Clement, R (on the application of) v Durham County Magistrates' Court

Judgment

1. MR JUSTICE SILBER: Alan Hall Clement appeals by way of case stated from 14 convictions which were recorded against him by the Justices for the County of Durham sitting at Bishop Auckland on 17 and 20 May 2002. Each of these convictions relates to breaches of the Pigs (Records, Identification and Movement) Order 1995, ("the Order"), and of section 72(a) of the Animal Health Act 1981. The first six summonses relate to movements of pork pigs from West Craig Lea Piggery to the premises of George Thompson and Son, who conduct an abattoir. Of those first six summonses, the first three allege that the appellant was the owner of the pigs, while the second three summonses relate to the same incident, but they allege that the appellant was in charge of the pigs. The remaining eight summonses relate to alleged failures by the appellant to retain and to produce records of movements of pigs when requested to do so by Mr Craig Hudson, an inspector under the Animal Health Act. Of those eight summonses, four contend that the appellant was the owner of the pigs and the last six relate to the same incidents, but they contend they that he was in charge of them.

2. In their case stated, the magistrates found that the appellant lived at West Craig Lea, Roddymoor, Crook and that Mr Hudson was an inspector who had the authority to demand the records concerning the movement of pigs as well as the fact that Thompson's abattoir had a record which indicated that pigs had been received on several occasions from a Mr A Clement from West Craig Lea in Roddymoor. The magistrates found that the original Schedule 5 documents were in a damaged condition and that those which were produced were signed by Mr A Clement indicating an address as West Craig Lea, Roddymoor.

3. Before turning to the questions for the opinion of this court, it is necessary to point out that the Order is a complicated Order and so I have great sympathy with the magistrates when considering the task that confronted them when dealing with this case. They produced a case stated which is comprehensive and clear, and for that, I am grateful.

4. The first question which is raised on the case stated is:

"Whether the justices were entitled to conclude for the purposes of convicting Mr Clement that in their opinion the making and maintaining of a record in the form set out in Schedule 5 of the Order does satisfy the requirement to make and maintain a record in the form set out in Schedule 1 of the said Order."

5. It is now necessary to explain the difference between the forms required in Schedule 5 and Schedule 1. Those set out in Schedule 1 owe their origins to Article 4 of the Order which provides, insofar as is material to this application, that:

"4(1) The owner or person in charge of a pig on a holding shall make and maintain a record—

(a) in the form set out in Schedule 1 to this Order in respect of each movement of pigs to or from the holding . . .

(3) every record under this article shall—

(a) be made within 36 hours after the movement or sale recorded; and

(b) be retained by the owner or person in charge of the pig or the holding for a period of three years from the end of the year in which the last entry was made."

6. The requirements under Schedule 5 have their origins in to Article 10 of the Order which provides that:

"(2) It shall be the duty of the owner of a pig who intends to move it from such premises to make a declaration in the form set out in Schedule 5 to this Order which declaration shall authorise movement—

(a) direct to a slaughterhouse specified in the declaration; or

(b) between premises in the same occupation;

And to no other destination."

7. Mr MacFaul, for the appellant, contends that all the information which is required in Schedule 1 is also set out in Schedule 5. He explains that in Schedule 1, there are five heads of information which are required apart from the name and address of the person keeping the record; they are: the date of the movement, the identification mark, the number of pigs, the premises from which they are moved and the premises to which they are moved. Schedule 5 contains each of those particular heads, as well as additional information, such as the description of the pigs to be moved. Mr MacFaul points out that in Article 15(9) of the Order, it is said that:

"Where this Order refers to a form which appears in a Schedule to this Order, that reference should be taken to include a form substantially to the like effect."

8. It is also pointed out that there is no set official form under Schedule 1 or Schedule 5 and that it is significant that Article 4(5) of the Order says that records can be kept electronically. Thus his submission is that if a party has the information in Schedule 5(4), that will necessarily and automatically satisfy the requirements of Schedule 1. He relies on the evidence of Mr Hudson, the Trading Standards Officer of Durham Council, who said that Schedule 5 forms are substantially the same as Schedule 1 forms. Whether they fulfil the same purpose is a question for me as a matter of law and not for expert evidence.

9. Mr Baker, for the respondents, points out that there is a substantial difference between Schedule 5 and the Schedule 1 form because the Schedule 5 form gives notice of an intention to move "within the next 7 days". Schedule 5, like Article 10, deals with pigs from premises where waste food is kept. In addition, he says that the Schedule 1 form, unlike the Schedule 5 form, shows what has actually happened after the movement has taken place. To my mind, there is a substantial difference between information about what a party intends to do and what actually happens. There must be many cases in which it is intended to move pigs, but they are not actually moved. Thus, I do not consider that by maintaining a Schedule 5 record, a party satisfies the requirements to provide a Schedule 1 Order. Article 15(9) of the Order does not assist the appellant because the information in the two forms is not "substantially to the like effect", for the reasons that I have outlined.

