Banks & Anor v Secretary Of State For Environment, Food & Rural Affairs

The Claimants own and run three farms in Kent: Westwood Farm, which is also their home, Forstall Farm, and Flintstones Farm. On 13^th September 2002 when a notice was first served under the Principal Regulations they had a beef herd of some 247 cattle at Flintstones Farm. Their herd had been built up over a period of 24 years and was based upon a breeding herd of 150 cows / replacement heifers.

The original notice and the replacement MRN related to the herd at Flintstones Farm. In practical terms, for as long as the notices remained in force the entire herd was prevented from entering the human food chain, thereby negating its value as a beef herd. The notices have severely disrupted the Claimants’ farming activities and caused them substantial financial loss.

The MRN was revoked on the 29^th August 2003, after the Claimants had made their application for permission to apply for Judicial Review. During the course of the hearing, Miss Demetriou explained on behalf of the Defendant that the revocation was not a response to the proceedings, and did not represent any change of mind on the part of the Defendant. The Defendant had merely devised a different means of preventing the herd from entering the human food chain; by stamping the cattle’s passports:

“Not for human consumption. Animal exposed to mammalian protein.”

The Claimants contend that there was no legal basis for placing such a stamp upon the herd’s cattle passports. They do not challenge the decision to serve the original notice on 13^th September 2002, but they do contend that the replacement MRN should have been revoked long before the 29^th August 2003, and in any event by the time when the matter was being reconsidered in detail in March 2003.

The letter dated 28^th March 2003 began with an explanation of the policy background underlying the service of the MRN:

“I would like to start by emphasising the considerable importance of the BSE-related feed ban. This is the primary means of bringing the disease under control, since exposure of cattle to mammalian protein has long been recognised as the main vector for the spread of BSE. Controlling the epidemic, which has had a devastating impact on the livestock industry and caused a harrowing fatal disease for humans, remains a top priority for the Government. Indeed, Ministers have recently stressed that:

‘It is vitally important for public confidence and the continued decline of the BSE epidemic that the feed ban should remain the subject of rigorous enforcement. The Government will not hesitate to take tough action, based on the evidence, to protect human and animal health.’ ”

The Principal Regulations make provision for a wide range of measures to protect human and animal health against the threat posed by Transmissible Spongiform Encephalopathies (“TSEs”), including vigorous enforcement of the feed ban.

Any person who feeds cattle with a feeding-stuff in which he knows or has reason to suspect that any mammalian protein has been incorporated commits a criminal offence: see regulations 11 and 99.

The Principal Regulations give inspectors (as defined by regulation 3) various powers to (inter alia) make enquiries, carry out investigations, conduct searches, and serve notices restricting or prohibiting the movement of any “TSE susceptible animal” (defined by regulation 3 as any animal capable of being affected by a TSE) for the purpose of enforcing the regulations: see regulations 28, 79 and 80.

These powers were strengthened and supplemented by the Amendment Regulations as from the 11^th December 2002. The Amendment Regulations explicitly adopted a precautionary approach. Thus, regulation 29A, inserted into the Principal Regulations by regulation 2 provides:

“29A. – (1) Where an inspector is satisfied he has reasonable grounds for supposing that any TSE susceptible animal has been fed mammalian meat and bone meal or mammalian protein or has had access to mammalian meat and bone meal or mammalian protein which is prohibited to be fed to it under these Regulations, he shall by notice in writing served on the owner or person in charge of the animal prohibit or restrict the movement of the animal from the premises described in the notice.”

There is no right of appeal against a MRN, but paragraph (2) of regulation 29A provides that:

“The notice may be subject to conditions and may be amended, suspended or revoked by further notice at any time.”

It will be noted that the test is not whether the inspector has reasonable grounds for supposing, but whether he is satisfied that he has such grounds. If he is so satisfied he must serve a MRN. Given this subjective element, the grounds upon which the Court can review an inspector’s decision to serve a MRN are limited to those available in a conventional Wednesbury challenge. It is not for the Court to substitute its own view of whether there were “reasonable grounds for supposing…”

Although the statutory test is supposition, the parties are agreed that there is no difference, for practical purposes, between reasonable grounds for supposing, believing, thinking, or suspecting that a particular state of affairs exists. On behalf of the Defendant, Miss Demetriou accepted that the existence of the power in paragraph (2) to amend, suspend or revoke a notice meant that the Defendant was under an obligation to keep the justification for a MRN under review. Since it is an inspector who has to be satisfied of the circumstances justifying the service of a MRN, it is common ground that the power to serve a further notice amending, suspending or revoking the original notice must also be exercised by an inspector.

In their Claim Form the Claimants contended that the maintenance of the MRN infringed their rights to peaceful enjoyment of their property and possessions under Article 1 of the First Protocol to the European Convention on Human Rights. This was not developed as an independent ground of challenge by Miss Gough in her submissions on behalf of the Claimants, but it is an important part of the background to the Defendant’s exercise of her powers under the Principal Regulations.

The power conferred by regulation 29A is fairly described as draconian: a large beef herd built up over many years has been effectively condemned upon the basis of no more than an inspector’s suspicion that they have been fed prohibited material. However, there is no dispute that such a draconian power is in principle, provided that it is fairly exercised, a proportionate response to the very grave threat posed by BSE to livestock, and indirectly to humans.

In the absence of any right of appeal, the power conferred by regulation 29A might well have been a disproportionate interference with an owner’s rights if the Defendant had been under no obligation to keep the need for a MRN, served upon the basis of an initial suspicion, under review in the light of new information. The regulation enables a fair balance to be maintained because the owner is always able to put forward a case that the notice should be amended, suspended or revoked.

When Parliament confers a power upon a public official it does so upon the premise that the power will be exercised fairly and reasonably. What fairness requires will depend upon the circumstances of the particular case. By way of example, the Principal Regulations do not require an inspector to give any reasons for serving a MRN. The lack of a formal procedural requirement to this effect is readily understandable: there may be a need for immediate action, and an inspector’s workload may be very considerable at times of crisis, e.g. during an epidemic.

But this does not mean that an inspector who has served a MRN can simply refuse to give the owner of the livestock any explanation as to what his “reasonable grounds” were, once he is in a position to do so. If the owner is not told why the MRN has been served, his ability to make meaningful representations as to why the notice should be amended, suspended or revoked will be greatly impeded. He will not be able to ascertain whether the inspector was satisfied upon the basis of accurate and relevant information, or whether service of the MRN was within the powers conferred by regulation 29A.

The Defendant accepts that procedural fairness required her to provide the Claimants with an explanation of the decision to maintain the MRN. In her skeleton argument Miss Demetriou acknowledged that procedural fairness required a public body “to give a person sufficient information concerning the case against him to enable him to make proper representations”. In response to the Claimants’ complaint that they and the Court were not given “full frank and fair disclosure” the Defendant contended that:

“it has from the outset scrupulously explained the basis and reasons for its decision to the Claimants, shared the evidence on which it was basing its decision, and responded fully to the many questions concerning its decision that have been raised by the Claimants…The Defendant has acted assiduously in explaining its decision and in submitting to the Court all information relevant to its decision.”

It is necessary to examine in some detail the events at Flintstones Farm and the subsequent correspondence and discussions between the parties to see whether that response of the Defendant is a fair description of Defra’s conduct towards the Claimants.

At about 07:15 on the 13^th September 2002 four Trading Standards Officers (TSOs) employed by Kent County Council (the Council) visited Flintstones Farm. No contemporaneous record of the visit has been produced. What happened next is described in their Witness Statements dated, for the most part, 7^th March 2003 (a Supplementary Statement is dated 9^th May 2003). The Claimants were not there, they were at Westwood Farm. Their stockman, Mr. Hawkins, who lived at Flintstones Farm, was present. The TSOs told Mr. Hawkins that they were at the premises to inspect the feedstuffs that were fed to the cattle. They asked Mr. Hawkins to show them where the feedstuffs were stored, and he took them to an open barn.

Inside the barn there were boxes of muesli, breakfast cereals and lasagne. Behind the boxes were six bulk bags labelled “peanuts”. In their statements the TSOs said that there were five large (approx. 1 tonne) bags and one half-empty bag. The bags contained pellets. Mr. Harty, the Principal TSO scooped some of the pellets from the top of one of the bags and asked Mr. Hawkins what they were. He replied “maize pellets”. Mr. Harty remarked that they looked like cat food, and the TSOs said that they would take samples from the bulk bags. At the TSOs request Mr. Hawkins in due course used a forklift truck to move some of the boxes, so as to make access and sampling easier.

When Mr. Hawkins had moved the bags he started to tell one of the TSOs, Mr. Kempster “that the haulier who brought the bulk bags usually brought peanut waste and that the bags present had been brought by mistake and that he would be the one in trouble.” Mr. Kempster said that he would have to caution Mr. Hawkins. He did so, and Mr. Hawkins then said that he did not want to say anything until he had received legal advice.

