Tuesday, February 14, 2017

That Day...

Saturday, February 04, 2017

is hunting fun?

Another A. P. Herbert Misleading Case...

Mr. Justice Plush gave judgement to-day in the Harkaway Hunt case.

His Lordship: These proceedings have been instituted by the Crown against the Master of the Harkaway Fox­hounds to secure a declaration that he is liable for Entertainments Duty. 

     This tax is a singular product of our own times. Our fathers regarded the entertain­ment of the citizen as a lawful and desirable business, and the Roman emperors went so far as to provide free entertainment for the people, ranking this in importance next to the provision of bread. But the King-Emperor of our realm has in his wisdom seen fit not only to with­hold all assistance from the purveyors of public enter­tainment, but to levy a heavy duty upon them. This tax is so heavy as to partake almost of the nature of a fine, only exceeded in severity by the duties on the sale of spirituous liquors; and there is reason to suppose that in the mind of the Grown the two things are coupled together as harmful practices deserving of discourage­ment.

     The tax is not a tax upon profits but upon gross receipts; and it has been proved in evidence before me that a theatre which is not attracting the public for the reason that it is presenting one of the plays of the national poet, Shakespeare, and is therefore making a weekly loss, will still be required to render a weekly payment to the Exchequer amounting, roughly, to twenty per cent of its takings. It is within the knowledge of the Court that the bookmakers of our land were recently required to pay a duty of only two per cent on their receipts; but so energetic was the objection of these valuable citizens to a tax which had no relation to profits that it was removed. The Entertainment Tax ranges from sixteen to nearly twenty per cent, varying with the prices charged for the entertainment. The impost is a strange one in an age which announces as its chief objective a general increase of leisure and recreation, and in so far as entertainment is founded upon literature and the arts the tax may be said to be a tax upon education and the mind.1

     These considerations have a relevance, which may not immediately appear, to the question which the Court is called upon to answer: Is fox-hunting an enter­tainment?
The defendant, Lord Leather, is Master of the Hark-away Foxhounds, and he has in the box given us a clear and straightforward account of his proceedings, which I am prepared to accept as the truth. As I understand him, the country district in which he resides is subject to the ravages of a cruel and voracious quadruped of the genus Vulpes alopex, commonly known as fox. This creature is of a carnivorous habit and preys upon the poultry of the peasants and farmers, causing much distress of mind and monetary loss; it is cunning, swift, difficult to catch, and a prolific breeder. The defen­dant, therefore, a public-spirited man, has taken cer­tain measures to rid the district of this pest and so to secure the livelihood of the poultry-keeper and the food-supply of the country. He has purchased a number of specially selected dogs and has trained them to pursue the fox across country, guided only by their sense of smell, which is exceptional.   He has also organized a band of ladies and gentlemen who, like himself, have the interests of British agriculture at heart and are willing to assist him at whatever personal risk.   These helpers, loosely called the ‘Hunt’, are mounted on horses, and by their mobility and knowledge of wood­craft render invaluable aid in the intimidation, appre­hension, and destruction of the fox.   Many of them, the defendant has told us, are willing to give up a day’s work in the metropolis and make a special journey to the country in order to play a small part in one of his concerted operations against the common enemy. These operations are conducted three or four times in a week with tireless vigour all through the winter months; but even so it has been found impossible to exterminate the pest.   It was not made quite clear to me why the defendant relaxes his efforts in the summer­time, but I understand that once again he has been guided by his solicitude for the farmer, whose standing crops might suffer damage from the exertions of the defendant’s dogs.   The fact remains that during those months the fox is unmolested, as free to multiply his own species as he is to diminish that of the hen.   Indeed, the witness Turmut, a farmer, some of whose irrelevant and noisy evidence I ought not perhaps to have ad­mitted, maintained with some heat and no little ingrati­tude that the defendant and his helpers would do better to conduct their campaign against the fox with rifles and shot-guns both in winter and in summer.   But I was assured by the defendant that for technical reasons this is wholly impracticable.

