Should Jolyon Maugham be prosecuted for bludgeoning a fox to death?

Jolyon Maugham, the QC who has made a name for himself with his involvement in “lawfare” actions against the Government, woke up this morning, put on his wife’s satin kimono, went into his garden and bludgeoned a fox to death with a baseball bat.

He then announced what he had done on twitter.There is no mystery about why he killed the fox. It had come to eat his chickens, which he keeps in his central London garden. It entangled itself in the chicken-netting. Rather than try to disentangle it or call the RSPCA, he killed it with the baseball bat that he keeps at home to deter intruders.

I am quite sure he did not relish the task of killing the fox, indeed he tweeted that he “did not especially enjoy killing it.” He seems to have acted in the heat of the moment and from the most compassionate of motives. A fox entangled and struggling in wire netting is likely to be in great pain and distress. Even mating foxes make a terrifying noise, so (although he does not say) I can well imagine a fox trapped in wire, perhaps cutting ever deeper into its flesh, would have been screaming with pain and terror. Such screaming might well cloud a man’s judgement, and even with the clearest of judgement Mr Maugham would have wanted to end the poor animal’s suffering as quickly as possible.

The problem is that killing a fox is sometimes, though not always, a criminal offence.

Let’s leave the actual killing to one side for a moment. Had he sought legal advice the first thing he would have been told is not to tweet about it.  Without his admission there would be very little evidence, unless a nosey neighbour had been peering into his garden at the crucial moment. He could have buried the body in a shallow grave and no-one would have been any the wiser.

Instead, the internet went into meltdown and Mr Maugham has now decided to report himself to the RSPCA. He has his eccentricities but I doubt he would have felt the need to hand himself in like that if he had not announced the killing on twitter, and the killing had remained a secret between himself and his wife. His tweeting, as has happened to other lawyers, may prove to have been a serious mistake. 

I am no expert in reputation management but I cannot at the moment see that slightly enhancing his reputation amongst the huntin’, shootin’, fishin’ and hen-ownin’ community was worth the risk of an RSPCA prosecution. Nor, to my mind, was it worth the obloquy heaped on him even by those who might previously have strongly approved of his legal activities. One angry tweeter described him as a “psychopath,” another accused him of “torturing” the fox and another called him an “animal abusing cunt! I hope you get cancer.” One tweeter, Rebecca Bland, doubted whether Mr Maugham was telling the truth, but even that didn’t really help:

If that’s actually true then you are even more awful than I thought you were. Which is saying something. If it’s not true then you are weirder than I thought you were. Again, I wouldn’t have thought that possible.”

If the RSPCA decide to investigate he will be in for a very unpleasant time indeed. They obviously would not rely solely on his tweeted admission, helpful though that would be. He could be called in for interview. The fox’s cadaver could be recovered and sent to a pathologist. The baseball bat would be bagged up and carefully examined for fingerprints. His wife could find her kimono seized for forensic analysis.  They would be looking for DNA from the fox and a forensic interpretation of  blood spatters on the kimono.  Mr Maugham may or may not be a rich man, but he is not as rich as the RSPCA, and the RSPCA tends to throw money at prosecutions, no matter how trivial. Win or lose he will be out of pocket, even with his genius for crowd-funding litigation.

It remains possible that the whole story is some kind of strange wind-up intended to make a statement about Boxing Day fox hunting meets, except that this is not the first time Mr Maugham has tweeted about trying to use his baseball bat on the fox while wearing his long-suffering wife’s kimono. The use of the kimono, if not the baseball bat, suggests a degree of premeditation; or perhaps he sleeps naked, for which he is to be commended, and does not possess a dressing-gown of his own.

Assuming, as I am sure it is, that  his account is accurate, what is his legal position?

I tweeted rather facetiously when I first read Mr Maugham’s account:

The law is crystal clear. It is legal to kill foxes with an Eagle Owl, a Sealyham Terrier or a lethal injection, but not with a fox-hound or a baseball bat.”

In fact the application of the law is far from clear, even without bringing Eagle Owls – used by some hunts in a dubious attempt to avoid the ban on hunting with dogs – into the equation.

