Scottish Sheriff Court Decisions

This note is produced for ease of reference by parties while my decision is delivered.

I have not recorded in detail in this note the arguments presented by the Procurator Fiscal or the accused in their submissions at the conclusion of the trial. So far as relevant, these will be reflected in the terms of my note. Suffice to say, the Procurator Fiscal invited me to accept that there was both a sufficiency and a quality in the evidence led for the Crown to prove the terms of the charge against each accused and he invited me to convict them of the offences libelled against each of them.

In the submissions for the accused, a number of generic issues common to all accused was raised. In addition the accused Peter Turnbull presented further heads of argument in support of his submission that he be acquitted of the charge which he faced.

I shall deal with each of the heads of argument in turn. I consider it convenient to start with those separately presented by Mr. Turnbull.

1. Necessity

I found no merit in Mr. Turnbull's suggestion that his actions on 23 August 2001 were justified by the concept of necessity. I accepted the Procurator Fiscal's exposition of the law as it presently stands, to be found in the decision of the High Court of Justiciary in Lord Advocate's Reference No.1 of 2000, 2001 S.L.T. 507. In my view, the factual situation in the present case, as presented in evidence, cannot support the propositions suggested by Mr. Turnbull. The defence of necessity is not made out in this case.

2. Personal bar

Mr. Turnbull suggested that on the strength of a radio message overheard by him from the back of a police van, the content of which he said was later confirmed to him by a police officer, on 23 August 2001 to the effect that the persons arrested were to be charged with breach of the peace on the instructions of the Procurator Fiscal, the Crown was personally barred from prosecuting him for any offence other than breach of the peace.

Such a suggestion is not well founded. In the first place there was no evidential basis for the submission, the information all being hearsay. In any event, even if the context of the conversation were known and it was known who had made the statement, that would fall far short of the requirement in law for personal bar to be established. I found difficulty in accepting the submission that the outcome desired was that this accused should have faced prosecution for an offence attracting a higher maximum financial penalty than that for which he was eventually prosecuted.

Further, there is in my view nothing to prevent the Crown prosecuting this accused on a charge different to that on which he was arrested and charged.

Accordingly, the submission of personal bar is rejected.

3. Trespass

Mr. Turnbull submitted that in the special circumstances of a conversation between him and Chief Inspector O' Connor, he was entitled to draw an inference of entitlement to be on the land at Roskill Farm.

My view of that evidence is that Mr. Turnbull was not entitled to draw that inference if his presence on the land was for the purpose of giving effect to an intention to obstruct lawful activity.

4. Lawfulness of the activity

In my view, Mr. Turnbull's submission on this matter merely repeated what had been argued by the solicitors for his co-accused. I shall deal with those arguments later in this decision.

The following arguments were common to all five accused. None of them disputed that his or her activity had taken place in the open air or that it had been intended to have the effect of disrupting the activity of sowing or drilling genetically modified oil seed rape seeds in the field at Tullich farm. In any event I was satisfied from the evidence led by the Crown that such an inference could be drawn from the conduct on 23 August 2001 by each of the accused.

The contentious issues all arose out of the terms of section 68 of the Criminal Justice and Public Order Act 1994 ('the 1994 Act'), viz.

1. Were the accused trespassing on land?
2. Was the activity which persons were engaged on, namely the sowing of genetically modified seed, a lawful activity?

Dealing with those issues in turn, my decision is as follows:

1. Trespass

If, for the sake of argument, it is accepted that the activity engaged on by Mr. Grant and his employees, namely the sowing of genetically modified seed, was lawful, then I have no doubt that all of the accused were trespassing at the time of their engaging in obstructive and disruptive behaviour.

The evidence of the owner of the land, Mr. Grant, which I accepted was to the effect that he had not given consent to the presence of protesters, including the accused, thereon. He did however agree to leave matters to the police to regulate the conduct of parties in the field.

The police, in the person of Temporary Assistant Chief Constable, Ramsay McGhee, indicated to the protesters present that they could enter into and remain on the field. However that was subject to the caveat that if they interfered with the tractor or other machinery then they would be arrested for breach of the peace. Protesters, including all of these accused entered the land thereafter. It is not clear from the evidence if any of the accused were aware of that statement by Mr. McGhee.

In my view, there is no difficulty in finding that any consent, if that is what it was, which in fact did not come from the landowner, was conditional on the good behaviour of the accused. Once a person forms the intention of behaving disruptively or obstructively then, provided the activity about to be or being disrupted or obstructed is lawful, then he or she is trespassing on the land. The accused were on another's land. They were behaving disruptively and obstructively. They had no permission to behave in that way from anyone. In my view, in determining whether trespass has occurred, there is an inextricable link between the nature of the conduct of the accused and his or her presence on the land.

It would be quite possible for a person A to obstruct, or disrupt lawful activity without entering into private land and indeed to intimidate person B so as to deter him from engaging in an activity without person A entering into private land. If that were the situation, for example by protesters standing on a public road shouting intimidatory threats at persons about to embark on a lawful activity within private property, then no contravention of section 68 would occur. That would be because the persons carrying out the intimidation were not trespassing at the time.

