicants alleged there were further interferences with their rights under Article 8 arising from the effect of the ban on their land, estates and homes. Hunting took place over the land or estates of certain of the applicants and thus the ban constituted an intrusion by the United Kingdom Government into their homes. Two of the applicants, Mr Summersgill, who rented accommodation as a result of his employment as a huntsman and Ms Drage, who rented her home and stables for her livery business (see appendix), could further rely on Article 8 since they would probably lose their homes and livelihoods as a result of the hunting ban. In respect of loss of livelihood they relied on Sidabras, § 48, and the Court's finding therein that, for the applicants in that case, the serious difficulties they had in earning their living had “obvious repercussions on the enjoyment of their private life”.
39. Finally, the applicants argued that the hunting ban did not fall within any of the legitimate aims contained in Article 8 § 2 and was disproportionate for the reason given by Lord Brown.
2. The Court's assessment
40. In assessing whether the hunting bans introduced by the Hunting Act 2004 and the Protection of Wild Mammals (Scotland) Act 2002, amounted to a violation of the applicants' rights under Article 8, the Court's first task is to determine whether there has been any interference with those rights. The Court accepts, as the domestic courts did, that the hunting of wild mammals with hounds had a long history in the United Kingdom; that hunting had developed its own traditions, rituals and culture; and, consequently, that it had become part of the fabric and heritage of those rural communities where it was practised. Similarly, for the individual applicants in the present cases, the Court accepts, as the High Court did, that hunting formed a core part of their lives. It accepts therefore that, for various reasons, hunting came to assume a particular importance in the lives of these applicants. However, for the follow reasons, the Court is unable to accept that the hunting bans amount to an interference with the applicant's rights under Article 8.
41. In the Convention system, rights must be broadly construed and exceptions or limitations interpreted narrowly. This is no more so than for Article 8 where the Court has consistently held that the notion of private life is a broad concept (see, most recently, E.B. v. France [GC], no. 43546/02, § 43, ECHR 2008 ..., and references therein). It encompasses, for example, the right to establish and develop relationships with other human beings and the right to identity and personal development (Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251 B, p. 33, § 29; Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001-I). A broad construction of Article 8 does not mean, however, that it protects every activity a person might seek to engage in with other human beings in order to establish and develop such relationships. It will not, for example, protect interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the action or inaction of a State and a person's private life (see, mutatis mutandis, Botta v. Italy, 24 February 1998, § 35, Reports of Judgments and Decisions 1998 I). By the same token, it cannot be said that, because an activity allows an individual to establish and develop relationships, it falls within the scope of Article 8 such that any regulation of that activity will automatically amount to an interference with that individual's private life.
42. It is also true that in Peck, § 57, cited above, the Court recognised that there was “a zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life'”. However, in Peck and other cases where the Court has found an interference with the private life of an applicant whilst he or she was in a public space, it has always considered whether the applicant had a reasonable expectation of privacy at the time (see, as a recent authority with further references, Peev v. Bulgaria, no. 64209/01, §§ 37–39, ECHR 2007 ... (extracts)). Whether or not the person was participating in a public event has also been a relevant consideration (cf. Peck, § 62; Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 21, §§ 49-52). There is, however, nothing in the Court's established case-law which suggests that the scope of private life extends to activities which are of an essentially public nature. In this respect, the Court also considers that Lord Rodger, in referring to Von Hannover, cited above, was correct to draw a distinction between carrying out an activity for personal fulfilment and carrying out the same activity for a public purpose, where one cannot be said to be acting for personal fulfilment alone.
43. The Court shares the view of the House of Lords that hunting is, by its very nature, a public activity. It is carried out in the open air, across wide areas of land. It attracts a range of participants, from mounted riders to followers of the hounds on foot, and very often spectators. Despite the obvious sense of enjoyment and personal fulfilment the applicants derived from hunting and the interpersonal relations they have developed through it, the Court finds hunting to be too far removed from the personal autonomy of the applicants, and the interpersonal relations they rely on to be too broad and indeterminate in scope, for the hunting bans to amount to an interference with their rights under Article 8.