Most of the herd was in the fields, some distance from the complex of farm buildings containing the feed barn. A number of the buildings were empty, but there were some cattle in a cattle shed to the west of the feed barn. They included two bulls, which were in a pen to which a feeding trough was attached. At an early stage in their visit the TSOs noticed that the trough contained strands of hay and “a few small cereal pellets”. At 07:55 Mr. Harty, using a trowel removed all of the pellets that he could see, together with most of the “hay-like material” and placed all of this material in a jar. In his Supplementary Statement dated 9^th May 2003 Mr. Harty says that:

“The pellets in the trough were the same as those pellets contained in the five full and one half empty bag.”

Having taken the sample from the trough the TSOs then took two samples of faeces from different fresh deposits within the pen containing the two bulls. Each deposit was lifted out of the pen and the samples were placed in jars. Once Mr. Hawkins had cleared a passageway to the six bags of “peanuts” in the feed store, samples were taken of the pellets in each of the five large bags, both from the top of the bags and from positions lower down each bag. Mr. Harty initially described the pellets in the five bags as “spherical brown pellets”, and the pellets in the sixth bag as “elliptical shaped brown cereal pellets”. In his later Witness Statement he described the former pellets as “a mixture of pellets of three different shades of brown: some pellets were light brown (oatmeal in colour) some pinkish brown and some dark brown. Some were more oval than spherical…The other pellets which I described as “elliptical shaped brown cereal pellets” were different.” A sample was also taken of the elliptical shaped brown pellets in the sixth bag.

A little after 09:15 two other Council Officers, Mr. Rolfe and Ms. Langley arrived, together with a TSO from West Berkshire. Mr. Rolfe had been engaged in a parallel search operation at Westwood Farm. At about 09:30 Mr. Dunn, a Defra Veterinary Inspector arrived at Flintstones Farm. By this time, the TSOs had taken the sample from the trough and the two faecal samples and were engaged in taking samples from the six bags. Mr. Kempster’s Witness Statement says:

“At approximately 9:30am the DEFRA vet Mr Peter Dunn arrived at the premise. I briefed Mr Dunn as to the findings made by officers at the premise. He advised Mr Hawkins that in the light of what had been said he would check the stock present at the farm, and issue a notice to him under the T.S.E. Regulations preventing the animals being moved. Mr Hawkins confirmed to Mr Dunn that he understood what had been said. The vet then went to inspect the animals…At 9:40am Mr Dunn…and I walked to his car, and Mr Hawkins remained in the farmyard. We discussed the issue of the Feeding Stuffs present at the farm and Mr Dunn indicated that he would be restricting the movement of this product as well as the animals. At approximately 10:00am Mr Dunn…served Mr Hawkins with the restriction notices concerned. ”

The MRN was to remain in force for 28 days, unless renewed by a subsequent notice. Having explained the effect of the MRN to Mr. Hawkins, Mr. Dunn left the premises.

Mr. Hawkins had not been present when the sample from the trough had been taken. Towards the end of the visit Mr. Harty explained what had been found and showed Mr. Hawkins the bottles containing the dung and trough samples. He explained how he had sampled the feeding stuffs in the six bags, and offered Mr. Hawkins the opportunity to randomly select one portion of those samples. Mr. Hawkins was shown the jar containing the sample obtained from the trough. He asked for a part of the sample and was told that there was insufficient material for him to be provided with one. Mr. Hawkins said that the feed could have got into the trough on the forks of a forklift truck driven by a student, He was asked if there was anything else he wished to say and replied “No”. The TSOs left Flintstones Farm at about 10:25. One of the TSOs, Mr. Fridd had been given the task of obtaining a photographic record of the evidence obtained on the visit. Photographs were taken of the six bags, the material in the trough, the pellets in the bags, and some of the sampling activities.

Pausing there, Mr. Dunn had been at Flintstones Farm for something over half an hour: from 09:30 until some time after service of the MRN at approximately 10:00. On arrival he was briefed by Mr. Kempster. In the light of what was said he told Mr. Hawkins that a MRN would be served. He then inspected the animals, and returned to his car some ten minutes after having arrived, for a further discussion with Mr. Kempster. It is somewhat surprising that there is no contemporaneous, or indeed any written record of what Mr. Dunn was told by Mr. Kempster and / or what he discovered in his brief inspection. It is somewhat surprising because the power to serve a MRN is conferred by regulation 29A upon an inspector. He, rather than another (and perhaps more senior) official within Defra, has to be satisfied that he has “reasonable grounds for supposing…”

The Defendant’s evidence in response to the claim for Judicial Review was principally contained in a Witness Statement from Mr. Smith, a Higher Executive Officer based at Defra’s headquarters in London. The responsibilities of his unit include the policy on BSE-related feed controls. There was, in addition a Witness Statement from Mr. Reaney, who is responsible for managing the feed analysis section within the Veterinary Laboratories Agency. There was, however, no Witness Statement from Mr. Dunn. Miss Demetriou sought to explain this by pointing out (correctly) that the principal thrust of the evidence adduced on behalf of the Claimants in these proceedings had been an attack upon the validity of the procedures adopted by the TSOs to gather the trough and dung samples, and the procedures adopted by Mr. Reaney to analyse them, and hence upon the reliability of the results of Mr. Reaney’s analysis. While that provides some justification for the Defendant’s approach, the Claimants were also complaining, and complaining forcefully, that there had been a lack of any disclosure to them, and to the Court. The Defendant was asserting that it had submitted to the Court “all information relevant to its decision”.

The hearing opened on 10^th February 2004 and was adjourned until 18^th February to enable me to read the extensive documentation. In Preliminary Observations sent to the parties on 12^th February I expressed concern that there was no evidence from Mr. Dunn. In response, Mr. Dunn provided a brief Witness Statement dated 18^th February 2004 which merely confirmed that he had been the Inspector who had authorised the imposition of the MRN on 13^th September 2002 and its renewal (see para. 30 below), confirmed that Mr. Smith’s first and draft second statements had “set out in full the background and reasons for the decision to impose the initial MRN in this case and the subsequent revocation of the same…”, and concluded by saying that he had “nothing further to add”.

Mr Smith’s second Witness Statement, dated 17^th February 2004, was filed in response to my request that he should explain his role in the decision making process. The 28-day MRN served on the 13^th September had been renewed by Mr. Dunn on the 3^rd and 28^th October 2002. On the 7^th January 2003 it was replaced by a notice served by Mr. Dunn under section 29A of the Amended Regulations, which had come into force the previous month. The letter dated 28^th March 2003 explained why that notice was being maintained in force. Thereafter the MRN continued in force until it was revoked on 29^th August 2003.

In his second Witness Statement Mr. Smith explained that his

“policy role in these events was to assess the evidence which Mr Dunn took into account when establishing whether there were reasonable grounds to suppose exposure of the Claimants’ cattle to prohibited proteins, and his subsequent serving of the MRN upon the Claimants. This assessment was needed to provide a ‘back-up’ check that the enforcement action taken by Mr Dunn reflected the legislative powers. My assessment took into account Mr Dunn’s reports on the situation at Flintstones Farm as well as obtaining the advice of the relevant Defra lawyer on the legal issues and the powers referred to in the MRN; obtaining the input of the Veterinary Adviser on the animal health implications and considering how the laboratory analysis of the samples underpinned the action taken.”

I was told by Miss Demetriou that the Defendant had made full disclosure: Mr. Dunn did not make any note of what he was told by Mr. Kempster. He did not provide the Defendant with any written report or minute explaining the basis upon which he had been satisfied on 13^th September 2002, or on any of the other dates when the notice was reviewed, replaced, and eventually revoked. The reference in Mr. Smith’s Second Witness Statement to “Mr. Dunn’s reports on the situation at Flintstones Farm” is, in fact, a reference to telephone conversations between himself and Mr. Dunn, and an e-mail dated the 21^st November 2002. It would appear that no note was made of those telephone conversations. In the e-mail Mr. Dunn supplied Mr. Smith with information to enable him to reply to a letter from the Claimants. The information included the following:

“No one is suggesting that animals entered the Building described as ‘Hay and Straw Store’ rather the reverse that food was taken to animals from this store.”

“I was not present when the pet-food was sampled from the troughs. [TSOs] did this before my arrival. I was shown small traces of food, resembling the pet-food in the troughs marked ‘X’ in Mr. Banks plan.”

“The Trading Standards officers have a more accurate picture of the storage conditions of the feedstuffs as they raided one and a half hours before I arrived.”

“It must be noted, however, that one large sack labelled ‘peanuts’ contained the suspect pet-food.”

It is, to say the least, most unfortunate that Mr. Dunn did not make a note of what he was told, and what he saw on the 13^th September 2002. We have to infer what he was, or may, have been told by the TSOs and hence what he told Mr. Smith from the contents of the TSOs’ Witness Statements dated some six or eight months later, the e-mail (above), and the terms of the letter dated 28^th March 2003. The letter, which was sent by Mr. Filley, the former head of Mr. Smith’s unit, purported to “make clear what evidence we have collected” and set out what had been established by “investigations by Local Authority Trading Standards Officers and by Defra Veterinary Officers”.

