Exmoor huntsman Tony Wright last week won his appeal against his 2006 conviction of hunting illegally.

Exeter County Court Judge Graham Cottle said he believed Wright had made “every effort to comply” with the Hunting Act. But significantly for other hunts facing court action over illegal hunting, the judge decided at the start of the appeal that it was up to the Crown Prosecution Service (CPS) to prove that Tony Wright was not hunting within an exemption, rather than putting the onus on Mr Wright to prove that he was.

“Judge Cottle’s decision has restored our faith in the judicial system because Tony Wright was always innocent,” said Stephen Lambert, chairman of the Council of Hunting Associations (CHA). “The decision has cheered people up a lot — for the first time it would seem that the judge was actually interested in the facts.”

He added: “It highlights how complicated the Hunting Act is, but we must not become complacent about this. It is still in force, and it does still have teeth.”

Tony Wright echoed his sentiments: “The future is bright for hunting, and this proves we all have to work together.”

He added: “The judge was annoyed the law is such a mess.”

Judge Cottle’s decision about the burden of proof contrasted with the Quantock Staghounds’ appeal at Taunton Crown Court in October. Then Mr Justice Wyn Williams ruled that it was up to the defendants, huntsman Richard Down and amateur whipper-in Adrian Pillivant, to prove that they were hunting within the law.

Solicitor Tim Ryan of Knights solicitors, who represented Tony Wright, told H&H: “This is very good news for Tony Wright, and while the decision doesn’t set a binding precedent, a county court judge has given his opinion on the burden of evidence and he’s the most senior judge to have ruled on the matter so far.”

The question of who should bear the burden of proof has had barristers and judges scratching their heads across the country, and will now be decided by London’s High Court.

“While only the Exmoor Foxhounds and the staghound packs are using the two hounds exemption, where the burden of proof lies is a fundamental point to all exempt hunting cases,” said Countryside Alliance (CA) spokesman Tim Bonner.

Last week, the Crown Prosecution Service’s (CPS) prosecution of four men connected to the Devon and Somerset Staghounds (D&S) at Taunton Magistrates Court was adjourned because barristers for both sides agreed the case should not proceed until clarification from the High Court is given on where the burden of proof lies.

District Judge Parsons at Taunton Magistrates Court will give a decision on the burden of evidence next week. It has been agreed between D&S solicitor Tim Hayden and the CPS legal team that whoever loses will appeal the decision to the High Court.

Tim Ryan added: “I can’t see the CPS or League Against Cruel Sports (LACS) bringing another prosecution where this issue is concerned until the High Court has ruled.”

And while the CPS considers whether to appeal against Judge Cottle’s decision, CA president Baroness Mallalieu QC told H&H she believes the only prospect of appeal in the case is the question of where burden of proof lies.

“Nobody seems quite sure, and it will be very interesting to see what happens,” she said. “But it will not affect Tony Wright either way, he has now been acquitted.”

And with three further prosecutions concerning four more exemptions, the question of burden of evidence will become ever more pertinent.

While both the Exmoor Foxhounds and Quantock Staghounds cases hinged on the exemption of flushing to guns using two hounds, the D&S case involves the exemptions of rescue and of research and observation.

A case against the Isle of Wight hunt centres on the exemption allowing hunting to take place with a bird of prey and was due to be heard two weeks ago. It has also been adjourned until the burden of evidence point is clarified.

LACS spokesman Barry Hugill told H&H that it is urging the CPS to appeal Judge Cottle’s decision. It originally brought the prosecution against Tony Wright privately, but the appeal case was taken on by the CPS.

“We anticipate there will be an appeal,” he said, “and we will have the option to intervene and be party to it should we choose to. We will make that decision at a later date.”

To rumours that LACS has spent £100,000 on the Tony Wright case he added: “That’s not true, but whatever we spent on it, we don’t regret a single penny.”

This news story was first published in Horse & Hound (6 December, ’07)