44. The applicants also rely on the fact that, for them, hunting is part of their lifestyle. Contrary to the first applicant's submissions, the Court is unable to regard the hunting community as an ethnic minority in the commonly understood sense of the term or as a national minority of the kind contemplated, for example, by the Council of Europe Framework Convention for the Protection of National Minorities. Mere participation in a common social activity, without more, cannot create membership of a national or ethnic minority. Equally, many people choose to socialise with people who share their interest in a particular activity or pastime. The inter-personal ties which are then created cannot be taken to be sufficiently strong as to create a discrete minority group. Finally, and contrary to the second applicants' submissions, the Court does not consider that hunting amounts to a particular lifestyle which is so inextricably linked to the identity of those who practise it that to impose a ban on hunting would be to jeopardise the very essence of their identity. In the Court's view, the domestic courts were correct to distinguish the G & E, Chapman and Buckley cases, cited above.
45. The second group of applicants have also invoked the right to respect for one's home, also contained in Article 8. In respect of those applicants who allege that the inability to hunt on their land amounts to an interference with their homes, the Court agrees with Lord Bingham's finding that the concept of home does not include land over which the owner permits or causes a sport to be conducted; it would strain the meaning of home to extend it in this way (see, mutatis mutandis, Loizidou v. Turkey, 18 December 1996, § 66, Reports of Judgments and Decisions 1996 VI). For Mr Summersgill and Ms Drage, who alleged they would lose their homes as a result of the ban, the Court has not been provided with any evidence that this has in fact happened, still less any grounds for finding that this was a direct consequence of the hunting ban. Finally, consistently with the views of the domestic courts, the Court does not find that the applicants can derive any support from the Sidabras judgment, cited above. In that case, the Court was struck by the far-reaching nature of the ban on former KGB officers taking up private sector employment and the serious difficulties it created for the applicants in terms of earning their living (see paragraphs 47 and 48 of the judgment). The fact that the ban “marked [them] in the eyes of society” was an additional factor for the Court's finding that the facts of the case fell within the ambit of Article 8 of the Convention (see paragraphs 49 and 50). None of those considerations obtain in the present case. The hunting ban in England and Wales, which Mr Summersgill and Ms Drage challenge, does not amount to a direct restriction on taking up any kind of employment and the ban does not, of itself, create the serious difficulties in earning one's living that were encountered by the applicants in Sidabras, still less does it “mark them in the eyes of society”.
46. It follows that the Article 8 complaints made by the applicants must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Article 11 of the Convention
47. Article 11 of the Convention provides as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
1. The first applicant's submissions
48. The first applicant accepted that the 2002 and 2004 Acts did not interfere with his right to associate or assemble with the Hunt but contended that, by banning the Hunt from hunting with hounds, they emasculated this right as they prohibited the Hunt's raison d'être and therefore the very reason for assembly. He relied on Anderson v. the United Kingdom, no. 33689/96, Commission decision of 27 October 1997, as authority for the proposition that the right to associate carried with it the right to do so for a particular purpose. He also argued that the ban was disproportionate for the purposes of Article 11 § 2.
2. The Court's assessment
49. The Court notes that in the Anderson case, cited above, concerning the prohibition on the applicants entering a shopping centre, the Commission observed that “freedom of association, too, has been described as the right for individuals to associate 'in order to attain various ends'”. However, the Commission prefaced that remark by observing that there was no indication that freedom of assembly was intended to guarantee a right to assemble for purely social purposes anywhere one wished.
