Scottish Court of Session Decisions

The reclaiming motion called before the First Division, comprising the Lord President (Hope), Lord Allanbridge and Lord Clyde for a hearing.

At advising, on 16 June 1995—

LORD PRESIDENT (Hope).—This is a reclaiming motion by the second and third respondents against an interlocutor which the Lord Ordinary pronounced after the first hearing in a petition for judicial review. The petitioner carries on business near Carnwath under the name H J Errington & Co. His business consists in the manufacture and sale of various products including a blue veined semi-hard cheese known as Lanark Blue. He sought judicial review of a decision by the first respondent, who is a justice of the peace, that 44 batches of his Lanark Blue cheese were contaminated with listeria monocytogenes, were unfit for human consumption and should be disposed of or destroyed. The second respondents are the food authority for the District of Clydesdale in terms of sec 5 of the Food Safety Act 1990. The third respondent is an authorised officer of the second respondents for the purposes of that Act.

The decision was issued on 3 March 1995 after a hearing which took place before the justice on 24 February 1995. The petitioner sought its reduction on three grounds. The first was that there had been communings before the hearing between the justice and the solicitor for the second respondents. But nothing was made of this point at the first hearing, as the facts are still in dispute. The second was the refusal by the justice to allow the cross examination of witnesses. The third was that the justice had failed to give reasons for her decision. The Lord Ordinary held that in refusing senior counsel for the petitioner the opportunity of cross examining the second respondents' witnesses there had been a denial of natural justice. On this ground he sustained the petitioner's first plea in law and pronounced decree of reduction. He was inclined to the view, in regard to the third ground, that the justice should have given proper and adequate reasons for her decision. He also said that it would be highly desirable, in view of the complex issues involved in this case, that the services of an experienced sheriff should be sought rather than those of a lay person. The second and third respondents have challenged the Lord Ordinary on all these points in this reclaiming motion. But the principal issue is whether the justice was under a duty to allow the petitioner's counsel to cross examine the second respondents' witnesses.

Among the provisions which the 1990 Act contains in regard to food safety is the power given by sec 9 to an authorised offer of a food authority to inspect any food intended for human consumption. If it appears to him that any food fails to comply with the food safety requirements, he has power under subsec (3) of that section to seize the food and remove it in order to have it dealt with by a justice of the peace. In Scotland the expression ‘justice of the peace’ includes a reference to the sheriff and to a magistrate: see sec 9(9)(a). Although these expressions are not further defined in the 1990 Act, it is clear that the references to a justice of the peace and to a magistrate in Scotland are references to a justice of the peace appointed under sec 9 of the District Courts (Scotland) Act 1971 and to a stipendiary magistrate appointed under sec 5 of that Act. The expression ‘sheriff’ in relation to Scotland includes the sheriff principal: see sec 5 of and Sched 1 to the Interpretation Act 1978. Thus there is in Scotland a wide choice of persons by whom the matter may be dealt with on the application of the authorised officer.

Subsections (5) and (6) of sec 9 of the 1990 Act are in these terms: [His Lordship quoted the same as set out supra and continued:]

When the hearing took place on 24 February 1995 the petitioner was represented by senior counsel. He had with him as his witness Richard North of Leeds Metropolitan University, a food safety adviser. The second respondents were represented by a solicitor. She had with her as witnesses the third respondent, Dr J McLauchlin of the Central Public Health Laboratory, London, and Dr Ahmed, a consultant in public health medicine with Lanarkshire Health Board.

The precise sequence of events at the hearing is not agreed. There is a dispute in fact between the parties as to when it was that the justice said that there was to be no cross examination of the witnesses. The petitioner avers that she commenced the proceedings by saying that she would not allow cross examination. The second and third respondents aver that she adjourned to consider the parties' submissions on this point and that, having done this, she intimated that cross examination was not appropriate but that she would ensure that everyone would be given an opportunity to speak and to answer questions through her. It is however agreed that the dispute on this point of detail does not matter if, as the petitioner avers, the justice was obliged to allow both parties to cross examine each other's witnesses. Her decision not to allow cross examination had clearly been taken by the time the second respondents' witnesses gave evidence. It is also agreed that the justice said that any questions to witnesses would have to be put through her. The petitioner's senior counsel declined to put any questions in this way to the second respondents' witnesses. The respondents aver that the solicitor for the second respondents put a few questions to the petitioner's witness Mr North through the justice.