The obvious offence to consider first is that created by s.1 of the  Wild Mammals (Protection) Act 1996, a summary offence with a maximum penalty of 6 months imprisonment.:

1. Offences.

If, save as permitted by this Act, any person mutilates, kicks, beats, nails or otherwise impales, stabs, burns, stones, crushes, drowns, drags or asphyxiates any wild mammal with intent to inflict unnecessary suffering he shall be guilty of an offence.

A fox is normally a “wild mammal” for the purpose of the act. “Beating” is specifically prohibited. There is no need to prove that the fox actually suffered as a result of being hit with the baseball bat, what matters is whether Mr Maugham had the intention to inflict “unnecessary suffering.”

Hitting a fox on the head would be likely to cause some suffering. One is entitled to imbue Mr Maugham with the notional common sense of the reasonable man, and to assume that he would be well aware of that. That comes quite close to proof that he intended to cause suffering.  The real question is whether that suffering was unnecessary. His argument would be that even if hitting the fox on the head caused some suffering, it was in fact “necessary” because the alternatives would have been worse.

He could have left the fox to hang indefinitely on the wire, which would have been extraordinarily cruel.  One tweeter suggested that he could have wrapped it in a towel before cutting it free from the netting, though I doubt that suggestion came from someone who has ever attempted such a manoeuver, or had a close encounter with a fox’s incisors. A more practical solution might have been to call the RSPCA or a local vet – vets are available on a 24 hour basis, even on Boxing Day. On the other hand, any further delay would have meant the fox suffering on the wire for longer. In the circumstances I don’t think he acted cruelly by killing the fox as quickly as he was able.

I suspect he might get a sympathetic hearing from many a rural bench; farmers and country people tend to be unsentimental about the need to kill foxes in order to protect livestock. The argument might be less well-received at Highbury Corner, or whichever central London Magistrates Court has jurisdiction.

S. 2 of the 1996 Act does provide a statutory defence, which might just get him off the hook:

2. Exceptions from offence under the Act.

A person shall not be guilty of an offence under this Act by reason of—

(a) the attempted killing of any such wild mammal as an act of mercy if he shows that the mammal had been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering;

(b) the killing in a reasonably swift and humane manner of any such wild mammal if he shows that the wild mammal had been injured or taken in the course of either lawful shooting, hunting, coursing or pest control activity;

The difficulty here is that Mr Maugham does not suggest the fox was either “disabled” (let alone “so seriously disabled … that there was no reasonable chance of its recovering”), which would be necessary for S. 2 (a) to apply, or “injured” so as to bring 2 (b) into play. However 2 (b) can also make the killing of an uninjured animal lawful, if it was “taken in the course of … lawful … pest control activity.” It is obviously lawful to fence your chickens to keep foxes out, and providing such fencing could, I supppose, be termed “pest control activity.”

It is rather harder to argue that a fox accidentally trapped in the netting has been “taken.”  It’s an uncomfortable use of the word, which seems to imply an element of deliberation – and deliberately enmeshing a fox, which no-one suggests Mr Maugham did, would probably not have been a lawful pest control activity anyway- but the bigger problem is that even a lawfully “taken” fox can only legally be killed in a “reasonably swift and humane manner.” Note that the killing has to be both reasonably swift and humane. It was swift enough, but was it reasonably humane? I would happily give Mr Maugham the benefit of the doubt, but he would have made matters much easier for himself if he had tried to ring a vet or the RSPCA before killing the fox.

(I should say, as an aside, that on the two occasions I have rung the RSPCA, once about either a dog locked in a hot car and once about a deer trapped on a fence, they have been completely useless, although they are quite good at prosecuting batty old ladies for having too many cats. I’m not sure I would bother the next time I see an animal in distress.)

S.1 of the Wild Mammals (Protection) Act is the most obvious offence which the RSPCA could investigate, but they will also consider the Animal Welfare Act 2006.