50. Like Lord Hope and Baroness Hale, the Court considers that the primary or original purpose Article 11 was and is to protect the right of peaceful demonstration and participation in the democratic process. In recognition of that primary purpose, the Court has been led to observe that “the right to freedom of assembly is a fundamental right in a democratic society and like the right to freedom of expression, is one of the foundations of such a society” (Djavit An v. Turkey, no 20652/92, § 56, ECHR 2003-III) and accordingly, to regard those who organise demonstrations as “actors in the democratic process” (Oya Ataman v. Turkey, no.74552/01, § 38, ECHR 2006-....). Nevertheless, it would, in the Court's view, be an unacceptably narrow interpretation of that Article to confine it only to that kind of assembly, just as it would be too narrow an interpretation of Article 10 to restrict it to expressions of opinion of a political character (see, for example, Gypsy Council v. the United Kingdom (dec.), no. 663366/01, 14 May 2002). While the Court is therefore prepared to assume that Article 11 may extend to the protection of an assembly of an essentially social character, it notes that the hunting bans in Scotland, England and Wales as they apply to the first applicant do not prevent or restrict his right to assemble with other huntsmen and thus do not interfere with his right of assembly per se. The hunting bans only prevent a hunt from gathering for the particular purpose of killing a wild mammal with hounds; as such, the hunting bans restrict not the right of assembly but a particular activity for which huntsmen assemble. The hunt remains free to engage in any one of a number of alternatives to hunting such as drag or trail hunting (see the findings of the Court of Appeal at paragraph 17 above). It is also of some relevance that the wider public or social dimensions to a traditional hunt have also been preserved in drag or trail hunting. In the Court's view the mere fact that, prior to the bans, hunting culminated in the killing of a wild mammal by hounds is not sufficient for it to find that the bans struck at the very essence of the right of assembly.
Even assuming that the hunting ban could be regarded as involving such interference, the Court shares the view of Lord Bingham that the interference may in any event be regarded as justified under paragraph 2 of Article 11. It is not in dispute that it was “prescribed by law”, the very complaint of the applicants being directed against the provisions of the Acts of 2002 and 2004. The Court further finds that the measures served the legitimate aim of the “the protection of. ....morals”, in the sense that they were designed to eliminate the hunting and killing of animals for sport in a manner which the legislature judged to cause suffering and to be morally and ethically objectionable. As to the question of the necessity and proportionality of the measures, the Court recalls that, by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of those moral and ethical requirements as well as on the “necessity” of a “restriction” intended to meet them. Furthermore, a wider margin of appreciation must be accorded to State authorities in regulating a particular assembly the further that assembly moves from one of a political character to one of a purely social character. The Court notes that the legislative measures in question in the present case were very recently introduced after extensive debate by the democratically–elected representatives of the State on the social and ethical issues raised by the method of hunting in question. Having regard to the nature and limited scope of any interference with the rights guaranteed by Article 11, the Court finds that the measures may be regarded as falling within the margin of appreciation enjoyed by the State and as being proportionate to the legitimate aim served thereby.
51. For those reasons, the Court considers that the first applicant's Article 11 complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Article 1 of Protocol No. 1
52. Article 1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The second applicants' submissions
53. The second applicants alleged that the ban in England and Wales amounted to a disproportionate interference with their right to property as guaranteed by Article 1 of Protocol No. 1. They noted that the High Court and the Court of Appeal had accepted that their rights as regards land and other property had been interfered with in a number of different respects. They argued, however, that those courts had erred in finding that a person's livelihood was not capable of constituting a possession for the purposes of that Article. They relied on the reasoning of the Inner House of the Court of Session in Adams and also argued that for those applicants whose livelihoods depended on their businesses, Ms Drage, Mr Dayment and Ms Gooding (see appendix), Article 1 of Protocol No. 1 was also engaged because they had lost the marketable goodwill in their businesses.