After hearing submissions for both parties the justice reserved her decision. On 3 March 1995 she issued her decision, which was in these terms:

‘The following decision has been made after the hearing held on Friday 24 February 1995 and on the basis of relevant evidence presented and in the absence of any statutory provision at the present time, regarding contamination of cheese with listeria monocytogenes.

‘I am of the opinion that the contaminated batches of Lanark Blue cheese are potentially hazardous to public health and are therefore unfit for human consumption and should be disposed of or destroyed.

‘Any reasonable expenses in connection with the destruction or disposal of the cheese to be defrayed by the owner, H J Errington & Co.’

The Lord Ordinary held that the justice was under a duty to exercise her powers under sec 9(6) of the 1990 Act in accordance with the principles of natural justice, especially as she was obliged by the statute to reach her decision in this case on the basis of evidence. As to whether her refusal to allow cross examination was a breach of these requirements, he was not willing to affirm that failure to allow cross examination would necessarily be unfair in all circumstances. In his opinion regard had to be paid to the scheme of the legislation, to the circumstances of each case and to the extent to which prejudice may have resulted when cross examination has been disallowed. Having examined all these factors, he was of the opinion that there was a denial of natural justice in this case because the petitioner's counsel was denied the opportunity, by cross examining the second respondents' witnesses, of testing the strength of their evidence.

The first question which was debated in the reclaiming motion was whether the hearing which the justice held in this case was administrative or was judicial or quasi-judicial in character. Counsel for the second and third respondents submitted that she was acting in an administrative capacity only and that her only duty was to act fairly. It was maintained that she was not bound to act in accordance with the principles of natural justice, as she was not being required to decide an issue between the parties. It was pointed out that the petitioner's case was not pled on the basis that the justice had erred in the exercise of a discretion in deciding not to allow cross examination. Rather it was averred that she was ‘obliged’ by the principles of natural justice to allow both parties to be heard and to allow both parties to cross examine each other's witnesses. This was said to be a misconception of her duty in this case. As an administrator her duty was simply to act fairly, in the exercise of her discretion under sec 9(6) to decide the matter on the basis of such evidence she considered appropriate in the circumstances. It was not unfair for her in proceedings which were administrative in character to insist that all questions to the witnesses should be put through her.

The question whether a justice is acting in a judicial or in an administrative capacity may be important for some purposes, as it was, for example, in Rodenhurst v Chief Constable of Grampian Police. But I do not think that this distinction requires to be drawn in the present case, as it was accepted by counsel for the second and third respondents that even on their approach the justice was under a duty to act fairly. It was submitted that the duty to have regard to the principles of natural justice could be distinguished from the duty to act fairly, and that while these duties might overlap to some extent that was not so in the present case. I think however that it is a misconception to regard these two duties as separable. Of the two, the duty to act fairly is more broadly expressed, but as the principles of natural justice are designed to achieve fairness of procedure the concept which underlies both expressions of duty is the same. In this context the precise category into which the proceedings may be said to fall is not important.

In Ridge v Baldwin Lord Reid at [1964] AC, p 72 described the principles of natural justice as the essentials of all proceedings of a judicial character. It was noted in that case that these principles had a limited application to the wider duties imposed on ministers and other organs of government. But it was held that they applied to a body such as the Watch committee by whom a power of dismissal for misconduct was being exercised. In my opinion this decision shows that, in their wider application, the principles of natural justice may be invoked in all cases where there is an issue to be decided which affects the rights of the person who is entitled to be heard by the decision maker. This seems to me to be just such a case, as the petitioner, who was a person who might be liable to prosecution, had the right under sec 9(5) to be heard and to call witnesses. That his rights were liable to be affected by the decision of the justice is clear from the provisions of sec 9(6). If it appeared to her that the cheese failed to comply with food safety standards, it was her duty to order it to be destroyed or otherwise disposed of and to order any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the petitioner.