If however, such conduct took place within the private property without permission to be present in order to disrupt, obstruct or intimidate, then trespass would be committed.

I therefore reject the submissions made by all accused to the effect that the Crown had failed to prove trespass, on the assumption above stated.

2. Lawfulness of the activity disrupted

Before the court can convict under section 68 it must be satisfied that any activity which the accused intends to disrupt or obstruct is lawful activity. Section 68(2) provides that

The activity in question was the sowing of genetically modified seed, a genetically modified organism. Section 111of the Environmental Protection Act 1990 ('the 1990 Act') provides inter alia that no person shall release any genetically modified organisms (GMOs) except in pursuance of a consent granted by the Secretary of State and in accordance with any limitations and conditions to which the consent is subject.

The arguments presented for the accused were in two parts, namely

1. The meaning of the expression 'good agricultural practice' where it occurs in the consent and whether it had been proved that the consent holder had followed good agricultural practice in the activity disrupted; and
2. Whether the consent holder had complied with the terms of the consent implied by sections 112(4) and (5) of the 1990 Act

I have come to the view that the submission of the Crown in this respect is to be preferred. In my view, a licence or consent issued by a Minister must be read within the four walls of its terms. The potential for confusion or lack of clarity otherwise is too great. If it had been the intention of the Scottish Ministers to import the terms of another document, such as the SCIMAC Guidelines, into the consent, then they could have easily done so. I attach significance to the absence of such reference in the consent and the annex thereto.

My concern in this respect is not what is good or desirable practice in the cultivation of genetically modified crops but whether the activity fell foul of the terms of the consent, since clearly if it did so, then the activity would thereby be unlawful.

Perusal of the Schedule to the consent (Crown production 3) discloses that it is not silent about matters of practice following the introduction of the phrase 'Good agricultural practice' in Part VI at page 22.. Certain steps are set out in paragraph 31. I accepted Mr. Bearhop's evidence that those steps represented what amounted to good agricultural practice for the purpose of the consent.

In my view, it has not been established that the SCIMAC Guidelines are anything other than trade guidelines. Indeed they do not make any higher claim for themselves. Perusal of them and defence production PT 5 indicates that they were prepared for guidance and to encourage public confidence in GM products.

Clearly, conformity by a consent holder with these guidelines would in all likelihood enable him to refute any allegation of failure to follow good agricultural practice. However it does not follow that failure to conform to these guidelines would inevitably characterise the consent holder as guilty of contravening the terms of his consent. There could be more than one way of being good.

Mr. Hingston submitted that the terms of the Annex to the consent did not cover the whole of the process from sowing to reaping of genetically modified crop. If that is the case, that does not, in my view, inevitably lead to the importation of the SCIMAC Guidelines into the consent as a source for the description of good agricultural practice.

In my view, if the terms of the consent were deficient in any way, e.g. in the definition of the term 'good agricultural practice', that would lead to difficulty of regulation and enforcement: what it would not necessarily lead to would be a conclusion that the activity of the consent holder was a criminal act. Indeed a vagueness or imprecision in the consent's description of what is meant by the expression 'good agricultural practice' could easily lead to difficulty in persuading a court or jury that any breach of the terms of the consent was such as to amount to a contravention of section 111 of the 1990 Act.

It may be that for a number of good reasons it is desirable for the industry to comply with the SCIMAC Guidelines: however my concern is with the lawfulness of the activity in which the consent holder and their representatives, Mr. Grant and his farm workers, were engaged on 23 August 2001.

So, the consent and the consent alone defines good agricultural practice. In my view, the evidence of Mr. Grant and his farm manager Mr. Sinclair described their activities on 22 and 23 August 2001 as conforming to their normal drilling procedure. There was no evidence of any failure on their part to comply with the express terms of the consent . I am satisfied beyond a reasonable doubt that the activity being disrupted was conform to what might be termed the express terms of the consent so far as they specified what was meant by the term 'good agricultural practice'.

Section 112(4) and (5) of the 1990 Act imply conditions into every consent to respectively keep and release genetically modified organisms in the United Kingdom. Those implied conditions said by Mr. Hingston to be of relevance in this case are firstly, under section 112(4)(c) that the holder of a consent for keeping genetically modified organisms shall-

and secondly, under section 112 (5)(c) that the holder of a consent for releasing or marketing genetically modified organisms shall-

It was submitted by Mr. Hingston on behalf of his client (and the argument adopted by all of the other accused) that it could be inferred from the evidence led that these implied conditions had been broken. Thus a genetically modified organism had been released other than in conformity with the consent issued by the Scottish Ministers. That was an offence and accordingly the activity in question, namely the sowing of the genetically modified seed, could not have been lawful in terms of section 68 of the 1994 Act. Accordingly one of the essential elements of the charge had not been established.