With the exception of Mr. Reaney’s analysis of the samples no documents were disclosed by the Defendant relating to those investigations. Miss Demetriou confirmed that there had been full disclosure: apart from testing the samples collected by the TSOs, the Defendant had not undertaken any further investigations, and had not received any further information from the Council beyond that conveyed to Mr. Dunn on 13^th September 2002. The case against the Claimants set out in the letter dated 28^th March 2003 was therefore based upon Mr. Filley’s understanding of:

On 31^st October 2002 the First Claimant wrote to the Chief Veterinary Officer complaining that he had not been told what case he had to answer:

“Peter Dunn from the Reigate office recommended that I write to you concerning some urgent answers that I need to some very pressing questions with regard to the above.

It has been some seven weeks since your dept. took samples of food and faeces from my holding and you still have not given any indication of what case, if any, that I have to answer to.

It is not satisfactory that you come along and accuse me of malpractices and place a movement restriction on my animals and feed stuffs without any evidence that my animals have been fed or been in contact with mammalian products, which seems to be your main concern.”

The letter asked a number of practical questions about what arrangements the Claimants could make for their herd which was by then inside for the winter. The final question was:

“Can I still feed the 15 cats and 3 dogs with the dry pet food from the bags from which you took samples which you have deemed to be the high risk material?”

The First Claimant’s practical questions were answered in a letter dated 15^th November 2002 from Mr. Scudamore, the Chief Veterinary Officer. The answer to the final question was that the pet food could be fed to domestic animals, but “you must ensure that the pet food is kept separate from food intended for…livestock and that there is no risk of cross-contamination.” Mr. Scudamore’s letter explained the case against the Claimants in these terms:

“there is reason to believe that cattle on your holding have been exposed to pet food containing mammalian protein in contravention of Part III of the TSE Regulations”.

No further particulars were provided.

On the 19^th November 2002 the First Claimant wrote to Mr. Filley.

“With reference to our telephone conversation yesterday, you advised me to put in writing the important circumstances that I felt you seemed to be unaware of in connection with the case you are investigating at Flintstones. I understand that the only information you have is from Peter Dunn’s report and as I have not had sight of this I can only assume that it does not contain relevant and important facts regarding the position.”

A plan was attached to the letter showing the relationship of the farm buildings to the grazing land. The letter stated that with the exception of 26 animals housed in two sheds all of the herd were out grazing on 13^th September, and had been out since the end of May. The letter continued (in part):

“The 5 sealed bags of pet food in question, came onto the holding approx. 1 week before the 13^th Sept., together with 10 bags of peanuts and seeds. This was then blocked in by a further 10 pallets of cardboard boxes containing confectionery and muesli. This would have made it impossible for the animals to have had access to the pet food.

You can see from the plan how close in proximity the pets feeding area is to where the 2 biscuits were allegedly found (red X marks spot). I say allegedly because no one witnessed their findings. Mr Dunn, Mr Rolfe nor my stockman, Mr Hawkins were invited to witness this evidence, so, therefore, it can only be alleged. To be 100% certain that no cross contamination occurs, which is obviously what you are demanding, then all pets would have to be banned on all livestock farms together with all vermin, foxes and birds which all scavenge for food. This is virtually impossible to enforce.”

“On Friday 15^th I spoke to Mr Dunn by telephone when he indicated that he had the results of the tests carried out on the pet food and dung samples but was unwilling to disclose them, but he intimated to me that the pet food samples had tested positive and all the dung samples were negative, which is what I expected knowing that we have never fed pet food to our stock. I request a copy of these results to confirm if this is so.

In addition to the visit to Flintstones on 13.9.02, simultaneous visits were carried out at Westwood Farm, Petersview Piggery and Forstal Farm, which are all in my ownership. These 3 sites were found to be clear from pet food. If I had been feeding my animals pet food wouldn’t there have been evidence at these other holdings and dung samples taken for testing.”

It will be recalled that a MRN must be served if an inspector is satisfied that he has reasonable grounds for supposing that livestock has been fed, or has had access to, mammalian meat and bone meal or mammalian protein. In this letter the First Claimant was attempting to explain why his herd had not had access to prohibited material. He had asked for the results of the tests carried out by Mr. Reaney, which had been available to the Defendant from 2^nd October, but Mr. Dunn was not willing to disclose them. As a result of his conversation with Mr. Dunn, the First Claimant understood that the pet food samples had tested positive, and the dung samples were negative.

Mr. Smith asked Mr. Dunn for his response to the points made in the First Claimant’s letter, to enable him to draft a reply. The e-mail referred to above, which was not disclosed until the third day of the hearing, is Mr. Dunn’s response. In addition to the passages set out above, Mr. Dunn said:

“I had not been authorised to release the results of the sampling. Tony Navid [Veterinary Advisor], agreed in his email of 18^th November that it was better not to.

I certainly intimated that the pet-food samples were positive (for MBM) as this was the basis of the continued restrictions.

I did not disclose the results of the dung samples but Mr Banks chose to draw his own conclusions from my guarded comments.

Beef animals at grass in the summer months have little requirement for supplementary feed. The evidence from the [TSOs] is that some feed was found in the troughs of the housed stock. It would not have been unreasonable to assume that Mr Banks had bought in the food with a view to feeding it to the whole herd, in the autumn when grass growth ceased.”

On the 27^th November 2002 Mr. Rolfe wrote to the First Claimant on behalf of The Council:

“The analysis has shown that the three feed samples all contained muscle fibres and bone matter from land based animals. One of the faecal samples was shown to contain bone matter from a land-based animal whilst the other faecal sample was negative.

As you are aware, it is an offence to feed to livestock any feeding stuff in which any mammalian meat and bone meal has been incorporated, and this is a matter for which you could be prosecuted.

As I explained to you on the telephone the other day, I would now like to interview you regarding this matter, to obtain your version of events.”

Mr. Smith was informed of this development by a local authority liaison officer attached to Defra:

“The decision whether to precede (sic) formal action against Mr. Banks will be informed by what emerges at the interview. [Mr. Rolfe’s] view is that they will have sufficient grounds for a prosecution. He will keep us informed.”

After a holding reply dated 3^rd December, which stated that the Defendant was consulting with the Kent Trading Standards Office and seeking veterinary advice the First Claimant received a substantive response to his letter dated 19^th November in a letter from Mr. Smith dated 13^th December 2002. That letter said (in part):

“First, you made the point that at the time of the visit on 13^th September, not all cattle were housed, and many were out to graze, and had been for some time. Naturally officials are not in a position to determine where these cattle may have been on the premises and when. The one thing we can be sure about is that insufficient precautions were taken, so that livestock were not adequately prevented from gaining access to the prohibited material. Thus, there is a clear risk that cattle may have been exposed. The movement restrictions must therefore apply to all bovine animals on the premises.

Turning to your second point, the suggestion in relation to the petfood material in storage is not that cattle gained access to the product in the store – the suggestion is that animals were exposed to the material once it was taken from the store.

Thirdly, in relation to the area you marked ‘X’ on your diagram, my understanding is that some of the material sampled was found actually in the troughs in that area, not merely in the vicinity. I also understand that terrestrial bone was present in a sample of cattle faecal matter taken in that area, which is consistent with cattle having been exposed to the prohibited material in feed.

The sampling at various locations on Flintstones Farm was carried out by your Local Authority Trading Standards office. You will need therefore to discuss the overall sampling and analysis results with the investigating officer form Kent Trading Standards office – I understand you are meeting with him shortly.

You lastly suggested that the lack of evidence that livestock on your other premises may have been similarly exposed to petfood suggests that the practice was not likely to have taken place at Flintstones Farm, and contend that proper handling and storage were carried out there. I regret that comparison with your other premises does not, in our view, affect the findings at Flintstones Farm, although it is reassuring to know that this problem is limited to that site.

Finally I must re-iterate the importance of these controls. It is vitally important that BSE-related feed controls are rigorously enforced. This is the only way to ensure the continued decline of the BSE epidemic in cattle, helping at the same time to support the aim of ensuring public health, and to comply with the conditions which will lead to the export ban being further relaxed.

Regrettably, therefore, and in the light of the available evidence, I cannot find any basis in your comments to reconsider the existing movement restrictions.”

On 6^th January 2003 Mr. Dunn sent a fax to the First Claimant stating that he had “been requested to serve a new notice on you by head office, London…please could you ring me to discuss…”. The MRN dated 7^th January 2003, served under the powers conferred by the Amendment Regulations, contained an additional requirement: the Claimants had to surrender all the cattle passports relating to the herd.