In view of the nature of these proceedings I consider that the justice was under a duty to have regard to the principles of natural justice, and that in the circumstances of this case this is simply another way of expressing the broad proposition that she was under a duty to act fairly. As Harman LJ said in the Court of Appeal in Ridge v Baldwin at [1963] 1 QB, p 578, natural justice is after all only fair play in action. In Furnell v Whangarei High Schools Board at p 679G Lord Morris of Borth-y-Gest, delivering the majority judgment of the board, said that natural justice is but fairness writ large and juridically. He also noted that the conceptions which are indicated when natural justice is invoked or referred to are not to be confined within hard and fast and rigid rules. These observations were anticipated by Lord President Clyde in Barrs v British Wool Marketing Board at pp 82–83 when he said that, where a tribunal had not dealt fairly and equally with the parties, its conduct of the proceedings had been at variance with the principles of natural justice. In Breen v Amalgamated Engineering Union at p 190G, Lord Denning MR said that even though the functions of a domestic body are not judicial or quasi-judicial, but only administrative, the body must still act fairly. Edmund Davies LJ at p 195B and Megaw LJ at p 200C treated the expressions ‘acting unfairly’ and ‘acting contrary to natural justice’ as interchangeable. In my opinion it is sufficient for the purposes of the present case to say that the duty to act fairly, which the second and third respondents admit, and the duty to act in accordance with the principles of natural justice, which the petitioner avers, are different ways of expressing the same thing. The point which is at issue is whether, in the exercise of this duty, the justice was bound to allow the petitioner's counsel to cross examine the second respondents' witnesses.

The argument for the second and third respondents was that it was a matter for the discretion of the justice whether or not cross examination should be allowed. It was said that, as it was for her to decide in terms of sec 9(6) what evidence was appropriate in the circumstances, it was for her to decide how witnesses were to give their evidence, and that as the petitioner did not attack the exercise by her of a discretion, that was an end of the case. Counsel also submitted that her decision was a sound one because cross examination was peculiar to judicial and certain kinds of quasi-judicial proceedings. He said that it was not a normal incident of administrative proceedings such as those on which she was engaged in this case. Any suggestion that there was a presumption in favour of allowing cross examination would be based neither on reason nor on precedent. This argument was forcefully presented, but in my opinion it overlooks the point that the duty to act fairly may include other duties according to the circumstances. Thus if fairness requires that something be done, not to do that thing will be a breach of duty to act fairly. If it is necessary to permit cross examination in order to perform the duty to act fairly, then there is a duty to permit cross examination. It is not a matter of discretion, as the duty to act fairly does not leave it to the discretion of the decision maker to decide what is and what is not fair. That is a matter to be decided in the light of the circumstances, and any view which the decision maker may take on it is subject to review by the court.

Counsel for the second and third respondents relied as support for their argument on Bushell v Secretary of State for the Environment. In that case an inspector was presiding over a public local inquiry into two draft schemes for the construction of motorways. He disallowed an objector's request to cross examine the department's witnesses about traffic needs and the method adopted by the department for projecting traffic growth. It was held that this was a matter of Government policy in the sense that it was a topic unsuitable for investigation by individual inspectors at individual local inquiries, so the inspector's refusal to permit cross examination on this issue was not a breach of the rules of natural justice. Lord Diplock said at p 97E that it must be a matter of circumstances whether fairness required an inspector to permit a person who had made a statement on matters of fact or opinion, whether expert or otherwise, to be cross examined by a party to the inquiry who wished to dispute a particular statement. The facts of that case are, of course, distinguishable from those which are before us here. The issue of Government policy in that case was not one for the inspector to determine, whereas in this case the issue as to whether the cheese failed to comply with food safety requirements was one which the justice required to decide. As for the point that it depends on the circumstances whether fairness required the justice to permit the cross examination of witnesses, I think that Lord Diplock's dictumsupports the petitioner's argument that the circumstances of this case were such that fairness did require the justice to take this course. On this view it was not a matter for her discretion, as the circumstances required her to allow cross examination if the proceedings were to be fair.

