QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF NORTH YORKSHIRE TRADING STANDARDS REGULATORY SERVICES||(CLAIMANT)|
|ROBERT ANTHONY NICHOLSON||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The DEFENDANT did not appear and was not represented
Crown Copyright ©
Monday, 31st March 2003
"... that he on 13th September 2001 at Roscarrs, Selby:
(i) without lawful authority or excuse contravened article 5(1) of the Animal By-Products Order 1999 (as amended) in that, being the person having under his control animal by-products namely a carcase of a sheep, failed without undue delay to consign it for or dispose of it by either rendering in approved premises, by incineration, or by burial".
"Subject to the following provisions of this article, any person who has in his possession or under his control any animal by-product shall without any undue delay consign it for, or dispose of it by ..."
"A person is guilty of an offence against this Act who without lawful authority or excuse, proof of which shall lie on him
(a) does anything in contravention of this Act, or an order of the Minister, or of a regulation of a local authority ..."
"A. That the respondent was at all material times a cattle farmer living at Sickle Croft Farm, Thorpe in Balne, Doncaster in South Yorkshire, and that he kept a flock of over 70 sheep on land at Roscarrs to the east of Selby in North Yorkshire some miles away from where he lived;
B. That the land in question was a strip which ran adjacent to the River Ouse and accessible from a public footpath along the top of a raised dyke beside the river; the nearest public highway afforded a very restricted view of the said land;
C. That the respondent had been accustomed to visiting the land in question to check the flock either once or twice per week and that by the date in question, 13th September 2001, he had last visited the site some six days earlier;
D. That on 13th September 2002, during the period of a national foot and mouth crisis, an enforcement officer for the Appellant County Council visited the said land ... via the said footpath and found ten dead sheep carcases, six of which were the subject of charges before us; all but two of these were visible to the said footpath which, at the material time, was closed to the public due to foot and mouth restrictions.
E. That the Department for the Environment, Food and Rural Affairs ("DEFRA") had issued a leaflet offering guidance to help eradicate foot and mouth disease. Among recommendations made were (i) the need to make only essential journeys (ii) where practicable to get someone who did not have contact with other livestock to care for sheep kept away from a person's home farm. At the material time no cases of the disease had been reported in South Yorkshire.
F. That with one exception, the sheep in question appeared to have been dead for some two or three days ... in the exceptional case the carcase was accepted to have been there for much longer, although no scientific evidence was put before the court.
G. That the respondent was unaware of the presence of the carcases until alerted by Mr Boyle [of the Appellant Authority] on 13th September 2001. The respondent took appropriate action the following day, having been served with a notice requiring him to dispose of the carcases".
"(i) that a carcase was an animal by-product for the purpose of article 5(1) of the 1999 order. That is agreed.
(ii) that during the period of the foot and mouth crisis, the respondent ought reasonably to have visited the land in question on a daily basis in order to check his flock and that, had he done so, he would have been aware of the presence of the said carcases at an earlier time;
(iii) that the failure of the respondent to visit the land more frequently was, in the circumstances, culpable and amounted to a failure to act without undue delay, as alleged;
(iv) that if the respondent had been unable to visit the land more often he ought reasonably to have arranged for someone else to do so on his behalf;
(v) that it was not incumbent upon the appellant to adduce expert evidence to establish how long the animals had been dead and that the photographs produced to the court of the carcases relating specifically to charges (iii), (v) and (vi) were sufficient to show that these animals had been dead for a significant length of time".
"(i) that the appellant's case was flawed in that there was no scientific evidence before the court as to the length of time the animals had been dead;
(ii) that accordingly there was uncertainty as to the element in the charges alleging "undue delay" for which no legal definition appeared to exist;
(iii) that, in the absence of any definition of the term "undue delay", it was for the appellant to adduce evidence of normal animal husbandry, which he had failed to do;
(iv) that the respondent was unaware of the existence of the carcases prior to 13th September 2001;
(v) that neither the law nor the prevailing circumstances imported any duty upon the respondent to visit the flock more frequently than he did;
(vi) that the reduced accessibility to the land due to closure of the public footpath and the restricted visibility from the public road were relevant factors in determining whether or not it had been reasonable for the respondent to have been unaware of the carcases, along with the published guidelines referred to [above]; and.
(vii) that the respondent had act promptly once the carcases were brought to his attention".
"(i) that since the respondent had acted promptly once the carcases had been brought to his attention on 13th September 2001, the informations were sustainable only if treated as an alleged failure on his part to act promptly at some stage prior to the 13th September: that being the case, the issues of the date of death of the sheep and of good animal husbandry inevitably arose;
(ii) that it was therefore incumbent upon the appellant, in seeking to establish his case, to adduce some expert evidence relating both to the date of death of the sheep and to good animal husbandry generally;
(iii) that the photographs produced in the evidence by the appellant (with particular reference to allegations (iii), (v) and (vii)) were insufficient proof of the date of death and merely supported what was not in dispute namely that (with one exception) the sheep in question appeared to have been dead for two to three days;
(iv) that in the absence of any evidence before us as to what might or might not constitute good animal husbandry it would be wrong for us to make any assumptions and draw any adverse inference from the length of time which had elapsed prior to 13th September since the respondent had visited the flock; and.
(v) that the respondent was unaware of the carcases prior to 13th September and that his state of unawareness was, in the circumstances, not culpable, particularly bearing in mind the advice given by DEFRA. He acted promptly once the presence of the carcases was drawn to his attention; and accordingly we acceded to the submission of 'no case to answer' and dismissed the informations".
"In a prosecution under section 78(a) of the Animal Health Act alleging the failure to dispose of carcases without undue delay
(i) is the prosecution required to establish knowledge on the part of the defendant, constructive or actual, of the existence of the carcases?
(ii) in the absence of proof of the defendant's state of knowledge, is the prosecution required to adduce expert evidence relating to the date of death of the animals in question?
(iii) is the prosecution entitled to ask the court to base culpability on the accused's unreasonable failure to visit the flock in question sufficiently often?
Could a reasonable bench have come to the decision that there was no case to answer in respect of the allegations in the present case and in the light of the evidence presented?"
(i) It is only necessary for the prosecution to prove presence of the carcases on the defendant's land.
A reasonable Bench could not have decided on the present facts there was no case to answer.