North Yorkshire Trading Standards Regulatory Services, R (on the application of) v Nicholson

Monday, 31st March 2003

1. MR JUSTICE GOLDRING: This is a case stated from the Justices of the Petty Sessional Division of Selby in North Yorkshire. On 30th July 2002, they dismissed on the basis of no case to answer an information preferred by the Appellant Trading Standards Authority against the respondent farmer. He is not present or represented today. A skeleton argument has been submitted on his behalf. I have read and considered it.

2. The appellant faced five similar summonses under article 5(1) of the Animal By-Products Order 1999, as amended. They were in these terms:

"... 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".

3. The appellant now appeals in respect of three of the summonses (3, 5 and 7).

4. The Animal By-Products Order 1999 is made under the Animal Health Act 1981. Article 5(1) of the order provides as follows:

"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 ..."

5. There are then set out various means of so doing, including rendering, incineration and burning. It is not necessary to go into further detail.

6. There is in this case no dispute but that a sheep carcase amounted to animal by-product. The two issues raised by this appeal are: first, the meaning of "possession" or "control"; second, the meaning of "without any undue delay".

7. The Animal By-Products Order 1999 is made, as I have said, under the Animal Health Act 1981. Section 73(b) of that Act provides:

"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 ..."

8. The context of this case was the foot and mouth epidemic. The Justices found the following facts:

"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".

9. The Justices then set out the contentions of each side. As to the appellant:

"(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".

10. It was contended by the respondent, at the close of the case for the appellant:

"(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".

11. The justices stated that they were of the opinion:

"(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".

12. The questions posed are these:

"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?"

13. Mr Goodman on behalf of the appellants has submitted in his skeleton argument that the Justices erred in this case. I agree.

14. For a case to answer in respect of any individual summons, the prosecution was required to present sufficient evidence of the following:

15. 1. That the sheep carcase amounted to an animal by-product. That was agreed.

16. 2. That the carcase was in the possession or control of the respondent. It was. It was admittedly on his land. In my view, it is not necessary for the prosecution to prove that the owner of the land knew the carcase was there. Analogies drawn in the skeleton argument of the respondent as to possession of drugs are not in my view appropriate.

17. 3. There must be evidence of undue delay in consigning or disposing of the carcase. Whether in any case any delay in doing so is undue is a question of fact. (See the judgment of Poole J in the case of John Joseph Richards of the Northumberland County Council Trading Standards Department v George Foster Stephenson, CO/4114/97.)

18. Here, the prosecution relied upon the fact that the carcases on the evidence had been present for some two to three days. They based that submission upon photographs, which the prosecution submitted in effect spoke for themselves. They revealed partly decomposed carcases.

19. In his skeleton, the respondent submits that the use of the photographs to assess the age of carcases was "refused" and the use of the photographs was therefore limited to assessing the type of terrain in which the carcases were found.

20. Mr Goodman, making such enquiries as he has been able and having spoken to counsel who appeared in the case for the appellant, has indicated to me that that is a misconception. That would appear to be borne out by the approach of the Justices when they stated their case, for as I have indicated, among their findings they refer in paragraph 6(3) to the photographs in terms of them proving what the appellant suggests.

21. Indeed, had the photographs been approached in the way suggested in the respondent's skeleton argument, there would, as Mr Goodman has indicated, have been no case at all. I therefore approach the case upon the basis that the photographs were part of the evidence, as Mr Goodman submits. That means that there was evidence as to the carcases being two to three days old.

22. The Justices have referred to the DEFRA guidelines. It may be they have to some extent misunderstood them. I do not think it necessary for present purposes to go through the detail of those guidelines. However, if it was thought that paragraph 5 of the guidelines, headed "Keep Unnecessary Vehicles Away", in effect meant that it was not necessary for the land owner to inspect his stock to see whether it was suffering from foot and mouth disease, that was a misconception.

23. In my view, all the Justices had to do was ask themselves whether the presence on the respondent's land of a sheep carcase two to three days old was, in all the circumstances, capable of amounting to evidence of an undue delay in consigning or disposing of it. In my view, it plainly was. It is unnecessary to go into authorities on the topic of cases to answer.

24. I, of course, should make this clear. A finding of a case to answer is not a finding of guilt. In the event of a resumption of this prosecution or those charges to which this case stated applies, it will be open to the respondent to advance any matters he wishes to on the issues raised.

25. Returning to the questions posed by the Magistrates, my answers are as follows:

(i) It is only necessary for the prosecution to prove presence of the carcases on the defendant's land.

(ii) No.

(iii) Yes.

A reasonable Bench could not have decided on the present facts there was no case to answer.

26. MR GOODMAN: My Lord, will your Lordship make an order remitting the case to the Selby Justices to hear and determine it according to the evidence?

27. MR JUSTICE GOLDRING: I shall. It is, of course, only in relation to those three charges to which the photographs related.

28. MR GOODMAN: Indeed.

29. My Lord, may I also ask your Lordship to set aside the defendant's cost order that was made by the Magistrates in favour of the respondent?

30. MR JUSTICE GOLDRING: Yes.

31. MR GOODMAN: The costs will therefore be open in respect of the entirety of that trial.

32. So far as the appeal is concerned, my application is for the costs of today to be borne by the respondent in favour of the appellant, and I have a costs schedule to hand up to you.

33. My Lord, as your Lordship will be aware, under section 17(2) of the Prosecution of Offences Act 1985, a costs order cannot be made out of central funds in favour of a public authority, and therefore costs can only lie directly against the respondent.

34. MR JUSTICE GOLDRING: Yes.

35. MR GOODMAN: My Lord, the power in respect of this court is under section 28(a) of the Supreme Court Act 1981. Your Lordship may wish to have in mind the letter that was put in by the other side, but having said that, I am instructed to advise your Lordship that those that I represent, the Trading Standards and Regulatory Services Department of North Yorkshire, do not enjoy the same funding status at the Crown Prosecution Service, nor can it access central funds. It therefore follows that every pound spent on the investigation or prosecution of cases is a pound less that the Department has able to provide services for the rate payers, charge payers or residents of North Yorkshire.

36. MR JUSTICE GOLDRING: Yes. I understand that, Mr Goodman.

37. Did the respondent have counsel in the Magistrates?

38. MR GOODMAN: Yes. The same counsel that --

39. MR JUSTICE GOLDRING: Drafted the --

40. MR GOODMAN: Indeed, my Lord.

41. MR JUSTICE GOLDRING: No doubt made the submissions?

42. MR GOODMAN: Yes.

43. MR JUSTICE GOLDRING: It seems to me that you are entitled to some costs. I do, however, bear in mind what is said in the skeleton argument and, in the circumstances, taking a broad view, I will order that he pays £2,000 costs of this appeal.

44. MR GOODMAN: Thank you, my Lord.

45. MR JUSTICE GOLDRING: Thank you for your help, Mr Goodman.