We were referred to a number of cases to illustrate the circumstances in which cross examination might or might not be appropriate. In Cowe v McDougall the pursuer had obtained a decree in the small debt court. It was held that there had been oppression within the meaning of sec 31 of the Small Debt (Scotland) Act 1837 because the sheriff substitute had refused to allow the defender to cross examine the pursuer or to lead evidence on the question of damages. Lord Low described the procedure in that case as amounting to a refusal to hear parties, and Lord Ardwall said that there had been a departure from the principles of natural justice. I do not think that that case has any direct bearing on the circumstances with which the justice was faced in the present case. But the observations of Lord Low and Lord Ardwall indicate the importance of allowing cross examination in a case where a party has a right to be heard and where it would be unfair not to permit him to cross examine the other party's witnesses. In R v Deputy Industrial Injuries Commissioner, ex parte Moore at p 488A, Diplock LJ said that the rules of natural justice which the deputy commissioner had to observe could be reduced to two, of which the second was that, if a hearing was requested, he must fairly listen to the contentions of all persons who were entitled to be represented at the hearing. At p 490C–F he went on to say this: ‘Where, however, there is a hearing, whether requested or not, the second rule requires the deputy commissioner (a) to consider such "evidence" relevant to the question to be decided as any person entitled to be represented wishes to put before him; (b) to inform every person represented of any "evidence" which the deputy commissioner proposes to take into consideration, whether such "evidence" be proferred by another person represented at the hearing, or is discovered by the deputy commissioner as a result of his own investigation; (c) to allow each person represented to comment upon any such "evidence" and, where the "evidence" given orally by witnesses, to put questions to those witnesses; and (d) to allow each person represented to address argument to him on the whole of the case. This in the context of the Act and the regulations fulfils the requirement of the second rule of natural justice to listen fairly to all sides.’

Counsel submitted that the requirement mentioned in head (c) of this passage to allow each person represented ‘to put questions to those witnesses’ was satisfied in this case, because the justice said that she was willing to allow questions to be put through her to the witnesses. But I understand the requirement which was being described here by Lord Diplock as being to allow each person to put his own questions to the witnesses, by questioning the witness himself directly, not putting questions through the deputy commissioner or any other intermediary. In my opinion this passage provides strong support for the view that the justice was obliged in the present case to allow the petitioner's counsel to put questions to the second respondents' witnesses—that is, to cross examine them on their evidence.

In R v Board of Visitors of Hull Prison, ex parte St Germain (No 2) it was held that the board of visitors were not bound by the technical rules of evidence, but that the admission by them of hearsay evidence was subject to the overriding obligation to provide the accused with a fair hearing. Geoffrey Lane LJ said at p. 1409F that, depending upon the nature of the evidence and the particular circumstances of the case, the sufficient opportunity to deal with the hearsay evidence might well involve the cross examination of the witness whose evidence was initially before the board in the form of hearsay. I do not see this case or the other cases to which we were referred as indicating that there is a presumption that cross examination should be allowed, as junior counsel for the petitioner suggested. But in my opinion they show that a failure to allow cross examination may amount to a failure to give a fair hearing to a party who wishes to challenge the evidence on which the other party seeks to rely.

Counsel for the second and third respondents also sought to find support for their argument in R v Cornwall Quarter Sessions, ex parte Kerley. In that case a justice of the peace condemned a carcase of meat as unfit for human consumption and ordered it to be destroyed under sec 10 of the Food and Drugs Act 1938. It was held that there was no appeal against his decision, as he was not sitting as a court of summary jurisdiction but was acting in an executive capacity. Lord Goddard CJ at p 910 gave various reasons for the view that a justice sitting alone was acting administratively and not as a court. Donovan J at p 911 said that the mere fact that there was a dispute and that witnesses might be called and heard did not show that the proceeding was judicial or that there was a lis between the parties. Counsel submitted that there was a close analogy between that case and the present one, because there was no material difference between the provisions of sec 10 of the Food and Drugs Act 1938 and sec 9 of the 1990 Act which applies in this case. No issue was raised there as to whether the justice should have permitted the cross examination of witnesses. The case was cited in order to illustrate the nature of the jurisdiction which the justice in the present case was being called upon to exercise.