The consent in question in this case (Crown production 3) was only for the release of genetically modified organisms. In any event, in my view, the terms of the implied condition regarding the keeping of GMOs did not arise in the present case. Accordingly, I have confined myself to the argument regarding the implied condition under section 112(5)(c) in respect of the release of GMOs.

From the evidence, it seemed to me that Mr. Grant had available to him techniques not entailing excessive cost to prevent or minimise the escape of GMOs from the site. However, the condition implied by section 112(5)(c) does not forbid that. What it imposes is an obligation to use the best available techniques to prevent any damage to the environment as a result of the (permitted) release of the GMO.

The expression 'damage to the environment' is defined in section 107(3) of the 1990 Act as follows:

The word 'environment' is defined by section 107(2) as consisting of

'land, air and water or any of those media.'

'Harm' is defined by section 107(6) as meaning:

GMOs present in the environment are defined as being capable of causing harm by section 107(5) if

So, in the present case, in order to establish that the condition implied by section 112(5)(c) had been breached, it would be necessary to show that the escaped GMO, was capable of causing harm, as defined by section 107(6). I heard no direct evidence to that effect in respect of the specific GMO which had been released on the site at Tullich. There had been some general information regarding GMOs in evidence from Mr. Turnbull, when he had given evidence on his own behalf, but nothing had been specifically said by him or elicited from any other witness regarding any assertion that this GMO was capable of causing harm, as defined by section 107(6).

In his submission Mr. Hingston had stated:

Two points arise at this stage: Firstly, in my view it is not incumbent on the Crown, in the discharge of its burden to prove that the activity in which the consent holder was involved on 23 August 2001 was lawful, in terms of section 68 of the 1994 Act, to negative every possible breach of the terms of the consent. If the accused, arising out of the evidence, whether led by the Crown or defence, raise a reasonable doubt in the mind of the court, then they are entitled to acquittal. Such a doubt however, in my view, has to arise from the evidence led or any inferences capable of being drawn from it.

Accordingly, if the accused wish to found on a specific breach of the consent in order either to prove that such a breach occurred or to raise a reasonable doubt as to whether the consent had been complied with, then they would have to point to a chapter of evidence led during the trial to such effect. That is not to say that there is any burden of proof on the accused, but that the basis for any assertion of non-compliance with the consent must be grounded in the evidence.

Secondly, where is the evidence on which the assertion of this GMO's capability to cause harm is founded?

The consent, Crown production number 3, was described in evidence by Derek Bearhop, the leader of the Genetically Modified Co-ordination Team of the Scottish Executive as the full consent to the release of GMO by Aventis, as required by the 1990 Act. Mr. Bearhop was not, as I understood it, led as a skilled or expert witness in the matter of the genetic modification of crops.

While there was evidence from Mr. Bearhop to the effect that Annex 1 to the consent was in fact produced by the consent holders themselves in answer to the 41 numbered queries, nevertheless the whole document represented the consent as issued by him on behalf of the Scottish Ministers.

I am by no means confident that simple perusal of this document would entitle me to draw any inference that the release of this GMO would have caused harm as defined by section 107(6) of the 1990 Act. Much of the document is highly technical and written in scientific language whose meaning is obscure without explanation by its author or a skilled witness.

What it does say, however, at the conclusion to paragraph 18, (page 20), which falls within Part IV providing information relating to the genetically modified plant, dealing with the potential for a transfer of genetic material from the genetically modified plants to other organisms is:

Paragraph 19, also found on page 20, gives information on any toxic or harmful effects on human health and the environment arising from the genetic modification and states:

Reference is then made to the bases for that assertion.

Paragraphs 20 and 21 identify no 'target organisms' and asserts that there will be no interaction with other plants.

Part VIII of Annex 1 to the consent (which starts on page 26 thereof) provides information on the potential environmental impact of the release of the genetically modified plants. I heard no evidence suggesting that any of the matters mentioned therein amounted to 'harm' as defined by section 107(6).

Paragraph 38, found on page 26 deals with the potential environmental impact of the release of the genetically modified plants. There was very little focus on that chapter of the consent during the trial.

In my view, there was not presented to me evidence or a line of questioning of witnesses from which it could be inferred that what took place on 23 August 2001 would inevitably lead to this organism being capable of or actually causing damage to the environment as defined in section 107(3), (5) and (6). Nor was a reasonable doubt on that cast in my mind.

Accordingly, the view which I have reached is that in the absence of credible and reliable evidence or a convincing line of cross examination, I am unable to conclude that this GMO was capable of causing harm as defined in section 107(6). Neither did I hear any credible or reliable evidence or line of cross-examination or submission such as to raise a reasonable doubt in my mind that the condition implied by section 112(5)(c) had been breached.

In all the circumstances therefore, I am satisfied that the activity at Tullich Farm on 23 August 2001 which the accused each intended to disrupt and obstruct was lawful.

In my view therefore all of the essential elements in the charge have been proved beyond reasonable doubt. Accordingly each accused is guilty as libelled.

ALASDAIR LORNE MACFADYEN

Sheriff of Grampian Highland and Islands at Dingwall