54. The applicants accepted that the ban did not amount to expropriation but a control of the use of property. However, the absence of compensation for those who would lose their property as a result of it was relevant to determining whether the ban was proportionate. They also relied on one of the conclusions of the Burns Report (see paragraph 5 above) where it had been stated that it could not be proved or disproved that hunting caused unnecessary suffering to the quarry. Since, the prevention of such suffering had been taken to be the first of two aims of the 2004 Act, this conclusion in the Burns Report substantially undermined the justification for the ban and meant there was no rational relationship between the legislative aims of the 2004 Act and the ban. While the domestic courts had identified a second aim of the Act, that hunting with hounds was unethical, the two aims were inextricably linked such that if the aim of preventing unnecessary suffering was undermined the other aim on its own would not suffice. Even if it did, it had not been suggested that hunting degraded or corrupted those who took part in it and the ban could not therefore be justified on the grounds of protecting morals.
2. The Court's assessment
55. While noting the different approaches taken by the Inner House in Adams and the High Court and Court of Appeal in the present cases, the Court considers in unnecessary to establish the extent to which Article 1 of Protocol No. 1 is engaged in the present case since, even assuming that the ban in England and Wales interfered with the property rights of the second applicants in each of the ways they alleged, it considers that the hunting ban served a legitimate aim and was proportionate for the purpose of that Article.
56. The Court recalls that in Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 91, ECHR 2005-VI, it stated that “the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one [and the Court] will respect the legislature's judgment as to what is 'in the public interest' unless that judgment is manifestly without reasonable foundation” (see also J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 71, ECHR 2007 ...). It also observes that the 2004 Act was preceded by extensive public debate, including the hearings conducted by the Burns Committee. It was enacted by the House of Commons after equally extensive debate in Parliament where various proposals were considered before an outright ban was accepted. In those circumstances, the Court is unable to accept that the House of Commons was not entitled to legislate as it did or that the refusal of the Burns Report to draw any conclusions as to the suffering of animals during hunting substantially undermined the reasons for the 2004 Act. The judgment that it was in the public interest to ban hunting was, as Lord Hope observed in context of the proportionality of the hunting ban in Scotland, pre-eminently one for the House of Commons to make.
57. For the lack of compensation in the 2004 Act, the Court accepts that a ban on an activity which is introduced by legislation will inevitably have an adverse financial impact on those whose businesses or jobs are dependent on the prohibited activity (see, mutatis mutandis, C.E.M. Firearms Limited and others v. the United Kingdom (dec.), nos. 37674/97 and 37677/97, 26 September 2000). Nevertheless, the domestic authorities must enjoy a wide margin of appreciation in determining the types of loss resulting from the measure for which compensation will be made. As stated in C.E.M. Firearms Limited “the legislature's judgment in this connection will in principle be respected unless it is manifestly arbitrary or unreasonable”. This applies, a fortiori, to cases where the interference concerns control of the use of property under the second paragraph of Article 1 rather than deprivation of possessions under the first paragraph of the Article. There is normally an inherent right to compensation in respect of the latter but not the former (see Banér v. Sweden, no. 11763/85, Commission decision of 9 March 1989; J.A. Pye (Oxford) Ltd, cited above, § 79). The Court does not find the absence of compensation in the 2004 Act to be arbitrary or unreasonable. Nor does it find that, in reaching the judgment it did, the United Kingdom upset the fair balance between the demands of the general interest and the requirements of the protection of the applicants' property rights by imposing on the applicants an individual and excessive burden. Indeed, the Court of Appeal's finding that hunts have continued to gather since the passage of the Act, albeit without live quarry, appears to confirm the decision of the House of Commons not to offer compensation to those affected by the ban.