     The procedure of a hunt, as I understand it, is as follows: The fox is alarmed and dislodged from its lair by the loud barking of the dogs and the playing of musical instruments. Should the quarry escape into the open country, as, to the chagrin of the hunt, it often does, the dogs at once give chase, and the horsemen fol­low the dogs; other helpers follow in motor-cars along the nearest road, and many of the poor follow on foot. Now, it is the case for the Crown that all these persons, although as practical men and women they genuinely desire to rid the neighbourhood of a destructive animal, find a keen enjoyment in the process of destruction for its own sake. No one has ventured to question the single-minded purpose of the defendant, but it is argued that what for him was a crusade has become for his helpers an enjoyable spectacle, excitement, gratifi­cation—in a word, an entertainment. The witness Turmut strongly supported this view; and he remarked with some force that the number of the defendant’s helpers is in fact far in excess of what is practically necessary or useful, and that it is still increasing. He  went so far as to say that many of the helpers did more *harm than good, but that portion of his evidence did not favourably impress me.
     If the contention of the Crown be correct, there is here a development not without parallel in other depart­ments of the national life. The Englishman never enjoys himself except for a noble purpose.²He does not play cricket because it is a good game, but because it creates good citizens. He does not love motor-races for their own sake, but for the advantages they bring to the engineering firms of his country. And it is common knowledge that the devoted persons who conduct and regularly attend horse-races do not do so because they like it, but for the benefit of the breed of the English horse. But their operations have attracted many thousands of citizens who do not conceal that they visit horse-races for their own selfish pleasure. Accordingly the State imposes an Entertainment Tax upon their tickets of admission; and a member of the Jockey Club would not be  excused on the ground that his purpose at Epsom was to watch and foster the English thorough­bred.

     The relevance of my observations on theatres will now begin to appear. The defendant has admitted in evidence that he collects an annual tribute from his helpers, from farmers, and others, who habitually attend his operations and enjoy the spectacle of his dogs and horses at their pious labours. These contributions are necessary for the maintenance of the dogs and their keepers and for other purposes; and they are willingly given by the ladies and gentlemen of the Hunt in return for the pleasure or entertainment which the defendant has provided. The Crown say therefore that he is liable to pay Entertainment Duty on the sums so re­ceived, at the statutory rates, that is to say, two shillings on the first fifteen shillings and sixpence for every five shillings or part of five shillings over fifteen shillings.

     The defendant’s answer is that the fox may be said to enjoy the hunt for its own sake—and even the dogs and horses—but that his human followers are governed only by philanthropic motives, and that his takings are devoted to a philanthropic purpose, the destruction of vermin and the preservation of poultry, and should therefore be exempt under the Act. Unfortunately for him this plea is disposed of by the precedents of the racecourse and the theatre. There is a school of thought which still holds that the plays of Shakespeare have an educative and uplifting character; but even if that could be established it would not exempt the rash man who presented them from handing over nearly a fifth of his takings to the Exchequer. In my judgment the conten­tion of the Crown has substance.

     I hold that fox-hunt­ing is an entertainment; that the moneys received by the defendant from the hunters and farmers are by way of payment for that entertainment, and that it must, like other entertainments, make its proper contribution to the public revenues according to law. Lord Leather is, as it were, the manager of a theatre: the Hunt are his audience and the dogs his actors. If, after remunerat­ing his actors and paying the duty, he is out of pocket, it cannot be helped. It is a dangerous thing to give pleasure to the people. He has been Master for six­teen years, and he must pay duty not only in respect of the current year but for every preceding year since the institution of the duty by the Act of 1916. It has been urged before me that this will be a hardship; but, as Lord Mildew said in Mope v. The Llandudno Sewage Commissioners, ‘Nullum tempus occunit regi’—or ‘Time is no object to a Government Department.’ Costs to the Crown, paripassu.
1 And sec page 247 for a full examination of the tax, per Wool, J.
² The same thought has been well expressed by the poet Herbert:
‘No Englishman—’tis one of Nature’s laws— Enjoys himself except for some good cause.”