On 29^th January 2003 the Claimants, and Mr. Hawkins, were formally interviewed under caution by Mr. Rolfe. The interviews were tape-recorded. Around this time, there were some telephone conversations between the Claimants and Mr. Dunn and Mr. Filley, but no record was kept, and no details are given in any of the Witness Statements. On the 11^th March 2003, Mr. Simpkin, a Consultant appointed by the Claimants, wrote to Mr. Filley on their behalf. The letter was lengthy and detailed. Under “Relevant Background” it said:

“It is apparent that there are currently two separate actions being taken in respect of my clients, Mr and Mrs Banks. In the first place, the Kent County Council Trading Standards Office who are responsible for the enforcement of the Regulations, have gathered some evidence which they have sent to DEFRA for analysis and now, having received the results, have to decide whether or not to Prosecute. While it would, of course, be inappropriate to discuss this matter in detail all the time there is some possibility of further action, there is a clear overlap of issues relevant both to the KCC position and your own and these do need to be considered.

Secondly, DEFRA have taken a separate action, on the basis of the search and samples obtained by KCC and have issued two temporary Orders restricting movement of livestock followed by an indefinite Order at the beginning of this year. The form and content of these orders is a matter of great concern to Mr and Mrs Banks particularly when there appears to be no obvious right of appeal, and no indication from DEFRA as to what circumstances will bring about the lifting of the latest Order. In addition, it is also unclear as to whether the outcome any of Prosecution by KCC will have any bearing on whether or not there is a continuing need for this Order. These matters need to be addressed and explained to Mr and Mrs Banks.

All of this places Mr and Mrs Banks in an impossible position because while their farming business has been severely affected and damaged they have received no indication either in the Order or in any other correspondence, as to what steps can or should be taken in order to ensure that the Order is lifted.”

The letter then asked a great number of questions, about the lawfulness of the search, the manner in which the samples were taken, the legal basis for the MRNs etc. The letter said that it was being copied to the Council with a request that the Council provide a list of the samples taken. The letter added:

“No results of the analysis of the materials / samples taken have ever been provided to Mr. Banks”

Reference was also made to a second sample survey undertaken by the Defendant on the 27^th September 2002 when five dung samples were removed from the fields. A copy of the results of that sampling exercise was requested. The letter also said:

“In the case of my client’s farm, it is apparent that at present there is only an allegation that livestock may have been exposed to the possibility of consuming mammalian products from pet food. There is no evidence that they were. None of the livestock show any symptoms of any disease arising from such possible consumption but in this case, the whole of the herd is treated as if it has been exposed to this possibility.

This seems to be an extremely unfair and inappropriate approach given the accepted procedure in other more serious cases.”

“It is understood that samples of pet food were taken from the store shed to which the animals had no access and samples were also taken from one part of one livestock shed where it is alleged pet food was found. It is also understood that dung samples were taken from the shed from livestock in the vicinity of where pet food was allegedly found.

Whilst it is accepted that no other evidence of pet food was found in any location accessible to the livestock, it is surely the case that dung samples should have been taken from a wider area in order to establish whether or not other livestock on the farm had been exposed to the possible contaminants.

It seems plainly unreasonable to treat the whole of the herd as having been at risk of contamination without undertaking proper sampling to determine whether or not they have been exposed to such risk.”

Mr. Filley replied to the letter dated 11^th March in the letter dated 28^th March 2003. The letter was headed “Possible exposure of livestock to pet food containing bovine material”, and stated (so far as relevant for present purposes):

“I should also like to make clear what evidence we have collected in relation to the Banks’s case, and the conclusions we have drawn. Put simply, investigations by Local Authority Trading Standards Officers and by Defra Veterinary Officers have established that:

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large quantities of pet food material were present on Mr and Mrs Banks’s farm. This material is known to contain mammalian and other animal proteins, as established by enquiries with the original manufacturer and through the results of samples taken from the Banks’s holding. Further, the material in question was inadequately stored;

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The results of samples taken on Mr and Mrs Banks’s farm show that material, containing muscle fibres and terrestrial bone fragments, was present in cattle feeding troughs. These results are consistent with sample findings in relation to the above-mentioned pet food material. Dung samples also suggest that animals have consumed this material;

-

taken together, these findings provide us with reasonable grounds for supposing that pet food material containing prohibited ingredients has been illegally fed to livestock.

In the light of this evidence, Defra’s position is that your clients are in breach of the TSE (England) Regulations 2002 (as amended). The evidence that we and Kent County Council have collected leads us, in particular to conclude that:

-

cattle on the Banks’s farm have been exposed to intra-species recycling. This practice is highly undesirable because it carries a risk of spreading infection with BSE. It also goes against the specific advice of the Food Standards Agency and the Spongiform Encephalopathy Advisory Committee (SEAC);

-

the evidence of deliberate feeding of cattle (based on the presence of prohibited material in cattle feeding troughs), means that we cannot exclude the possibility that any or all of the animals present on the Banks’s holding on 13 September 2002 may have received pet food known to contain mammalian protein. It is recognised that dung samples from animals in outlying fields were collected by Defra veterinary inspectors and proved to be negative. However, such samples are not sufficiently reliable to provide a means of ruling out possible exposure to banned feedingstuffs in the case of individual animals;

-

it has been suggested that pet food material may have found its way into cattle feeding areas by means of a cat, or that our sampling has detected animal protein from vermin or other sources of unrelated to the pet food material. In our view, however, these are not convincing arguments, and they are not consistent with the pattern of evidence collected from the farm. As discussed, sample results show clear links and a consistent pattern between the pet food material stored on farm, the material found in cattle feeding troughs and in cattle dung. Further, pet food material was plainly visible in the feeding troughs and in other parts of the farmyard. This supports the view we have formed: namely that there are reasonable grounds for supposing that pet food material is the source of mammalian protein detected by our sampling, and that this has been consumed by cattle.

-

against this background, Defra is confident that, given the risks involved, it would be wholly inappropriate for cattle from Mr and Mrs Banks’s holding to be allowed to enter the human food chain – bearing in mind the scientific uncertainty which characterises BSE and requires an approach which is precautionary in nature.

In relation to the original notice, served on 13 September 2003, I would remind you that this was issued by a Defra veterinary officer, appointed as an inspector under the TSE Regulations. On the question of the notice served under the TSE (England) Amendment (No 2) Regulations 2002, on 7 January 2003, Defra made a revised assessment of the situation at the Banks’s farm following the introduction of this S.I. We concluded that there were still reasonable grounds for supposing that cattle on the farm had been fed with banned mammalian protein and that a notice under the new Order was therefore appropriate.”

The concluding paragraph of the letter was as follows:

“In conclusion, the evidence collected from Mr and Mrs Banks’s holding seems to us to be very clear in respect of the feeding of prohibited animal proteins to cattle. And the action we have taken under Part III of the TSE (England) Regulations 2002 (as amended) represents a straightforward and proportionate enforcement of BSE-related animal feeding controls. Unless you are able to provide additional evidence to support your clients’ case, we consider that a meeting would serve no useful purpose. I know that this will disappoint your clients but I hope they will realise that we are acting because intra-species recycling has clearly taken place in contravention of the TSE regulation, so that there should be full and vigorous enforcement of this legislation. An important principle has been violated and Mr and Mrs Banks’s animals should not enter the food chain.”

In a reply dated 22^nd April Mr. Simpkin asked Mr. Filley to explain which feeding troughs were being referred to, why the Claimants had not been provided with samples of any of the material taken from the site, and what Mr. Filley meant by the statement:

“Further, pet food was plainly visible in the feeding troughs and in other parts of the farmyard.”

A reply was eventually received from Mr. Smith on the 2^nd June. The letter said (inter alia)

“Much of your letter of 22 April was about the evidence gathered by Kent County Council Trading Standards Officers, and the circumstances of their search at Flintstones Farm on 13 September 2002, and specific locations there. I am afraid that your questions on these points must be directed to them.

Defra’s responsibility in this case is to take action on the animal health issues. In order to so do we had to establish whether there were reasonable grounds for supposing that mammalian protein had either been deliberately fed, or access to it allowed, in contravention of the feed ban set out in the TSE (England) Regulations 2002 (as amended). Paragraph 3 of Mr. Filley’s previous reply of 28 March sets out the evidential basis underpinning Defra’s belief that reasonable grounds for our action have been established. The basis for Defra action is independent of Kent County Council’s consideration of the grounds for prosecution.

You refer to a serious conflict of evidence in this case, but the basis for this view is rather unclear. From Defra’s perspective, the elements which establish reasonable grounds to support our action (i.e. the evidence of petfood material present in the cattle feeding troughs, and evidence of its presence in cattle faecal material) and really very clear. These have not been challenged by your clients to any serious extent, although they have had several months to do so.”

Mr. Simpkin made enquiries of the Council and received a letter dated 17^th June which said:

“Contrary to what appears to be said in the reply you have from DEFRA, a sample was taken from only one trough. As I indicated when we spoke, there was insufficient material in the trough to divide the sample and to leave a portion with Mr Hawkins. I understand you will now approach the laboratory yourself to see whether there is material from the trough still available at the laboratory. If so, I will consider whether (in view of the possible legal proceedings) it can be released to you at this time.”