The provisions of sec 10(2) of the 1938 Act have been re-enacted in sec 9(5)(a) of the 1990 Act, which also provides that the person in whose possession the food was found is entitled to be heard and to call witnesses. The words ‘on the basis of such evidence as he considers appropriate in the circumstances’ which appear now in sec 9(6), are not to be found in sec 10(3) of the 1938 Act. I do not think that this is an important difference, because in a case where there is a right to call witnesses it must follow that the justice should have regard to the evidence given by those witnesses. But I agree with the Lord Ordinary that the situation which was described in that case was very different from the situation which arose here. The question whether the cheese in this case failed to comply with food safety requirements was not one which could be decided in a summary manner simply by examining it, as in the case of rotten meat or bad fish. Nor does it seem appropriate, in Scotland at least, to attach the same significance to the fact that the justice was acting alone as Lord Goddard saw in that case when he held that the justice was acting administratively. Section 2(2) of the District Courts (Scotland) Act 1975 provides that the jurisdiction and powers of the district court shall be exercisable by one or more justices, so the fact that the justice was acting alone here does not of itself point to the conclusion that she was acting otherwise than in a judicial or quasi-judicial capacity.

In R v Birmingham City Justices, ex parte Chris Foreign Foods (Wholesalers) Ltd of the Food and Drugs Act 1955, although acting in an administrative or executive capacity, was obliged to act fairly and impartially. James J said at p 1434C that the exercise of that duty should be seen to be carried out openly, impartially and with fairness. This echoes Donovan' J's observation in Kerley at p 911 that the justice has to bring qualities of impartiality and fairness to bear upon the problem. While these dicta are helpful to the petitioner, it seems to me that neither of these cases has a direct bearing on the point which is at issue here. They do not address the crucial question which is whether the refusal to allow cross examination was a breach of the duty to act fairly.

In the present case the prejudice which resulted from the refusal to allow cross examination is self evident. There was a difference of opinion between experts on points which were crucial to a sound determination of the questions which the justice had to decide. The result of her refusal to allow cross examination was that the evidence of the second respondents' witnesses could not be challenged in the only manner which was likely to be effective in a case of such difficulty. So I consider that the Lord Ordinary was well founded in his decision that by refusing to allow cross examination in these circumstances the justice disabled herself from reaching a fully informed conclusion upon the evidence. This amounted to a denial of natural justice to the petitioner, as her duty to act fairly in this case required her to permit cross examination of the second respondents' witnesses.

The answer to that question must in the end depend upon the circumstances. In my opinion it is clear from the facts in this case that the justice could not decide whether the cheese failed to comply with food safety requirements without examining the evidence of the expert witnesses. We were not referred in detail to their evidence, but the documents which were shown to us indicate that important questions were raised by the petitioner's expert about the reliability of the evidence of the second respondents' witnesses. The nature of these questions was such that they could not be answered without a detailed study and understanding of the witnesses' evidence. Counsel for the second and third respondents submitted that the point which was being made by these witnesses was a simple one. There were no statutory guidelines, but they said that the matter could be decided by the application of the PHLS Guidelines which did not give rise to any questions of difficulty. But the application of those guidelines to this case was disputed, and the justice could not decide that issue fairly between the parties without examining the detail of their evidence.

In a case of this difficulty there was an obvious risk of unfairness if the second respondents' witnesses were not open to cross examination on the detail of their evidence. There was a risk that defects in that evidence would lie undetected, and that the justice would not be informed about the issues which she had to decide. It is no answer to this point to say that she put both parties on an equal footing by denying to both of them the opportunity of cross examining each other's witnesses. Nor is it an answer to say that the public have an interest in food safety. The consequences for the petitioner and his business were likely to be very serious if the case went against him, and he had a right under the statute to attend and to call witnesses. The issues which the petitioner's representative wished to raise in cross examination were issues on which the petitioner wished to be heard. These were issues which he wished to raise by way of challenge to the evidence of the second respondents' expert witnesses. The unfairness to him lay in the denial to him of the opportunity of opening up these issues by putting questions about them directly to the second respondents' expert witnesses.

