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.
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.”
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.:
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:
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 which “is 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.