The letter enclosed the TSOs’ Witness Statements. They described the circumstances in which the samples were taken.

On the 19^th June a Senior Legal Officer employed by Council’s Trading Standards Department sent a fax to Mr. Simpkin:

“Having now received Defra’s agreement that the documents be disclosed, please find attached the aforementioned papers.”

The “aforementioned papers” included the forms completed by the TSOs relating to their taking of the samples, and a single sheet “Sample Submission and Report Form” dated 2^nd October 2002 signed by Mr. Reaney containing his analysis of the five samples, together with a Witness Statement from Mr. Reaney dated 20^th November 2002.

Mr. Reaney had supervised the carrying out of three kinds of test on all five samples: Microscopic Analysis Test (MAT), Compound Feed ELISA, and modified Counter Immuno Electrophoresis (mCIE). According to Mr. Reaney’s Witness Statement, the sample from the feed trough gave positive signals to the ovine ELISA and negative results to the bovine, porcine and avian ELISAs. The Form states “Inconclusive results for sample 1; weak ovine signal on initial and retest.” The other samples gave negative results to the bovine, ovine, porcine and avian ELISAs. In the MAT test, muscle fibres and terrestrial bone fragments were found in the microscopic sample from the trough. One of the two dung samples contained terrestrial bone fragments. The samples taken from the bags contained both muscle fibres and terrestrial bone fragments. In the mCIE test all five samples gave negative results to bovine, ovine, and porcine antisera.

Mr. Simpkin wrote to Mr. Filley on 20^th June stating that the Claimants would be making an application for permission to apply for judicial review if the MRN was not lifted and / or if a further comprehensive review of the evidence said to justify the MRN was not carried out. The letter enclosed a Preliminary Report from Mr. Church, a Consultant Animal Scientist and principal of AFC Agricultural and Environmental Consultants who had been instructed by the Claimants. The Preliminary Report criticised the nature and extent of the sampling methods adopted by the TSOs and the factual conclusions drawn by Defra. The Claim Form was filed on 27^th June 2003. The principal grounds of challenge were:

Further to ground (2) of the challenge, in a letter dated 3^rd July Mr. Simpkin asked for an assurance that Defra “has now provided, or will provide forthwith, my clients with all the evidence in their possession or control which is relevant and relied upon in support of the MRN…the disclosure should include any further statements from Defra witnesses, the photographic evidence taken on 13^th September 2002 or subsequently and any other scientific evidence.” In a reply dated 4^th July 2003, a Solicitor employed by Defra said: “You refer to the disclosure of documents in this case. Defra has and will of course comply with its disclosure obligations.”

By 16^th July the Council had sent copies of the photographs that had been taken on 13^th September 2002. Mr. Simpkin’s letter of the 16^th July to the Council said: “…although you have supplied 22 photographs which show bags of foodstuffs, none of the photographs show a half empty bag of biscuits as referred to in your Witness Statement. Can you please confirm that we have copies of all the photographs taken by various officers at their visit to the site.”

The Defendant’s Summary Grounds for Contesting the Claim, dated 17^th July acknowledged that the earlier references to the presence of feeding material in feeding troughs (plural) were made in error. Defra accepted that the material was found in one trough only. The facts set out in the Summary Grounds included the following:

“On 13^th September 2002 TSOs from the Council inspected the Claimants’ Flintstones Farm. They found large quantities of pet food stored there. Further, the officers found that some of the pet food was present in one of the cattle troughs. ”

Paragraph 37 of the Summary Grounds said:

“There was clearly sufficient evidence for the Defendant to conclude that she had reasonable grounds for supposing that the Claimants’ cattle had been fed prohibited material or had had access to such material. In particular:

(a)

the presence, in breach of the Animal By-Products Order 1999, of large quantities of pet food on the Claimants’ farm

(b)

the presence of pet food in one of the cattle feeding troughs

(c)

laboratory results showing that the material found in the feeding trough contained mammalian protein, terrestrial bone fragments and muscle fibres

(d)

laboratory results showing that terrestrial bone fragments were present in a sample of cattle dung taken from the feeding shed.”

On the 21^st July the Council wrote to the First Claimant:

“I write with reference to the visit of Trading Standards Officers to Flintstones Farm on 13 September last year, when samples of ‘biscuit’ meal were taken.

You will be aware of our concern that prohibited material was being fed to livestock (or was being stored with a view to feeding), contrary to the TSE (England) Regulations 2002.

Having considered at length the facts and circumstances, it has ultimately been decided that it would not be in the public interest to bring criminal proceedings against you in respect of this matter, and I can advise you that no further action will be taken by this authority.

I apologise for the exceptional time it has taken to reach this conclusion.

The decision of this authority not to institute legal proceedings has no bearing on the separate decision of DEFRA to restrict the movement of your stock, or on any other constraint DEFRA may have imposed.”

On the 11^th August, the Council sent Mr. Simpkin a copy of a statement dated 4^th February 2003 which the Council had obtained from a Mr. Tipple, whose business, F. Tipple & Sons., includes the buying and selling of by-products. In addition to their farming activities the Claimants have a partnership, Hempstead By Products, which specialises in the collection and disposal of waste food for animal feed. The partnership activities are run from Westwood Farm where there are no livestock. At the beginning of September 2002 Mr. Tipple offered to sell a load of mixed waste product to Hempstead By Products. His offer was accepted, and because his usual driver was not available Mr. Tipple delivered the load himself to Flintstones Farm. He was not aware that the load should have been delivered to Westwood Farm. There was no one at Flintstones Farm, so he unloaded the lorry and departed.

Permission to apply for judicial review was initially refused on the papers. The Claimants renewed their application. On the 28^th August, Mr. Smith wrote to the Claimants, telling them:

“Following my telephone conversation with Mrs Banks earlier today, I have notified Reigate Animal Health Divisional Office that you have received your passports from BCMS, duly stamped to indicate that they are not for human consumption. You should shortly receive a revocation notice from Reigate AHDO lifting the movement restrictions accordingly.”

A revocation notice dated 29^th August 2003, signed by a different inspector, Mr. Frost, was served on the Claimants. The first paragraph of the notice revoked the notice dated 7^th January. The second paragraph said:

“This lifting of the movement restrictions marks the beginning of the new passport arrangement previously notified in writing to you, with the passports now clearly indicating that the affected animals are not for human consumption. You should note that under Regulation 29F of the Regulations it is an offence to slaughter, sell, supply for sale, or allow the affected animals to be sold for human consumption – now or at any time in the future. Under the Regulations, a person found guilty of such an offence shall be liable to a fine or to imprisonment.”

On 16^th September Mr. Church produced a detailed report. The report was highly critical of the manner in which the sample from the trough and the dung samples (but not the samples from the bulk bags) were taken by the TSOs and analysed by Mr. Reaney. Mr. Church questioned the reference to “bovine material” in the heading to the letter dated 28^th March 2003, and pointed out that the only sample which tested positive for protein, the trough sample, had tested positive for ovine protein. From his analysis of the evidence, including the photographic evidence Mr. Church concluded (inter alia) that the samples found in the feed trough were “clearly not the same material” as the pellets found in the bags. He suggested that the material in the trough could have been dropped there accidentally by a cat. His report included the following:

“The other point to consider is the livestock outside of the buildings. It is clear from evidence that these animals had been turned out in the spring. To my knowledge there were no facilities to feed these animals by-products in the field and given the supply of grass and low stocking density there would have been no need to feed them with any supplementary feed containing by-products. There is no evidence that these animals had been fed banned products and even if the ban were to remain on the animals in the buildings it should not for logical reasons apply to the animals in the fields.”

“I have heard evidence from Mr Banks that he was totally unaware that the material found in the barn had been delivered as if material like this was to be supplied to him it would as a matter of course be delivered to his other premises where no livestock are kept.”

On 26^th September 2003 Mr. Simpkin wrote to Mr. Filley asking a number of questions about Mr. Reaney’s analysis of the samples. They included, for example, a request for the laboratory to specify the weight before analysis of the sample taken from the trough, and how many replications of the tests, particularly the MAT test, were undertaken on that sample. On 6^th October Defra’s solicitor replied that it was “not appropriate” to answer these questions. Permission to apply for judicial review was granted by Evans-Lombe J. after an oral hearing on the 22^nd October 2003.

The Defendant’s evidence was served on 2^nd December 2003. For the first time, the background to the visit on 13^th September 2002 was explained. Mr. Smith’s Witness Statement said:

“I was present at a meeting on 5 September 2002 held by Defra BSE Division and Veterinary Advisers with Trading Standards Officers (TSOs) from a number of local authorities. It was explained at the meeting that Defra Veterinary Officers visiting a farm in West Berkshire during July 2002 had identified stocks of petfood containing animal proteins on the premises – around 30 tonnes – and found evidence to suggest that this material had not been stored properly, and had also been fed to livestock there in breach of the feed ban.