Counsel for the second and third respondents also submitted that, in order to plead a successful case on an alleged breach of the rules of natural justice, a petitioner had to aver prejudice and that as there were no averments of prejudice in this case the petitioner's averments were irrelevant. This submission appeared to be based on a statement in the rubric in Cigaro Ltd v City of Glasgow District Licensng Board 1982 SC 104 at p 105 that it was observed in that case that ‘a breach of the rules of natural justice cannot relevantly be averred in the absence of averments of prejudice’. But it is clear from an examination of the opinion at p 112 that this part of the rubric found in The Scots Law Times report of the case at 1983 SLT p 553 is inaccurate. Lord President Emslie's observations were directed to the averments in that case only, which he described as speculative. He did not say that an averment of prejudice was required in all cases where a breach of the rules of natural justice was alleged. In Barrs v British Wool Marketing Board at p 82 Lord President Clyde said that the question was whether the tribunal had dealt fairly and equally with the parties before it in arriving at its result. It was sufficient in that case that the conduct of the proceedings was at variance with the principles of natural justice, and there was no discussion as to whether the result of that unfairness had been to create prejudice. In most cases it can be assumed that prejudice will result from a failure in the duty to act fairly.

That is sufficient for the decision in this reclaiming motion. Although the Lord Ordinary went on to examine the question whether the justice was under a duty to give reasons and made observations about the desirability of the issue in this case being considered by a sheriff rather than a justice, I do not find it necessary to express any opinion on these matters in this case.

For these reasons I would refuse this reclaiming motion and adhere to the interlocutor of the Lord Ordinary.

LORD ALLANBRIDGE —I have read the opinion of your Lordship in the chair and, for the reasons stated therein, I agree this reclaiming motion should be refused.

LORD CLYDE —The petitioner seeks judicial review of a decision by a justice of the peace dated 3 March 1995 made under sec 9(6) of the Food Safety Act 1990 to the effect that certain batches of cheese manufactured by the petitioner were unfit for human consumption and should be disposed of or destroyed. The decision was issued following on a hearing attended by representatives of the local food authority and of the petitioner. The principal ground of challenge is set out in art 12 of the petition in these terms: ‘The first respondent was obliged to have regard to the principles of natural justice in regulating the procedure to be followed at the hearing. In particular she was obliged to allow both parties to be heard, and, as such, to allow both parties to cross examine witnesses called by the other.’

The Lord Ordinary has held that the refusal to allow cross examination was a denial of natural justice and has reduced the decision. The food authority, along with the officer authorised by them who had required the cheese to be dealt with by a justice of the peace under the provisions of sec 9 of the Act, have reclaimed against the Lord Ordinary's interlocutor.

It was argued on behalf of the reclaimers that the petitioner's formulation of his challenge was misconceived because the only duty on the justice was to act fairly and that that duty was in some way different from the duty to observe the principles of natural justice. But that is a fallacious approach. The observation made by Lord Morris of Borth-y-Gest in the case of Furnell v Whangarei High Schools Board at p 679 seems to me entirely applicable to the present case. His Lordship there said: ‘Natural justice is but fairness writ large and juridically. It has been described as "fair play in action". Nor is it a leaven to be associated only with judicial or quasi-judicial occasions. But … the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration.’

As I understand it the term ‘natural justice’ is used where attention is to be directed to those aspects of fairness which apply to what may be described as the constitutional and procedural aspects of the task of decision making. The term ‘fairness’ may be particularly appropriate where the issue is further removed from what may reasonably be called a justiciable question (McInnes v Onslow-Fane at p 1530). The cross examination of witnesses is a matter falling within the procedural aspects of the decision making and the petitioner was in my view correct in focusing attention on matters of natural justice and not simply raising the point as one of fairness.

The excerpt from the speech of Lord Morris of Borth-y-Gest which I have just quoted is also relevant to another distinction which the reclaimers sought to raise and found upon before us, namely a distinction between administrative and judicial or quasi-judicial decisions. The purpose of this argument was to enable the proposition to be advanced that any right to cross examination would belong to judicial or quasi-judicial proceedings and not to administrative proceedings, that the proceedings in question in the present case were administrative in character and accordingly that no right to cross examination should arise in the present case. The first leg of this argument relates in part to the alleged distinction between fairness and the principles of natural justice, but just as those labels are useful in particular contexts to focus attention on particular areas of inquiry but may not be determinative, so also the categorisation of functions as administrative or judicial or quasi-judicial, while often useful as an element in the decision whether particular acts or omissions were or were not lawful as falling or not falling within the scope of what in the circumstances was required under the general principle of fairness, nevertheless should not be seen as determinative of that issue. As Sir William Wade expressed it (Administrative Law (7th edn), p 511) the ‘judicial’ fallacy was repudiated in Ridge v Baldwin. An approach along the lines of such categorisation was held to be unnecessary by Parker LJ in R v Birmingham City Justices at p 1432, and the duty to act fairly in both administrative and judicial decisions was recognised in Breen v Amalgamated Engineering Union.