Although generally concerned with domestic animals, the 2006 Act also applies to a wild animal whichis under the control of man whether on a permanent or temporary basis.” Once trapped in the netting, that would seem to apply to the fox; it became in the terminology of the Act a “protected animal,or at least it is arguable that it did. The distinction between a wild animal and one that is “under the control of man … on a … temporary basis” is not always easy to establish.  Is a fox trapped in netting necessarily “under control of man” at all, even temporarily?

However, assuming that the fox was sufficiently “under control” to become a “protected animal,” under S.4 a person commits the offence of causing unnecessary suffering to it if:

(a) an act of his, or a failure of his to act, causes an animal to suffer,

(b) he knew, or ought reasonably to have known, that the act, or failure to act, would have that effect or be likely to do so,

(c) the animal is a protected animal, and

(d) the suffering is unnecessary.

The advantage from the prosecution’s point of view is that – unlike the offence under the 1996 Act – under S.4 of the 2006 Act there is no requirement to prove an intent to cause unnecessary suffering, or even recklessness as to whether such suffering might be caused. The issue would not be Mr Maugham’s intent, but whether the suffering inflicted was “unnecessary.” The Act helpfully sets out a number of matters which should be taken into account in that regard:

(a) whether the suffering could reasonably have been avoided or reduced;

(b) whether the conduct which caused the suffering was in compliance with any relevant enactment or any relevant provisions of a licence or code of practice issued under an enactment;

(c) whether the conduct which caused the suffering was for a legitimate purpose, such as–

(i) the purpose of benefiting the animal, or

(ii) the purpose of protecting a person, property or another animal;

(d) whether the suffering was proportionate to the purpose of the conduct concerned;

(e) whether the conduct concerned was in all the circumstances that of a reasonably competent and humane person.

S.18 of the Act does in fact specifically authorise a vet, or in exceptional circumstances a constable, to kill a suffering animal,  but that is little comfort to Mr Maugham who is neither a vet nor a constable.

In the final analysis the RSPCA would have to prove that Mr Maugham’s conduct was not that of a “reasonably competent and humane person.”

We must hope that the RSPCA is sensible and does not prosecute. There is no reason to think that Mr Maugham is cruel to animals. He appears to have acted out of kindness, in a very stressful and difficult situation.  The law should be sensible of the problems an untrained person has when suddenly being required to deal with a trapped and entangled fox. A swift blow, or series series of blows to the back of the head may well have been preferable to struggling, for who knows how long , while waiting for a vet, all the time in an agony of terror in the wire netting.

No public interest would be served by putting Mr Maugham behind bars.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

61 thoughts on “Should Jolyon Maugham be prosecuted for bludgeoning a fox to death?”

  1. Interesting, but what about the right to protect your property from pests? There is government advice on this. Where does that fit within the context of the law as outlined in your very interesting blog? Whilst I’m not in favour of killing foxes if it can be avoided, that he was protecting livestock, and possibly ending the distress of the animal, surely makes prosecution very difficult?

    https://www.gov.uk/guidance/foxes-moles-and-mink-how-to-protect-your-property-from-damage

    1. The law prohibits many methods of pest control including locking snares and I would be surprised if bludgeoning a fox for such a purpose is lawful.

    1. Hmmm ! Fox caught in netting , what shall I do call RSPCA and have someone come and deal with it …. who knows what they’re doing . nah , kill it then crow about it on social media.

  2. Yes, he should be prosecuted and given 3 months (NOT suspended). And he should be suspended for a year for bringing the profession into disrepute, in the same way a solicitor would be.

  3. Maugham didn’t just beat the animal to death, he boasted about having done so in public. He revelled in his actions, and only started to row back when he realised that too many people didn’t view his act as an interesting holiday anecdote, but the kind of thing that a psychopath might do. He likes publicity; I think it is in the public interest to give him some more.

  4. He said it was caught up in netting (which itself seems remarkable for a fox) not that it was hanging on wire. Unless he has started using barbed wire in place of chicken wire, I’m not sure we can extrapolate that the fox was suffering any pain prior to being walloped with a baseball bat.

  5. I agree about the RSPCA over such situations. They do have some good welfare facilities for animals (eg rescued horses, dogs etc) but are useless in the situation described.