The petfood material was tracked by West Berkshire TSOs to the manufacturer, and from there to a dealer who purchased the manufacturer’s reject material – Hempstead By-Products. This company is operated by the Claimants.

Since September 2001 Hempstead By-Products had purchased about 500 tonnes of reject pet food. West Berkshire reported a tracing exercise, including checking cattle movement records, which identified 12 premises, primarily farms, that had trading links with Hempstead By-Products. The TSOs from a number of local authorities present at the meeting therefore decided to visit all 12 premises in a co-ordinated exercise on Friday 13 September 2002 to establish that prohibited feeding practices, such as those which had taken place on the farm visited in July 2002, were not taking place at the other premises identified.

The TSOs found over 5 tonnes of finished petfood containing animal by-products on Flintstones Farm. This had been obtained in bulk after having been originally rejected for commercial reasons at the place of manufacture. Although the focus of the investigation was to ascertain whether the animal feed ban had been breached, I should also point out that the very presence of the petfood on Flintstones Farm constituted a violation of the Regulations.

It appears from the statement obtained by the Claimants from the animal feed manufacturer who delivered the consignment that the petfood material was delivered in bulk, along with other waste food materials. Under Regulation 18 of the TSE (England) Regulations 2002 the premises would have had to have registered as a storage facility to receive reject petfood containing processed animal proteins in bulk. But this would not be permitted on a premises where feed for ruminants was prepared. These controls are precisely intended to prevent cross-contamination of ruminant feedingstuffs. It follows that the delivery to and storage of the pet food on Flintstones Farm amounted to a breach of Regulation 18.

There were also failures in this case by the Claimants to comply with the record-keeping requirements contained in Regulation 26 which apply in relation to persons consigning or receiving consignments of mammalian meat and bone meal or processed animal protein. As a result of this failing on the part of the Claimants, the information available to Defra relating to the provenance of the petfood was incomplete.

The Claimants were the only ones who could have given us the full details of the provenance of all the petfood material present in their livestock feed store at Flintstones Farm. In particular, the information available from the interviews conducted by Kent CC indicates that the Claimants were the dealers who obtained the material in the first place, traded it, and accepted it back from their customer, leading to its arrival on Flintstones Farm. The only information provided about the petfood materials at the premises, however, as can be seen from the Kent CC Witness Statements was to suggest that it consisted of ‘maize pellets’. The Claimants left it to Defra to establish what the material was, based upon the laboratory analysis, when the onus was upon them to provide records showing exactly where all the petfood material came from. This would have helped to identify exactly what the material was.

As stated above, the focus of the inspection was to ascertain whether the animal feed ban had been breached. The TSOs found a quantity of pet food in one of the animal feeding troughs. This material was taken for testing. Similarly, the TSOs took two fresh faecal samples from the Claimants’ cattle in order for that to be tested.

The TSOs contacted a Defra vet, Mr Dunn, for assistance because of the animal health implications. In light of the findings made by the TSOs and the obvious risk that the livestock on the farm had been fed prohibited food, he issued Movement Restriction Notices preventing the cattle present on the farm from being moved. In particular, Mr Dunn took account of the fact that large quantities of petfood in bulk (including what appeared to be a half empty bag) had been found in a store used for livestock feed and than an appreciable quantity of petfood material was present in one of the animal feeding troughs. Petfood usually contains substances such as animal protein which are prohibited from livestock feed under the Regulations. There were therefore reasonable grounds for supposing that cattle on the farm had been fed prohibited material.

The reason why MRNs were issued in respect of all the cattle on the farm is that, in principle, the discovery of an appreciable amount of petfood material in a cattle feeding trough constitutes reasonable grounds to suppose that feeding has taken place, particularly in the absence of any reasonable alternative explanation being offered for the presence of any prohibited material in cattle feeding facilities. Having reasonable grounds to suppose feeding differs entirely from circumstances which suggest accidental exposure, which may have enabled action to be limited to individual animals that could have had physical access to a particular location. The enforcement measures taken in this case, therefore, were applied to all cattle on the premises which were under the control of the farm manager at the time of the inspection.”

The Witness Statement explained why the MRN had been maintained in force:

“Once the laboratory analysis of the samples taken was received and assessed with Veterinary advice on 2 October, the initial MRN imposed on 13 September was renewed on 3 October, coming into force from 11 October for a period of 28 days. The laboratory analysis, together with content information from the manufacturer, supported the view that there were reasonable grounds to suppose cattle had been fed prohibited animal proteins, including mammalian protein. The MRN was therefore renewed on 28 October to remain in force until lifted or amended by a subsequent Notice.

On 15 November the Head of the TSE Directorate replied to a letter of 31 October from the Claimants to the Chief Veterinary Officer, explaining the reasons for the continuing restrictions, and confirming that none of the affected animals would be allowed to enter the human food chain. Subsequently the MRN was renewed on 7 January adding the condition that the cattle passports of the affected cattle should be surrendered – this was to provide an extra safeguard, to ensure that in addition to the control measure of the MRN, the animals could not be submitted for slaughter for human consumption.”

Mr. Smith then explained the three tests that had been carried out under Mr. Reaney’s supervision, and his assessment of the results of those tests. Having made the point that the ELISA test results from the trough sample showed trace elements of ovine (sheep) material, he said in paragraphs 28 and 29:

“I would add that a similar ELISA result was also obtained at one of the other 12 premises visited on 13 September. Bulk petfood material believed to be traded by the Claimants was found and sampled at that premises (not in circumstances which involved livestock) and the ELISA test showed traces of ovine protein. It follows that the trough sample ELISA was not an isolated result unique to the material at Flintstones Farm.

There was therefore a consistent pattern to all the test results. The MAT test showed that animal material was present in (i) the stored petfood, (ii) the petfood found in the feeding trough, and (iii) one of the dung samples. The ELISA test carried out on the sample from the feeding trough revealed traces of ovine protein to suggest the presence of prohibited mammalian protein.”

In paragraph 33 he said:

“No information that has come to Defra’s attention since has caused us to change our conclusion that are reasonable grounds for supposing that the livestock on Flintstones Farm had been fed material prohibited by the Regulations.”

His Witness Statement then explained why Mr. Church’s report had not caused Defra to change its view.

Mr. Smith explained why the letter dated 28^th March had referred to “Bovine material”.

“For the sake of completeness, I should add that some of the background information on the petfood in the store originally came from the manufacturer we believed to have supplied the material. The manufacturer indicated that their petfood material contained 4% ‘meat digest gravy’ which consisted of chicken, beef, rabbit, bacon, lamb and fish. The presence of ‘beef’ was the reason why early letter headings from this unit referred to ‘bovine’ material, not, as has been suggested in the Claimants’ Report, because our ‘files may have become confused’ – these references in our correspondence made it clear that we were referring to information from the manufacturer we believed to have produced this material. In later information relayed to us by Kent CC last June during the latter stages of their investigation for prosecution purposes, however, we were informed that there had been petfood material from more than one manufacturer present in the livestock feed store area at Flintstones Farm, and that the product which had been described to us was not the one which included beef.”

In response to Mr. Church’s claim that the trough sample and the pellets in the bulk bags were not the same material, Mr. Reaney said in his Witness Statement:

“The biscuits in sample 4 are a mix of red and brown small pellets, the biscuits in sample 5 are large brown oval biscuits and are clearly different from the biscuits photographed in the trough as part of exhibit 6 of Mr Church’s report. However, we were able to detect animal material in 4 out of the 5 submitted samples.”

Mr. Smith’s response to Mr. Church’s claim was:

“However as explained above there were a number of different types of petfood present in the store, not all represented in the two close-up photographs. Defra also relies upon the statement of David Harty of Kent CC to the effect that the pellets in the trough and the store were the same.”

Among the many concerns expressed in Mr. Church’s report, was a concern about the adequacy of the amount of the sample material that the TSOs had obtained from the trough, hence the questions raised in the letter dated 26^th September 2003 which the Defendant’s solicitor had declined to answer. Mr. Smith was able to answer this question in his Witness Statement; “the laboratory has confirmed that the material sampled from the feed trough weighed 47g.”

Mr. Church’s report had said that the considerable number of dogs and cats on the farm were fed on biscuits supplied by a retail outlet. He was concerned that these had not been sampled, and thus eliminated as the source of the biscuits in the trough. In his Witness Statement Mr. Smith pointed out that this suggestion had not been made until the claim for judicial review, and referred to the final question posed in the First Claimant’s letter dated 31^st October 2002 “Can I still feed the 15 cats and 3 dogs with the dry pet food from the bags from which you took samples…”. Mr. Smith commented “this does not suggest that they were using a separate supply of petfood for the animals present”.

Paragraph 54 of Mr. Smith’s Witness Statement explains why Defra had rejected the Claimants’ explanation for the presence of the material found in the feed trough. The quantity and unchewed condition of the five or six pieces of material was not consistent with having been carried in the mouth of a cat.