In arguing that the justice in the present case was acting administratively the reclaimers founded on the case of R v Cornwall Quarter Sessions, ex parte Kerley. In the course of his decision in that case Lord Goddard CJ observed (at p 910): ‘In my opinion the justice is simply acting administratively and it is quite impossible to say that he is acting as a court of summary jurisdiction.’

The observation was recognised as obiter, but in any event, in my view, even within the limits of use of the label ‘administrative’ which I have already acknowledged, the case does not materially assist the reclaimers. The case was dealing with procedure under sec 10 of the Food and Drugs Act 1938 which was in different terms than those of the Act of 1990. The 1938 Act applied in England and I am not confident that a useful parallel can be drawn between the work of a justice in England and the work of a justice in Scotland, particularly when, in the application of the 1990 Act to Scotland, the reference to a justice of the peace is to be taken as including reference to a sheriff and to a magistrate. As was pointed out, there are differences in the procedural provisions contained in the 1938 Act as compared with those in sec 9 of the Food and Drugs (Scotland) Act 1956 as well as those in sec 9 of the Act of 1990, but it is not easy to treat these as making the decision in Kerley distinguishable. Moreover the problem in Kerley was solely whether the decision in question was one made by a court of summary jurisdiction for the purpose of the appeal provisions contained in sec 88 of the Act of 1938 and it was in that context and for that purpose that Lord Goddard made the observation which I have quoted. I also note that the propriety of the classification in Kerley is questioned in de Smith's work on Judicial Review of Administrative Action (4th edn), p 216, fn 14. It is also to be observed that Donovan J recognised in his judgment in the Kerley case that even although the justice was acting in an executive capacity he still had to bring qualities of impartiality and fairness to bear upon the parties. In R v Birmingham City Justices, ex parte Chris Foreign Foods (Wholesalers) Ltd at p 1433, Lord Parker CJ preferred that way of referring to the matter.

The reclaimers then came to argue that the matter of a right to cross examine was a matter of discretion for the justice in the exercise of her general duty to act fairly. This was linked in argument to the proposition that she was bound only by principles of fairness and not bound by principles of natural justice. But I have already sought to displace the distinction sought to be made between these concepts. It is certainly correct that the petitioner does not present his case as a challenge to the exercise of a discretion and in the submission made on his behalf in the reclaiming motion there was no attempt to argue that the matter was one of discretion. What the respondent argued was that it was a matter of obligation on the justice in the circumstances of the case.

In my view it is evident from the authorities to which we were referred that the existence of a duty to allow cross examination in the context of a statutory hearing such as in the present instance depends upon the circumstances of the case. If there is no duty to allow it there may be circumstances where it may be allowed as a matter of discretion, and then the exercise of that discretion could be a potential matter for review. But that is not the position in the present case. Here the matter is one of a duty in the circumstances. In Bushell v Secretary of State for the Environment at p 97 Lord Diplock stated that a refusal to allow cross examination of a witness who had given evidence at a local inquiry was not unfair per se. The circumstances there were those of an inquiry attended by many parties who wished to make representations without incurring the cost of legal representation and without the ability to attend throughout the whole length of the proceedings. Lord Diplock regarded it as unfair to ‘over-judicialise’ such an inquiry by insisting on the observance of court procedures. He stated (at p 97E): ‘Whether fairness requires an inspector to permit a person who has made statements on matters of fact or opinion, whether expert or otherwise, to be cross-examined by a party to the enquiry who wishes to dispute a particular statement must depend on all the circumstances’

On the other hand, as was noticed in the case of R v Board of Visitors of Hull Prison at p 1409, in some circumstances to deprive a party of the opportunity of cross examination would be to deprive him of a fair hearing.