    Far better to phone a vet or the local police. I often phone the latter when coming across a half dead deer, hit by a passing car or lorry as it sped through the forest (sped without stopping). Imagine hitting such a large animal at night when on a motorcycle (you not the deer).

    The police either come out to check safety matters or send a marksman to shoot and then remove the animal. I don’t wait around! As for the RSPCA…. I’d be waiting all night.

  6. “A fox entangled and struggling in wire netting is likely to be in great pain and distress. Even mating foxes make a terrifying noise, so (although he does not say) I can well imagine a fox trapped in wire, perhaps cutting ever deeper into its flesh, would have been screaming with pain and terror. Such screaming might well cloud a man’s judgement, and even with the clearest of judgement Mr Maugham would have wanted to end the poor animal’s suffering as quickly as possible.”

    Moving, imaginative stuff. You appear to be rehearsing as Mr Maugham’s defence lawyer. But here is what he actually tweeted subsequent to his original tweet:

    “Imagine me, slightly post-Xmas in Claire’s kimono, wielding bat in urban garden.”

    8:27 AM – 26 Dec 2019
    10 Retweets66 Like

    Jo Maugham QC

    Verified account

    @JolyonMaugham
    “If only Tom Sharpe was still alive…”

    8:33 AM – 26 Dec 2019
    30 Likes

    ###

    It was only after the horrified responses started coming in that he changed his tune. Before that his tone was a mixture of joking and boasting.

    “No public interest would be served by putting Mr Maugham behind bars.”

    Yes, that’s exactly what one might expect a metropolitan QC to say about a fellow metropolitan QC who’d just boasted about beating a fox to death. People Like You are special, aren’t you?

  7. He should have known better & kept his mouth shut.

    The obvious criticism that has been made of the RSPCA is that its prosecutions never seem to consider ‘The Public Interest’ so batty old ladies with rather to many cats get prosecuted and even if acquitted end up with large bills.

    I had a personal experience about 20 or so years ago when a flock of badly neglected sheep strayed into fields opposite my house. As there were a lot neither the Police, Ministry of Agriculture or RSPCA were in the slightest bit interested despite the animals wandering into the load any dying all over the place. Certainly the ‘Prevention of Cruelty to Animals’ didnt seem to be on anyone’s agenda then.

    1. “He should have … kept his mouth shut.”
      You must be new to Jolyon Maugham. The man clearly has not had a thought in years that wasn’t expressed to his sycophantic followers on social media. Moronic statements fall out of him like some sort of diarrhoea. Textbook case of a narcissistic personality disorder.

  8. Good heavens. It is a fox, not a wolf or a lion. An animal weighing about 6kg. Wildlife rescuers often free trapped or snared foxes and badgers. And unless the good QC has razor wire, it seems unlikely a fox caught in chicken mesh would be suffering in agony—it probably just wanted to escape.

    He could’ve snipped it loose, or if that necessitated getting too close to the head then ring a nearby wildlife centre to have someone come out and do so. All it takes is some bite proof gloves and a firm grip.

    Very odd to suggest that a compassionate response, unless the fox was bleeding to death, was to bludgeon it. Not by any standards a good way to die and entirely unnecessary.

  9. He should be prosecuted by the RSPCA, he should be investigated for his other actions in regards to animals (both his pets and wild animals) that may not be immediately in the public domain. Even if his actions turn out to be legal and the animal was suffering, the fact that he felt boasting about his distressing morning on Twitter was necessary or remotely sensible then it says a huge amount about him as a human and I question his ability to operate as a QC. It will make all of his future legal arguments based on morality questionable.

  10. Hilarious analysis. Closing ranks, eh Matthew?
    This was not an act of kindness. This was an act of revenge against a fox trying to catch his chickens. He boated about it. He made light of it. He only got serious when he realised that his arrogance and hubris had caused others to react in a negative way – probably with the potential legal consequences now in mind.
    This is what happens when you strut around like an arrogant, entitled, narcissistic p**** and do not have any thought that isn’t communicated to his sycophantic followers on social media. I hope someone crowdfunds a private prosecution. Say are the Scottish courts more or less likely to provide the result we are looking for…?

