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Can Jolyon Maugham be prosecuted for clubbing a fox to death?

29 December 2019

10:33 AM

29 December 2019

10:33 AM

Jolyon Maugham QC got up early on Boxing Day 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 became trapped 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, mainly to deter intruders.

I doubt that he relished the task of killing the fox, and he tweeted, again infelicitously, that he “did not especially enjoy killing it.”

It is quite possible that he 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, and 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 as a result Mr Maugham had little choice but to report himself to the RSPCA.

Whether or not he was right to kill the fox, it is difficult to see his tweet as anything but a horrendous misjudgement.

Amongst huntin’, shootin’, and fishin’ types “bowlin’ Reynard over” is still widely condoned, but only if the correct etiquette is observed. He did not observe it. Only amongst some hen owners was the killing likely to enhance his reputation, and that was hardly worth the obloquy heaped on him even by those who might previously have approved of his legal activities. In a single tweet he acquired all the reputational problems of a Newfoundland seal-pup clubber.

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.”

Such twitter hatred is bad enough, but facing an RSPCA investigation is unimaginably worse. He may now be in for a very uncomfortable time indeed.

The investigators will not rely solely on his tweeted admission, helpful though that will be. He may already have been interviewed under caution; if not that will be a high priority for the RSPCA “inspectors”. He will face the suspects’ dilemma: should he answer questions and risk strengthening the case against him, or should he decline to do so and risk that a lack of candour will tell against him in court?

The fox’s cadaver will probably now have been recovered and sent to a veterinary pathologist. A single fatal injury to the back of the head would be much easier to explain than multiple bruises and fractures. His wife’s kimono may be seized and examined for DNA from the fox and a forensic interpretation of blood spatters.

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. So unfair are the rules about costs that even when they lose the RSPCA are usually awarded their expenses from central funds. They run little risk. Mr Maugham, on the other hand, will be out of pocket whatever happens, and if he is convicted he may well have to pay the RSCPA’s costs as well as his own.

I had initially thought that Mr Maugham’s tweet could be some kind of strange wind-up, intended to make a statement about Boxing Day hunting meets, except that this is not the first time he has tweeted about trying to use his baseball bat on the fox while wearing his long-suffering wife’s kimono. He had even hinted at wishing to dispatch it with an air rifle. Those careless light-hearted tweets from November 11th don’t make his current position any easier.

Assuming that his account is accurate, what is the 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 potential offence 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. Someone suggested that he could have wrapped it in a towel before cutting it free from the netting, though I doubt that it came from a person 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.

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. The same cannot be assumed for the Highbury Corner beaks.

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 suppose, be termed “pest control activity.”

One difficulty is that the word “taken”seems to imply an element of deliberation; and deliberately enmeshing a fox, which no-one suggests Mr Maugham did, would not have been a lawful pest control activity anyway. A 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 not for the fox – by ringing a vet or the RSPCA before reaching for baseball bat and kimono.

(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.)

The RSPCA could 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 might apply to the fox; if so, it was then a “protected animal.”

Under S.4 a person commits the offence of causing unnecessary suffering to a protected animal 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) …, and

(d) the suffering is unnecessary.

There is a certain “damned if you do and damned if you don’t” element to the offence, since it can be committed not just by an unreasonable act, but also by an unreasonable failure to act.

A distinct advantage from the prosecution’s point of view is that – unlike the offence under the 1996 Act – there is no requirement under the 2006 Act 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 simply 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.

The Act does in fact specifically authorise a vet, or in exceptional circumstances a constable, to kill a suffering animal, but that is small comfort to Mr Maugham as no such dispensation is given to barristers.

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.” There is scope for argument there.

For my part I hope that the RSPCA is sensible and does not prosecute. There is no reason to think that Mr Maugham is generally cruel to animals. He may well 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. It may seem brutal but a swift blow, or series of blows to the back of the head may 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.

I realise I am probably one of the few people in the country still to feel sympathy for Mr Maugham. Priggish, pompous, self-righteous, sanctimonious, hypocritical and rude he may sometimes have seemed, but none of us are without our faults, many far worse than that. And there is something repulsive about revelling in his humiliation before sitting down, as many of those who condemn him will have done, to enjoy the cold remnants of a Christmas turkey slaughtered in an industrialised killing-shed while strung up from a chain by its legs.

That is not an argument that will make the slightest impression on the RSPCA, but it is hard to see what real public interest would be served by putting Mr Maugham in the dock.

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