“Moreover, the presence of microscopic petfood residues in the cattle dung sample provide grounds to suppose that sufficient amounts of petfood had been consumed previously from that trough to show up in the dung. Furthermore, as the presence of this petfood material was conspicuous enough to have been immediately apparent to the inspectors at the time of the visit, this would have been equally so to any stockmen working there.”

Having explained why Mr. Church’s report had not caused Defra to change its view “that there are reasonable grounds for supposing that the animals on Flintstones Farm had been fed food prohibited by the Regulations”, Mr. Smith went on to explain why the Defendant had not invoked its powers under regulation 29B to require the herd to be slaughtered. If an animal is slaughtered under regulation 29B, the Secretary of State may pay compensation under regulation 29C. Mr. Smith explained that had slaughter been required, it was unlikely that compensation under regulation 29C would have been considered appropriate in a case where there were reasonable grounds to suppose actual feeding of prohibited material to cattle in breach of the feed ban.

Finally, Mr. Smith explained that, after discussions with the Food Standards Agency, the Meat Hygiene Service and the British Cattle Movement Service, a better means of preventing the herd at Flintstones Farm from entering the human food chain had been devised: stamping the cattle passports as set out in paragraph 4 above. This new passport arrangement enabled the MRN to be revoked on 29^th August 2003. In the final paragraph of his Witness Statement Mr. Smith refuted the Claimants’ contention that there had been an absence of balance between the Claimants’ interest and that of the public: “In the present case we have done everything we could to protect the interests of the Claimants while fulfilling our responsibilities”.

Mr. Reaney’s Witness Statement gave more details of the manner in which the samples had been tested, and responded to the many queries / concerns / criticisms contained in Mr. Church’s report. He agreed with Mr. Church that the samples taken from the bulk bags were “clearly different” from the biscuits photographed in the trough (para. 64 above). Responding to Mr. Church’s contention that there was no clear evidence of deliberate or accidental feeding of pet food to the cattle at Flintstones Farm, Mr. Reaney said:

“The occurrence of bone fragments in the faeces of cattle being fed a ration free from bone material is very unusual. The bone fragments in sample 2, showed signs of acid damage as would be expected if they had been through the digestive system. In routine faeces samples (including the 5 follow up faeces samples from Mr Banks farm) we do not normally detect bone fragments. This would suggest that the cattle had eaten material containing small fragments of bone material that had been partially digested and then excreted in the faeces.

In addition, the trough sample was reported as containing terrestrial bone and muscle fibres while the dung sample was reported as containing terrestrial bone fragments. This would be expected as the muscle fibres would have been digested by the animals, leaving only bone fragments in the faeces.”

Mr. Church had said that the result of the MAT test proved nothing. Mr. Reaney’s response was: “From a test point of view it demonstrates that animal material was present in the trough”.

The First Claimant responded to Mr. Smith’s Witness Statement in a second Witness Statement dated 12^th January 2004. He provided information about the complex of farm buildings.

“The farm building in which the allegedly prohibited pieces of cat biscuit were found is approximately 1254 sq m (13,500 sq feet) in size some 65 metres (214 feet) of feeding troughs serving a number of separate animal pens. The feeding trough in which the biscuits were said to be found served a pen that contained two bulls. There were 6 other animals housed in different parts of this building, with 18 other animals in the other buildings extending in total to some 3390 sq m (36,500 sq feet) with feed troughs totalling 85 metres – 280 feet) and a further 221 cattle out in the fields.”

The First Claimant’s response to the West Berkshire operation was as follows:

“As far as the operation in West Berkshire is concerned, I profoundly object to being condemned as a result of the actions of others that I neither knew about, did not authorise, nor collude in !

There is a suggestion here, by inference at least, that because Hempstead By-Products supplied fish food to the West Berkshire operation, that it was somehow involved in whatever illegal practice was / is alleged to have taken place there.

However, Mr. Smith appears to be somewhat adrift in his reporting of the facts:

1.

My records show that I sold 26 tonnes net of material [not 30] for use as fish food to a customer in West Berkshire.

2.

The material was delivered by an independent haulier, not to a farm, but to a site at Aldermaston where, I understand, there are no livestock. That was the extent of my involvement with the material and the customer.

Exhibited hereto are two invoices evidencing the business I conducted with the customer in West Berkshire using an independent haulier, Blickverge Limited.

The material found in West Berkshire is obtained by me from Friskies Petcare at Worksop. I have done business with this company for many years. Of the material I purchase from Friskies, only 1 – 2% is delivered to Westwood Farm before onward transmission. The bulk of the material is delivered direct to customers. Friskies employs a DEFRA vet to monitor its operations at Worksop and part of my contract with them requires me to specify the use for which the material is intended. I buy it from Friskies as fish food and I sell it to my customers on that basis: see [delivery notes exhibited]. There is a very good demand for this material from anglers to be used as ground bait and for the feeding of ornamental fish.”

The First Claimant referred to Mr. Tipple’s Statement and stated that it was not his practice to store pet food at Flintstones Farm. He also explained why it would be uneconomic to feed the waste / pet food to his cattle:

“It is bizarre that DEFRA should jump to a conclusion that I would deliberately feed my cattle prohibited materials and risk BSE infection when we have been so careful in the development of our herd and managed to keep it BSE free since its inception over 20 years ago. Furthermore, to scotch another mistaken assumption by DEFRA, there is no economic advantage to us to feed our cattle waste food products or pet foods containing mammalian proteins or other prohibited material. I can sell the waste / reject pet food as fish food for £60 – 160 per tonne [receipts exhibited], whereas I can enhance the quality of my beef herd by feeding them maize silage or other cereal or bakery waste products which I am able to obtain at a price of £30 per tonne or less, i.e. basically the cost to us of paying to have it collected direct from the factories.”

The First Claimant took issue with Mr. Smith’s contention that over five tonnes of material had been found in the bulk sacks – he had subsequently estimated the weight at between 2 – 3 tonnes. He also challenged the assertion that one of the bags was half full. By reference to the photographic record, which the First Claimant confirmed was correct, it can be seen that there were five large and one smaller bulk bags. The First Claimant also explained, by reference to the photographs of the TSOs undertaking the sampling, how he believed that contamination of the samples might have occurred, and contended that the material in the bags could be seen to be different from the material in the troughs, “which in all probability was harmless and lawful strawberry muesli”. The final question in his letter dated 31^st October 2002 did not contain the implication that there was no separate supply of pet food. He also said that since Mr. Hawkins had not been asked by the TSOs what food he fed to the domestic animals on the farm he did not think to volunteer that information, and produced a letter dated 12^th December 2003 from Mr. Glover the proprietor of a feed shop confirming that Mr. Hawkins had regularly purchased cat and dog food from the shop over the past three years.

Now that a number of his outstanding questions had been answered by Mr. Smith and Mr. Reaney’s Witness Statements, Mr. Church produced a Supplementary Report dated 11^th January 2004. This made further detailed criticisms of the sampling and analytical procedures and of Mr. Reaney’s conclusions:

“The fact is that I have been provided with evidence which in my opinion casts more doubt on the validity of the scientific evidence and goes no way to allaying my concerns.”

“There is in my opinion no clear scientific link between the biscuits in the store, the pieces in the trough and the dung samples.”

“All of the scientific information that I have seen leads me to conclude that there is no reliable scientific evidence at all to support the claim by DEFRA that there had been deliberate feeding of prohibited feedstuffs at Flintstones Farm.”

Mr. Reaney responded to Mr. Church’s further concerns in a letter to Defra dated 23^rd January 2004, which Defra sent to the Claimants. A number of photographs showing sample bottles, and slides of samples under the microscope were also sent to the Claimants under cover of a letter explaining that they were the “Banks Samples”. In a Second Supplementary Report dated 6^th February Mr. Church commented that the photographs of the microscopic analysis were not labelled, contrary to the Veterinary Laboratories Agency’s Standard Operating Procedure, and responded to Mr. Reaney’s letter dated 23^rd January. It is unnecessary to rehearse the detail, suffice it to say that there remain many, substantial areas of disagreement between Mr. Church and Mr. Reaney.

The Defendant accepts that she was under an obligation to keep the justification for maintaining the MRN under review. Parliament has not made provision for an appeal against an MRN and has not prescribed any procedure for carrying out a review. Despite the lack of a statutory procedure, the Defendant rightly acknowledges that the process of review must be conducted in a way that is procedurally fair to the owner of the livestock affected by the MRN. Where no statutory procedure is prescribed the Court should be cautious in invoking procedural fairness as requiring the taking of any particular step, but it must ensure that elementary standards of fairness are met. For the reasons set out below I have no doubt that they were not met in the present case, and the Claim must succeed on ground (2) (paragraph 52 above).