58. Finally, the domestic courts have given the greatest possible scrutiny to the applicants' complaints under the Convention and especially those complaints brought under Article 1 of Protocol No. 1. The Court also notes that the High Court, the Court of Appeal and the House of Lords (as well as, for the 2002 Act in Scotland, the Inner and Outer Houses of the Court of Session in Adams) were each unanimous in finding that the ban was proportionate for the purpose of Article 1 of Protocol No. 1. Serious reasons would be required for this Court to depart from the clear findings of those courts. From the applicant's submissions, it can discern no such reasons; accordingly, and for the above reasons, this part of the complaint must also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
D. Other alleged violations of the Convention
59. The Court has examined the remainder of the first applicant's complaints under Articles 9, 14, 17 and 53 of the Convention and Article 3 of Protocol No. 1 in respect of the bans on hunting in Scotland and in England and Wales. However, having regard to all the material in its possession and in so far as the matters fall within its competence, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the remainder of his application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
APPENDIX
List of individual applicants in application no. 27809/08
The applicants are United Kingdom nationals. The following summaries are taken from appendix 1 to the Court of Appeal's judgment and the applicants' submissions before this Court.
Donald Summersgill is 43 years of age and has been a hunt servant or professional huntsman since 1990. In the domestic proceedings he stated he had never worked outside the hunting industry and was not qualified for anything else. He had been hunting all his life. Virtually all the members of his family hunt and were dependent on hunting for their livelihoods. In his application he further stated that he lived in accommodation which had been leased or licensed to him in his capacity as a huntsman, which he stated he would lose as a result of the 2004 Act.
Lesley Joan Drage was said to run a small livery yard business, which employed four people and was entirely reliant upon local foxhunts for its survival. She looked after 18 horses, all of which were used exclusively for hunting. She rented her house and stables, which she used for her livery business. In her application to this Court she too stated that she would lose this as a result of the 2004 Act.
Roger George Richard Bigland had been a hunt servant and professional terrier man for over 40 years. He stated in the domestic proceedings that if he lost his job he would probably be unable to find another or would only be able to secure manual or unskilled labour.
Colin Richard Dayment stated in his application that he was a farmer but in the domestic proceedings was described as a self-employed farrier whose business was largely dependent on hunting and who stood to lose the full value of his company if the ban were enforced.
Kim Yvette Gooding was, at the time of lodging the application, unemployed. At the time of the domestic proceedings she was, with her husband, a full time, self-employed trainer of hare coursing greyhounds. Their property had been adapted solely for the requirements of the business. She alleged that if the ban were implemented, she and her husband would lose their livelihood and the value of the business. Their property would be significantly devalued, and it was more likely than not that they would lose their home through a forced sale.
Joseph Cowen stated that he was a retired chartered surveyor and farmer. In the domestic proceedings he was described as a landowner and a trustee and the Senior Master of the Fernie Foxhounds, a foxhunt in Leicestershire. The Fernie Hunt's properties, equipment, hounds, horses and contracts of employment with its staff were all vested in Mr Cowen. The Fernie Hunt hunted on his family's land.
William Rhys Kenneth Jones is a farmer and, in the domestic proceedings, stated that he was Master of the Irfon and Towy Hunt in mid Wales, a hunt founded in 1909 by his grandfather. The hunt went over his land 3 or 4 times a season but, several times a year, hunting took place exclusively on his estate. He had hunted for most of his life and, most recently, with his wife and children. It was a central part of their life and the life of their rural community.
Richard Frederick May is a solicitor and was stated in the domestic proceedings to be the Master and owner of a beagle pack. His family bought its own land (which he now owns) for the purpose of hunting and shooting and he hunted exclusively on it. He maintained that the ban would force him to destroy the majority of the pack and dismantle facilities on his land for housing the pack at substantial cost.
Giles Rufus Joseph Bradshaw is a company director and was described in the domestic proceedings as owning a small farm in Devon, which he allowed several hunting packs to cross. He also used his own dogs to chase deer from woodland on his land.
Jason Edward Vickery is a tenant dairy farmer who stated in the domestic proceedings that he hunted with the South and West Wilts Foxhounds and was a member of its committee. He further stated that his social and family life revolved around hunting and as a farmer he relied on services provided by the hunt.