AN APPEAL UNDER PART 1 OF THE CRIMINAL APPEAL ACT 1968
ON APPEAL FROM DERBY CROWN COURT
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE MCGOWAN DBE
SIR PETER OPENSHAW
| M NAJIB & SONS LIMITED
- and –
|CROWN PROSECUTION SERVICE
Mr Richard Wright QC and Mr Howard Shaw (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 19 April 2018
Crown Copyright ©
See Costs judgment:  EWCA Crim 1554
Lord Justice Leggatt (giving the judgment of the court):
"without reasonable cause, fails to give to an inspector acting under these Regulations any assistance or information or to provide any facilities that the inspector may reasonably require that person to give or provide for the performance of the inspector's functions under these Regulations;"
Pursuant to regulation 18, a person convicted of such an offence on indictment is liable to a fine or to imprisonment to a term not exceeding two years (or both).
DEFRA's TSE monitoring programme
The Crown Court proceedings
The plea of guilty
"for the simple reason that there is nothing unsafe about a conviction based on the defendant's own voluntary confession in open court. A defendant will not normally be permitted in this court to say that he has changed his mind and now wishes to deny what he has previously thus admitted in the Crown Court."
Lord Hughes went on to say (at para 20) that it does not follow that a plea of guilty is always a bar to the quashing of a conviction. Leaving aside equivocal or unintended pleas, he identified two principal cases in which it is not. He explained that the first is:
"where the plea of guilty was compelled as a matter of law by an adverse ruling by the trial judge which left no arguable defence to be put before the jury. So, if the judge rules as a matter of law that on the defendant's own case, that is on agreed or assumed facts, the offence has been committed, there is no arguable defence which the defendant can put before the jury. In that situation he can plead guilty and challenge the adverse ruling by appeal to this court. If the ruling is adjudged to have been wrong, the conviction is likely to be quashed. Contrast the situation where an adverse ruling at the trial (for example as to the admissibility of evidence) renders the defence being advanced more difficult, perhaps dramatically so. There, the ruling does not leave the defendant no case to advance to the jury. He remains able, despite the evidence against him, to advance his defence and, if convicted, to challenge the judicial ruling as to admissibility by way of appeal. If he chooses to plead guilty, he will be admitting the facts which constitute the offence and it will be too late to mount an appeal to this court."
"Thus, a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a verdict of guilty on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstances would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged."
Is there an obligation to assist an inspector in taking samples?
(a) may be cited as the Transmissible Spongiform Encephalopathies (England) Regulations 2010;
(b) apply in England; and
(c) come into force on 6th April 2010."
In addition, regulation 2 (headed "Interpretation") begins with the words "In these Regulations" and then sets out a series of definitions. One of those definitions is:
"'EU TSE Regulation' means Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies…"
Regulation 2(2) states:
"Expressions that are not defined in these Regulations and occur in the EU TSE Regulation have the same meaning in these Regulations as they have for the purposes of the EU TSE Regulation."
Regulation 6(1) states:
"The Secretary of State must grant an approval, authorisation, licence or registration under these Regulations if the Secretary of State is satisfied that the provisions of the EU TSE Regulation and these Regulations will be complied with."
"In relation to any sheep or goats selected for sampling, the occupier of a slaughterhouse … must –
(a) for the purposes of point 7(3) of Part II of Chapter A of Annex III to the EU TSE Regulation, retain the carcass and all parts of the body (including the blood and the hide) pending receipt of the test result…; and
(b) in the event of a positive result, immediately dispose of the carcass and all parts of the body (including the blood and the hide) in accordance with point 7(4) of that Part."
That obligation only applies, however, where a particular animal has been selected for sampling and a sample taken. It does not apply to the earlier stage at which in this case the inspector was seeking assistance from the appellant.
"the [Regulations] contemplate and enact that a monitoring programme should be in place in respect to ovine animals. To give effect to the intention of Parliament as illustrated in the explanatory notes and Schedule 2 of the [Regulations] an obligation is created on a slaughterhouse operator to comply with the [Regulations]. If an obligation did not exist and the [Regulations] were limited to investigation and non-compliance it would run contrary to the intention of Parliament and the EU TSE Regulation. If the submissions advanced by the defence were correct the administration of the [Regulations] in respect of monitoring would be effectively otiose as any slaughterhouse operator could withdraw from sampling, which in my view would defeat the intention of Parliament.
I conclude that the legislative words used confer on an inspector … the authority to obtain samples from a slaughterhouse. Furthermore, as set out within the Regulations and explanatory notes, a slaughterhouse operator who fails to comply with the taking of samples, which I consider on an analysis of the Regulations includes obligations on a slaughterhouse operator to comply with monitoring, is committing an offence under regulation 17."