10. Indeed, I consider that Article 15(9) just deals with the form in which the information is kept, but is not of any relevance where the information that is being provided fulfils, as it does here, different purposes. It therefore follows that I consider that the making and maintaining of a record set out in Schedule 5 does not satisfy the requirement to make and maintain a record in the form set out in Schedule 1 to the Order.

11. Question B for this court was:

"Whether the justices were entitled to conclude for the purposes of convicting Mr Clement that they could rely upon a defence submission on the relationship between a Schedule 1 and a Schedule 5 form as a fact to support a conclusion that Mr Clement was the owner or person in charge of a pig on a holding on or around the relevant dates."

12. In essence, the approach of the justices appears to have been that if a submission is made by one party, that contains in it an inherent admission that the factual basis upon which it is made is correct. I agree with counsel for the appellant that a legal submission made by counsel is not, in ordinary circumstances, to be construed as an admission of any facts. Counsel frequently make submissions on alternative bases, and when they do so, they are not accepting the factual basis for that alternative submission.

13. Thus, I consider that the justices were not entitled to conclude for the purposes of convicting Mr Clement that they could rely on a defence submission on the relationship between Schedule 1 and Schedule 5(4) as being a fact which supports a conclusion that Mr Clement was the owner or the person in charge of any relevant pig on the holding on or around the relevant dates.

14. I now turn to question C, which was whether the justices were entitled to rely on the documents produced by the witness, Pamela Staples, to find as a fact that they bore the signature of Mr Clement and that he had made endorsements onto the form. The finding of the magistrates was:

"We are satisfied that it is A Clement's signature on the Schedule 5 forms in evidence and that he has marked the box as owner and that this proves that he was the owner or person in charge of pigs on a holding."

15. Miss Staples' evidence does not prove that Mr Clement either signed or endorsed the form. She told the magistrates, according to their notes, that she cannot personally say that he himself brought in the animals on the alleged dates. She accepts the person who did may have been Mr Clement or his son, but there is no evidence that she saw Mr Clement signing the document or that she could recognise either his signature on the document or the endorsements on it. Thus I answer question C in the negative.

16. It is now appropriate to deal with question E, which is:

"Whether the magistrates were correct in law to assert that the 'Prosecution must prove that there is a prima facie evidence. Burden then reverts to the defence'."

17. Although the magistrates concluded at paragraph 20 of the case stated, "We are therefore satisfied beyond reasonable doubt that the case is proved", this statement has to be read in the light, not only of the question which has been raised, but also in the light of what was said in their reasons for their decision. They form appendix 2 to the case stated, where it is said:

"We recognise that it is for the prosecution to prove the case as we are sure of the defendant's guilt, ie beyond reasonable doubt. The prosecution must prove there is prima facie evidence (of ownership/being in charge of pigs). The burden then reverts to the defence (on a balance of probabilities -- to prove lawful authority or excuse).

18. The approach of the magistrates is at total variance with the established basic principle that it is for the prosecution to prove each element of the case beyond reasonable doubt, save for any specific matter in which the onus falls on the defence. The only such matter evident in this case is under article 16 of the Order of Notice, it is provided that: "any person who, without lawful authority or excuse, proof of which shall lie on him, then fails to comply with [various obligations] . . . commits an offence." Apart from that provision, the onus remains upon the prosecution, thus it was incorrect for the magistrates to have said: "the prosecution must prove that there is a prima facie evidence".

19. Another reason why I consider that the magistrates were incorrect is in the second part of Question E where they state: "burden then reverts to the defence". The use of the word 'reverts' indicates a movement back of the burden to the defendant. This is incorrect because the only aspect in respect of which the burden is on the defendant is that set out in Article 16 of the Order, to which I have already referred.

20. Thus, I conclude that the magistrates were not correct in law to assert that the prosecution must prove that there is prima facie evidence; burden then reverts to the defence. In the light of that finding, it is unnecessary to consider the further questions which are raised concerning the findings at which the magistrates arrived. It is clear that in the light of my answer to Question E, these convictions have to be quashed. I also suspect that it is quite possible that the other findings which form the basis of other questions for this court had been considered by the magistrates on an erroneous basis because of their flawed approach to the burden of proof. Therefore, subject to the views of counsel, I propose to order that the appeal should be allowed and the convictions quashed.

21. MR MACFAUL: My Lord, I am obliged. I have no observations on the ruling.

22. MR JUSTICE SILBER: It is a matter for the prosecution whether they wish to pursue this prosecution.

23. MR BAKER: We will consider our position, my Lord.

24. MR JUSTICE SILBER: Certainly the only orders I am proposing to make is that the appeal is allowed and that the conviction is quashed.

25. MR MACFAUL: I am obliged. On the administrative side of things there have been some questions about funding. I would apply therefore for the defendant's costs order just to cover the possibility --

26. MR JUSTICE SILBER: That is out of central funds, is it not?

27. MR MACFAUL: Yes.

28. MR JUSTICE SILBER: I make that order. Thank you for a very informative morning.