  11. I think the confusion here is caused by a badly worded question.

    You ask ‘should he be prosecuted?’ then examine whether a prosecution would be successful under current legislation.

    I think those responding are interpreting your question as ‘does he deserve to be punished’ and not ‘would a prosecution be successful?’

  12. He has broken the law and must be punished accordingly. The fact that he is a high profile QC should not even be a consideration. He had every opportunity to handle this matter differently. I suggest he uses his cash ( like I did) and invest in some seriously good fox proof runs and chicken housing. The fact that your final comment says he should not be put behind bars makes a mockery of our legal system. Please make sure to advise everyone that should you become trapped you are happy to be dispatched with a couple of blows to the back of the head. Silly man!

    1. That’s a foolish comment. He’s not even been charged, let alone been put on trial, yet you are confidently asserting the law has been broken. That’s not how the law works.

  13. “The law should be sensible of the problems an untrained person has when suddenly being required to deal with a trapped and entangled fox.”

    Replace “fox” with “cat” or “dog”. Would you similarly advocate bludgeoning it to death and allowing the perpetrator to escape unpunished ?

    Your attitude is that we should just let him get away with it thus setting a precedent. Let me try and predict the legal arguments put forward in defence of any similar future offenders: “M’lud, the accused loves animals and in fact keeps several small dogs. He was hungover at the time of the incident and acted out of kindness in what was a very stressful and difficult situation as his prize terriers were stuck down the foxhole at the time. He is untrained in the field of battering furry animals to death and this should be taken into consideration.”.

    Sarcasm intended.

    1. Moreover, time was when a QC would have been treated much more harshly for letting down the side. The working class used to get off more lightly then. How times have changed. Here we have Mr Scott bending over backwards to exonerate this silky miscreant in a way which contrasts embarrassingly with how he treated the Robinson case.

  14. One man’s pest is another person’s sentient fellow animal with whom we share this planet. The piece above starts with a defence, but really we do not know what was in his mind, or if the fox was in so much pain it had to be killed, which is kind of a ridiculous thing to say, if he was only trapped in wire mesh, which may have been put in place to trap such and animal; who knows? And, the piece further takes a defensive poster disparaging a potential witness to a crime as, “a nosey neighbour”. I’ll have to remember that when witnessing something illegal, and turn a blind eye. No witness to a crime should be branded as a busy body or nosey neighbour. They should not be so disparaged. Stuff you, I’m not going to be your witness if that is the attitude of the legal profession to my potential civic duty.

  15. ‘I am quite sure he did not relish the task of killing the fox, indeed he tweeted that he “did not especially enjoy killing it.”’

    Does “especially” have a different meaning in legal circles then?!

  16. Well just shows what idiots professional people can be
    He will get away with this animal abuse of course
    Let us hope his business suffers and karma catches up with him
    If I was a QC I would lock him up fine him lots and bar him from his profession

      1. Surely for any such home-kept bat to be a successful deterrent its presence in the home must be advertised in some way… ?

        Otherwise surely any would be intruder is incapable of being deterred from that intrusion by the presence of a baseball bat they are completely oblivious to…

    1. I am told the the best thing to deter intruders is a large Maglight (Metal Torch)

      Basically you can justify having one anywhere in the house

      M’Lud I found an intruder in my bedroom and battered him with the Maglight I keep by my bed in case of power cuts. Replace with rolling pin, baseball bats, kitchen knife etc then decide what sounds most plausible

  17. My friend, in a similar situation, put on some stout leather gloves, got slightly bitten and scratched and released the fox. There was no need to act precipitately, without advice, and to boast about it. I have been very impressed by Mr Maugham and his actions on many fronts. At this point he seems to have let himself down, probably criminally

  18. QC’s often sit as judges, so, if you were a QC you could have the power to lock him, or those like him, up. And, people keeping a weapon as a defence weapon in a car are often prosecuted for having a weapon. He seems to be confessing to all types of potential crimes. Of course, all potential crimes are only crimes if his mates call out his potential crimes. But, that seems unlikely, it called bringing the administration of justice into disrupt. Something that the profession will not do to each other. They’d rather see criminal and corrupt judges etc continue in their positions rather than be exposed, should they all be exposed.