The inspectors' powers
"Pursuant to regulation 12(1) of the Regulations, the persons in Annex A and Annex B are appointed as inspectors for the purposes of enforcement of the Regulations, in particular Schedule 2 thereof.
The persons in Annex A are authorised, on behalf of the Secretary of State (DEFRA) as follows:
- To approve the Required Method of Operation ("RMOP") for, and the occupier of, a slaughterhouse on behalf of the Secretary of State (DEFRA) in accordance with paragraph 12(1) and 12(3) of Schedule 2 of the Regulations;
- To amend and suspend an RMOP on behalf of the Secretary of State (DEFRA) as provided for in regulation 8 of the Regulations;
- To revoke an RMOP approval for a slaughterhouse as provided for in regulation 9 of the Regulations;
- To grant a derogation in writing as laid down in paragraph 13(5) of Schedule 2 of the Regulations.
The persons in both Annex A and Annex B are authorised, on behalf of the Secretary of State (DEFRA) as follows:
[Two more matters are then listed in bullet points] …"
The inspector who dealt with the appellant was one of the persons listed in Annex A but not Annex B.
"(1) It is an offence for the occupier to use a slaughterhouse to slaughter for human consumption a bovine animal that, in accordance with point 2 of Part I of Chapter A of Annex III to the EU TSE Regulation, requires BSE testing at slaughter, unless the Secretary of State has approved the Required Method of Operation ("RMOP") for that slaughterhouse and that occupier.
(3) The Secretary of State must approve the RMOP if satisfied that all the requirements of the EU TSE Regulation and these Regulations will be complied with …"
Simply appointing an inspector for the purposes of enforcement of the Regulations would not confer on the inspector authority to approve the RMOP for a slaughterhouse, and the occupier of that slaughterhouse, on behalf of the Secretary of State; or at the very least it would be open to argument that the inspector did not have such authority if it was not expressly conferred by the appointment letter.
Alleged unlawfulness of the monitoring programme
"Member States in which the population of ewes and ewe lambs put to the ram exceeds 750,000 animals shall test, in accordance with the sampling rules set out in point 4, a minimum annual sample of 10,000 ovine animals slaughtered for human consumption;"
We understand that the relevant population of ewes and ewe lambs in the UK has exceeded 750,000 animals at all relevant times, so that the UK has been required to carry out testing in accordance with the sampling rules set out in point 4 of Annex III, Chapter A, Part II of the EU TSE Regulation. (A derogation at point 2(c) permits up to 50% of the minimum sample size to be replaced by testing animals killed for a purpose other than human consumption.)
"The sample selection shall be designed with a view to avoid the over-representation of any group as regards the origin, age, breed, production type or any other characteristic.
The sampling shall be representative for each region and season. Multiple sampling in the same flock shall be avoided, wherever possible. Member States shall aim their monitoring programmes to achieve, wherever possible, that in successive sampling years all officially registered holdings with more than 100 animals and where TSE cases have never been detected are subject to TSE testing."
"Monitoring in ovine and caprine animals not slaughtered for human consumption
Member States shall test, in accordance with the sampling rules set out in point 4 and the minimum sample sizes indicated in Table A and Table B, ovine and caprine animals which have died or been killed, but which were not:
— killed in the framework of a disease eradication campaign, or
— slaughtered for human consumption."
It would be completely counter-productive, and would make no sense at all, for a member state to design its programme for TSE monitoring in animals which have died or been killed but which were not slaughtered for human consumption so as only to cover slaughterhouses, which by definition are places where animals are slaughtered for human consumption: see the definition of a slaughterhouse in regulation 2(1) and paragraph 1(16) of Annex I to Regulation (EC) No 853/2004. Indeed, it would make no sense to aim to include any slaughterhouses in such a programme – let alone every slaughterhouse in the country with a throughput of more than 100 animals a year. By contrast, it makes obvious sense to aim the monitoring programme to cover as many farms which might be harbouring infected animals as possible, subject to an exemption for holdings where the number of animals is so small that it would be impractical or unduly burdensome to include them in the programme. That this is the intention of the sampling rules is confirmed by the fact that they include a rule which allows member states to exclude from sampling "remote areas with a low animal density, where no collection of dead animals is organised." That exclusion is clearly directed at agricultural holdings and to the taking of samples from animals which die at such holdings. The exclusion is not apt to apply to slaughterhouses, since the animal density in the area of a slaughterhouse is irrelevant to its throughput and organising the collection of dead animals from a slaughterhouse is a necessary part of its business.