In the circumstances of this case I consider that it was part of the duty of affording a fair hearing to the petitioner that he should have been given a right to cross examine. This was in terms of the Act a hearing before either a justice or a sheriff. The person in charge of the food, who may be liable to prosecution under the Act, is entitled under sec 9(5) to be heard and to call witnesses. The justice or sheriff may be the person who is sitting in the court before whom the alleged offender is charged. The justice or sheriff must proceed upon such evidence as he considers appropriate, but these words cannot be construed so as to cut across the duty to act fairly or in accordance with natural justice. I also note, although counsel were not concerned to put much weight on the point, that if an order is made it is to be at least sufficient evidence for the purpose of a criminal prosecution (sec 9(9)). The matter in the present case was not a dispute about an isolated incident affecting one piece of food but related to a whole brand of product. It had direct consequences of the gravest importance for the petitioner, his business and his workforce. It involved the possible destruction of his property. Furthermore, despite the attempts of counsel for the reclaimers to suggest that the issue was a simple one, it was to my mind one of considerable technical complexity calling for expert witnesses on both sides in an area where no clear guidance was available. To my mind a fair hearing in these circumstances required the giving of a right to cross examine the witnesses led on behalf of the food authority. As in the cases of R v Deputy Industrial Injuries Commissioner, ex parte Moore and Cowe v McDougall, so also here the duty to listen fairly to the contentions of all parties entitled to be represented at the hearing required the justice to allow the petitioner to put questions to the witnesses who gave oral evidence and in this case at least that involved the right to cross examine. The ground on which the justice evidently proceeded in refusing cross examination was that she considered it sufficient that the parties should ‘set out their positions’. In so understanding what the purpose of the hearing was she failed to appreciate that fairness required that the respective positions of the parties should be tested by cross examination. In my view she erred in law and her decision was rightly quashed by the Lord Ordinary.

It was suggested that the readiness of the justice in the present case to have questions asked through her was sufficient. Reference here was made to the propriety recognised in the case of R v Board of Visitors of Hull Prison, ex parte St Germain (No 2) of requiring questions to be channelled through the chairman where direct questioning could lead to the proceedings becoming out of control. But that situation is far removed from the situation of a cross examination of expert witnesses by senior counsel. In the circumstances of this case such channelling was no substitute for cross examination. It was accepted by counsel for the reclaimers that it would give the justice a freedom to decide whether or not any question should be asked and in the circumstances of this case in my view that would amount to denial of a fair hearing. While it was argued that both parties were treated equally in respect that both were denied the right to cross examine, the fact was that only the petitioner wished to cross examine. The deprivation of the right for both parties thus still created an inequality between them.

It was also argued for the reclaimers that the petitioner's case was not relevant in the absence of averments of prejudice to the petitioner. This was sought to be supported by reference to the case of Cigaro Ltd v City of Glasgow District Licensing Board.In my view that case is not authority for the proposition that in every case a petitioner seeking judicial review must be able to aver and establish some particular prejudice beyond the fact that the decision of which he complains has been tainted by some breach of the principles of natural justice. The case of Barrs v British Wool Marketing Board, which was referred to in the decision in Cigaro, is a clear authority to the converse. In my view the decision of the Lord Ordinary was correct on this point and I agree also with his observation that the petitioner was prejudiced by the very fact of being denied the opportunity to test the strength of his opponent's experts.

The Lord Ordinary's decision proceeded solely on the ground of the refusal of cross examination. There was also argument raised before us on the question whether there was any obligation on the justice to give reasons for her decision. I do not find that matter to be a ground for the Lord Ordinary's decision. His remarks under that head only go the length of an inclination towards a view and it is inappropriate to explore that matter further. I would only add that it is not impossible in my view to read the decision letter as containing reasons in that the question before her for decision was whether the food failed to comply with safety requirements. That phrase is defined in sec 8(2) as meaning inter alia that it is unfit for human consumption. The justice held that the batches of cheese ‘are potentially hazardous to public health and therefore unfit for human consumption’. That view lay behind the decision made under sec 9(6) that the cheese failed to comply with food safety requirements. The question remaining would be whether she was required to go further back in a chain of reasoning.

On the whole matter I agree that the reclaiming motion should be refused.