    1. QCs don’t necessarily sit as judges, I’m not a QC anyway, or a judge, and never will be, and the country is fortunate that I have no power to lock anyone up, even Mr Maugham.
      The baseball bat was kept in his house, perfectly lawfully, no doubt along with lots of knives, tools & otheritems that could be considered offensive weapons if they were kept in his car. It’s only a crime to have an offensive weapon in public, otherwise these QC judges could lock up almost everybody.

      1. Do judges not lock anyone up if they’re found to be in possession of a Swiss Army Knife with a large or, shock-horror, safety-locking, blade in their car toolkit?

        But would that also apply in a Camper-Van in a public place? Caravan? Mobile Home?

        How about a boat though?!

        But if it’s a House-Boat!

        1. Think you are mixing up bladed articles and offensive weapons. The answer to your questions is No. No. No and No. You may have any number of swords, daggers, mediveal maces etc at home. You may also carry them if you wish on private land which the public do not have access to. All of the above are offensive per se and you may not have them in a public place unless you have reasonable excuse (such as taking part in a historical re-enactment, travelling to HEMA class etc). It is perfectly legal to own such items and to own them with the intent to use them as weapons should the need arise in self defence, provided you do not have them in a public place.

          Baseball bats, hammers, cricket bats etc are not offensive weapons per se as they are not “made or adapted for the purpose of causing injury.” You may have any or all of the above in a public place or a private place. You may not carry any item however with the intent to cause injury in a public place. A baseball bat / hammer / screwdriver / fountain pen / any item at all would be an offensive weapon if you were carrying it in a public place with the intent to use it to cause injury to someone (but an intent to frighten is not enough).

          Items with a blade or point fall within different legislation. An arming sword is both an offensive weapon and an article with a blade or point. A folding pocket knife with a blade of 3 inchs or less is excepted from the definition of a bladed article, so you may lawfully carry one as of right in a public place if you so wish. Any other edged tool (lock knife, machete etc) is not an offensive weapon (unless you have it with the intent to injure) and you may lawfully have it in a public place provided you have a good reason.

          If your car / camper-van / mobile home is in a public place then its contents are also in a public place. But you would not commit an offence by having edged tools in your tool kit as you have a good reason for having them. You would not have a good reason if you took them out of the car and were just wanding around in public with them.

          House-Boats are classed as dwellings and are not public places.

          1. But that was my “point”.

            I thought people (eg respectable citizens caught driving while black) found to have a 3.5″ or 3″ locking blade on a penknife have been found guilty.

            And the full definition of the “crime” was stopping off at the shops on the way from work with your work knife in your pocket innocent.

            Get home, forgot to pick up milk, pop back, forget to take work knife out of pocket, guilty as charged.

            Go fishing, come home, leave fishing knife in boot of car, nip to shops in car, also guilty as charged.

            And if that is the case for a car, what about a boat or caravan if the knife isn’t specifically part of the cutlery set or tool (or fishing) kit.

            Also I seem to recall that the lock-knife rule, as with many firearms ones, was invented by the police, was appealed quite high up, and couldn’t be resolved for some technical reason, but the court recommended parliament dealt with it sooner rather than later.

            Does anyone know what happened there?!

  19. “No public interest would be served by putting Mr Maugham behind bars.”

    It must almost always be in the public interest to jail people with the sort of privilege enjoyed by QCs. Else the oiks might assume that the whole legal process is biased.

    Which failing, accept that he’s shown such defects of character as would justify his being appointed a Justice of the Supreme Court.

  20. Small point, I know, but the kimono tweet is dated November 11th, so unless the poor creature clung to life for 45 days while he beat it ceaselessly, I assume it was a separate incident and he wasn’t still wearing the kimono on boxing day when he put the injured fox out of its misery.

  21. I make no apologies about my comment “if I was anywhere near this shit I would kill him”, all he had to do was call the RSPCA but no, he wanted to play macho now I want revenge too, the Fox was doing what is natural the man was doing what man does best not using his brain, kill kill kill kill kill kill kill fucking idiot.

