England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
(Mr Justice Stanley Burnton)

		The Civil Justice Centre Park Street Cardiff Wednesday 30 January 2002

Wednesday 30 January 2002

1. LORD JUSTICE LATHAM: This is an application by Miss Hughes for permission to appeal against the refusal by Stanley Burnton J of her application for permission to apply for judicial review. The decision which Miss Hughes seeks to challenge is the decision made on behalf of the Secretary of State for the Environment, Food and Rural Affairs by the National Assembly for Wales to cull sheep on hefts on the Brecon Beacons.
2. The circumstances are set out in the judgment of Stanley Burnton J as they appeared to him at the time. The complaint by Miss Hughes today is essentially that the facts that had been put before the judge on that previous occasion were inaccurate. She has put before this court substantial further information which, she asserts, makes it clear that there was no justification under the Animal Health Act for the culling to take place. In particular, she submits that the only evidence relied upon by the Secretary of State of there being any risk of infection was inadequate. It was based only upon findings of antibodies, and antibodies are not evidence of the existence of infection: they are evidence of past exposure to infection, but no more than that. It follows, she submits, that it was an inadequate basis upon which to exercise the statutory power.
3. The power is contained in section 31 and schedule 3 to the Act. The relevant paragraph of the schedule states as follows:

"The Minister may, if he thinks fit, in any case cause to be slaughtered-

(a) any animals affected with foot-and-mouth disease or suspected of being so affected; and

(b) any animals which are or have been in the same field, shed, or other place, or in the same herd or flock, or otherwise in contact with animals affected with foot-and-mouth disease, or which appear to the Minister to have been in any way exposed to the infection of foot-and-mouth disease."

4. Those are very wide words. In particular, the paragraph makes it clear that it is a question for the Minister to determine whether or not it appears to him or her that animals have been in any way exposed to the infection of foot-and-mouth disease.
5. The evidence upon which the relevant orders to cull were based was set out in the witness statement of a Mr Scudamore, which is said by Miss Hughes to contain significant factual discrepancies. She submits that there was nothing, properly understood, which could or should have given cause to the officials to give advice that culling should take place because, as I have already indicated, the only evidence that there was of any exposure to foot and mouth disease was the finding of antibodies on certain of the sheep which were contiguous to the hefts where the culling took place.
6. Now, it may or may not be that the policy decision taken by the Secretary of State, to rely on evidence relating to the existence of antibodies and the possible extension of a conclusion from the existence of antibodies that there may be existing infection, is proved on a careful examination by way of a scientific inquiry to be an unnecessarily cautious approach to take to the determination of whether or not there has been exposure to the disease sufficient to justify invoking the powers in the Act. Indeed, it may be that, on a detailed and thorough investigation of the evidence in the present case, it will be found that it would have been more appropriate for a decision to have been taken to pen the animals in respect of whom there was any concern and to test, using the tests which Miss Hughes has identified both in the evidence before me and in her submissions, on the basis that that would provide a securer basis for determining whether or not the animals in question had indeed been exposed to disease by being able to identify the existence or otherwise of active infection. That is essentially the point which Miss Hughes makes.
7. The problem for her is that, as she herself accepts, she can only invoke the powers of this court by way of judicial review if it can properly be said that there is an arguable case for saying that the Minister acted outside the ambit of the powers contained in the statute. The problem narrows itself down to this: if all that the statute empowered the Minister to do was to order the slaughter of animals affected with foot-and-mouth disease, or suspected of being so affected, then there might be some substance in her argument. The position, however, under the Act is that the Minister is entitled to order slaughter wherever it appears to the Minister that the animals have been in any way exposed to that infection. The extent to which the court can go behind the decision of the Minister in a case such as this is limited where the Minister asserts, and has asserted, the advice of those concerned with dealing with what clearly was an emergency situation. The evidence before me clearly establishes that, whatever at the end of the day on a careful analysis of the evidence may be the result, at the time that the order for slaughter was given the Minister did have material, upon which he was entitled to act, that the sheep in question had been exposed to the infection of foot-and-mouth disease.
8. As I have said, it may be that at the end of the day the conclusion of the Secretary of State will be shown to have been too cautious. But that is not the issue. The issue is whether or not it appeared to him at the time, through the National Assembly of Wales, that the sheep in question had been exposed to the infection. I am afraid that, although there may be now shown to be discrepancies in the evidence, the fact is that at the time the decision was taken the material justified the Secretary of State, as I have indicated, through his agents, in concluding that the power in the statute could be exercised. Miss Hughes' complaint must be taken, it seems to me, to the inquiries which are at present in train as to whether or not the policies of the Secretary of State were indeed correct and the basis upon which decisions were taken in relation to culling were decisions which, in the light of scientific knowledge now, are decisions which could be criticised. That is a different issue from whether or not the decisions were lawful, which is the question that I am concerned with.
9. It seems to me that there is no arguable case that the decisions were unlawful, which is the question that I have to answer. I would accordingly refuse this application for permission.
ORDER: Application refused. No order for costs. (Order not part of approved judgment)