    1. That tweet, Roger , is unquestionably an incitement to violence, An offence punishable with up to ten years imprisonment.
      I have reported it to the police.

    2. Soooooo…….

      The killer of chickens kill chickens.

      The killer of foxes kills foxes.

      And the killer of men doesn’t see why he should call out the hangman, he prefers to handle his killing himself!

  22. If there is a prosecution it will rest on whether the action taken was ‘necessary’. JM would have to prove that it was and to do that he’ll have to prove that the fox was sufficiently injured or suffering, and that he had properly considered all other reasonable alternatives to alleviate its suffering before killing the animal in such a manner.

    He cannot claim ‘pest control’ without falling foul of the permitted legal methods of dispatching the fox. The burden of proof is on him and I think he has very little prospect of proving that his action in bludgeoning the fox to death was ‘necessary’. I suspect any reasonable person (the man/woman on the Clapham omnibus) would find it hard to agree that it was.

    Whatever the outcome of the case might be, I feel there is nevertheless a compelling public interest in the CPS trying the issues in court. There has to be clarity on this kind of issue and a substantial bit of case law would help. I think whatever happens JM will regret this for the rest of his life and will never be allowed to forget it.

  23. @Mr B J Man.

    You would be committing an offence if you had a lock knife, a fixed blade knife of any length or a pocket knife with a blade of more than 3 inches without one of the four statutory defences. Its not somthing that was made up by the police. It was made up by the govenment and the slightly odd way they drafted the Section 139 of the CJA 1988.

    The Act probibits any article with “a blade or is sharply pointed.” Note the odd wording. As a result a butter knife is a bladed article. It is not sharply pointed and the blade is blunt. But the Act does not say “a sharp blade or is sharply pointed”. So a butter knife falls within the section. So would a fencing sword. A fencing sword is not an offensive weapon as it is not made or adapted to cause injury. Quite the reverse, the edges are blunt and rounded, it has no point and the blade is made much more flexible than a real sword so it dosent apply pressure on a thust. It is made or adapted not to cause injury, so you can safely fence with them, but it is a bladed article as it has a blade (albiet not sharp). You would therefore have to show you had a good reason if you had a fencing sword or butter knife in a public place.

    The Act then goes on however to excempt any article which is a folding blade of less than three inches from the definition of a bladed article. A swiss arm knife (or any knife) which is a folding pocket knife is not as a matter of law a “bladed article” (cos that is what Parliment said in the Act). You do not have to have a good reason if (but only if) the knife is a folding pocket knife with a blade of less than 3 inches. It is not that you cannot have a lock knife, fixed blade knife or a pocket knife with a blade longer than inches in a public place. Youi can. But you must have a good reason for having it. You do not need a good reason if it falls within the statutory exception of a folding pocket knife.

    The case on lock knives was Deegan [1998] 2 Cr. App. R. 121, CA. A lock-knife is not an offensive weapon as it is a tool. But it is not a folding pocket knife as it is not foldable at all times. This does not mean that you may not have a lock knife in a public place. But you do have to show a good reason which you do not have to do so for a non-locking pocket knife.

    Forgeting is a defence as long as the orginal reason you had the knife before you forgot about it was a good reason. IE: If you had the knife for fishing / use at work etc, left it in your car and forgot about it you would not comit an offence (see Jolie [2003] EWCA Crim 1543; [2004] 1 Cr. App. R. 3).

    In none of your examples would the person commit the offence. Whilst you are using it at work you have the statutory defence of use at work. When you are using it for fishing you have a good reason. When you are transporting it from A to B you also have a good reason.

    Items in a car or campervan (if it is on public land) would be covered by S139. But you would not be committing an offence by having cultary in a campervan or tools in a car as you have a good reason.

    I am not committing an offence by putting by fencing swords in my bag in my car when I go to HEMA class. They are bladed articles but I have a good reason. I am not committing an offence when I transport them from home to class. If I forgot I’d left them in the car I would not be committing an offence. However if I went shopping at tescos wearing a sword on my hip I would be as I don’t have a good reason for taking my sword to tescos. Same with a lock knife or other bladed article.

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