Miss Demetriou rightly accepted in her Skeleton Argument that the Defendant had to give the Claimants sufficient information concerning the case against them to enable them to make proper representations as to why the MRN should be suspended, amended or revoked. There is no evidence as to what Mr. Dunn may have told Mr. Hawkins on the 13^th September. Although Miss Demetriou referred to telephone conversations with the Claimants, in the absence of any evidence from Mr. Dunn (apart from his confirmation of Mr. Smith’s Witness Statements) there is no evidence that he ever explained to the Claimants the case against them. The terms of the e-mail – “guarded comments” and the First Claimant’s letters dated 31^st October and 19^th November 2002 suggest that he declined to do so.

Despite the fact that the First Claimant had been pressing Defra for an explanation since at least the 31^st October 2002 (his letter of that date suggests that by then he had asked Mr. Dunn for an explanation and been unable to obtain one) he did not receive an explanation of the case which he had to meet until the letter dated 28^th March 2003, over six months after the MRN had been imposed. Even then, the explanation provided was incomplete (see para 83 below), and crucial information, the test results, was deliberately withheld (see para 84 below).

The letter dated 13^th December 2002 did not set out the case against the Claimants. It merely responded to the points that had been made by the First Claimant (without knowledge of the case against him). In doing so it was less than frank. Firstly, the letter did not state that Defra had received Mr. Reaney’s Report Form on 2^nd October 2002 but had decided not to disclose it. Instead, the First Claimant was told that he would have to discuss “the overall sampling and analysis results with the investigating officer from Kent Trading Standards Office”.

Secondly, the First Claimant was not told of the true basis for Mr. Dunn’s concerns, as they had been expressed in the e-mail dated 21^st November 2002. In Mr. Dunn’s view, there was no suggestion that animals had obtained access to the feed inside the store, rather, he was suggesting that food had been taken to them from the store, and it would not be unreasonable to assume that the First Claimant had bought in the food with a view to feeding it to the whole herd in the autumn. Mr. Dunn suspected that this was a case of deliberate feeding, and an intention to feed the entire herd, rather than a case where some of the animals might have gained access to prohibited feedstuffs.

The letter dated 13^th December 2002 states that the basis for applying the MRN to the whole herd was that “insufficient precautions were taken so that livestock were not adequately prevented from gaining access to the prohibited material”. This does not suggest that deliberate feeding was suspected, rather that there had been accidental access. Confusingly, the letter then states that the suggestion was not that the cattle had gained access to the product in the store, but that they “were exposed to the material once it was taken from the store”. The letter does not state whether the Defendant suspected that this exposure was deliberate or accidental, nor does it refer to the suspicion that the material in the store had been bought in with a view to feeding it to the whole herd in the autumn. The suspicion that the Claimants had engaged in deliberate feeding of prohibited material, and proposed to feed their entire herd such material in the autumn was a very serious matter. It should have been put “fair and square” to the Claimants. It was not. Had it been put to them, the Claimants could have explained, for example, that such a suspicion was not merely unfounded, it simply did not make economic sense (para. 73)

The Claimants did not give up their attempts to obtain copies of the results of the analysis of the samples. The letter dated 11^th March 2003 had stated that the County Council was being asked to provide a list of the samples taken, and complained that:

“No results of the analysis of the materials / samples has ever been provided to Mr. Banks.”

Although the letter dated 28^th March relied in part on “the results of samples taken on Mr. and Mrs. Banks’ farm”, it failed to address the Claimants’ long outstanding request for a copy of those results. The issue was raised again in Mr. Simpkin’s letter dated 22^nd April (para. 46 above). The reply dated 2^nd June referred him, once again, to the County Council. To add insult to injury the letter dismissed the suggestion that there was a conflict of evidence, saying that the evidence supporting the Defendant’s action (evidence of petfood material present in the cattle feeding trough and evidence of its presence in the cattle feeding material) was

“really very clear. These have not been challenged by your clients to any serious extent, although they have had several months to do so.”

Miss Demetriou was unable to explain how the Claimants were expected to have challenged this evidence at all, let alone to any serious extent, without details of both the sampling undertaken by the TSOs and Mr. Reaney’s analysis of the samples. While Defra did not have any written record of the former, it had been in possession of the latter since 2^nd October 2002. Defra’s continued failure to provide the Claimants with Mr. Reaney’s analysis was not inadvertent, it was deliberate: see the e-mail dated 21^st November 2002 (para. 39). It was also manifestly unfair. No explanation for this failure was given in the Defendant’s evidence.

Miss Demetriou said that the reason appeared to have been a concern that disclosure of the test results would prejudice the Council’s criminal investigation. It is difficult to see how fair and timely disclosure could have prejudiced a criminal investigation. Despite the fact that Defra was liasing with the Council, there is no suggestion that it ever asked the Council whether disclosure would be prejudicial. Indeed the Council had clearly been given the impression that it should not disclose the documents without Defra’s agreement (para. 50). The letter dated 2^nd June 2003 explained that “the basis for Defra action is independent of Kent County Council’s consideration of the grounds for prosecution”. Defra was obliged to ensure that its independent action was conducted in a procedurally fair manner whatever might have been the views of the County Council. Defra’s unwillingness to disclose relevant information relating to the test results continued even after these proceedings had been commenced. Mr. Simpkin’s enquiry as to the weight of the trough sample before analysis was not answered until the Defendant’s Witness Statements were served on 2^nd December 2003. The photographs of the “Banks Samples” were not produced until after the 23^rd January 2004. The e-mail which revealed that it was Defra’s decision, not the Council’s, that the Claimants’ should not be given the test results, and which disclosed Mr. Dunn’s suspicion that the pet food had been bought in for the purpose of feeding to the stock in the autumn, was not disclosed until the 19^th February 2004.

Defra’s persistent failure to disclose relevant material, and to answer pertinent questions, does not end there. Following the letter dated 28^th March 2003 Mr. Simpkin had asked which feeding troughs were being referred to and what was meant by the statement that pet food was “plainly visible in the troughs and in other parts of the farmyard”. The reply dated 2^nd June 2003 made no attempt to answer these questions, it merely referred that Claimants to the County Council. There is nothing to indicate that Defra ever asked the County Council to identify the troughs referred to, or where else in the farmyard pet food was said to have been seen. It was left to the County Council in its letter dated 17^th June 2003 to correct the error. Only then did the Defendant finally acknowledge in its Summary Grounds that pet food had been found in only one trough (para. 55). No evidence has been forthcoming as to where else pet food was found in the farmyard (other than in the feed barn). Miss Demetriou suggested that it might have been a reference to the food provided for the farmyard cats, but there is no reference to this in the TSOs’ statements. The Claimants have still not been supplied with the analysis of the dung samples taken on 27^th September 2002.

The background to the TSOs’ visit on 13^th September 2002 was explained for the first time in Mr. Smith’s Witness Statement. A very large stock of pet food containing animal protein which had been purchased from the Claimants’ partnership, Hempstead By-Products, had been found on a farm in West Berkshire. Hempstead By-Products had purchased about 500 tonnes of reject pet food between September 2001 and September 2002. A tracing exercise had been undertaken as a result of which twelve farms which had trading links with Hempstead By-Products were raided by TSOs in a co-ordinated operation.

While the Claimants had discovered that other farms had been visited on 13^th September (they were at Westwood Farm when it was visited by Mr. Rolfe) they had not been told of the underlying grounds for suspicion: that Hempstead By-Products was part of a widespread conspiracy to feed cattle with prohibited products. Had the Claimants been given a fair opportunity by the Defendant to answer this very grave concern they would have been able to provide the explanation set out in paragraph 72 (above). The Defendant may or may not have accepted their explanation, but it was grossly unfair that they were not told of this very grave suspicion at the outset and given a proper opportunity to answer it.

In response to my question as to why the suspected West Berkshire link was not mentioned at an earlier stage Miss Demetriou said that it was “not relevant” to the Defendant’s decision, and that Defra did not rely upon it when reaching the decision set out in the letter dated 28^th March 2003. I do not accept that explanation. If justified, the suspicion underlying the co-ordinated raids on 13^th September 2002 was highly relevant. It was the, unspoken, background to the initial decision to impose a MRN on 13^th September 2002, and to maintain it in force thereafter. The TSOs clearly thought they had found what they expected to find. A West Berkshire TSO had attended the operation at Flintstones Farm on 13^th September. Mr. Dunn told Mr. Hawkins that a MRN would be served after a short conversation with Mr. Kempster and before he had even inspected the animals.

The submission that this information played no part in the decision making process is not realistic. So long as this very serious suspicion persisted, any explanation given by the Claimants relating to matters of detail (even if they had been given a proper opportunity to make such an explanation) was bound to be viewed with considerable scepticism. Defra suspected that there had been deliberate feeding at Flintstones Farm, not accidental exposure. This suspicion fitted in with the suspicion that there was a wider conspiracy involving Hempstead By-Products as the supplier of prohibited material. Far from suggesting that the information about the suspected West Berkshire link contained in his Witness Statement was merely background material, not relied upon in the decision making process, Mr. Smith referred in paragraph 28 to the fact that a similar ELISA result had also been obtained at one of the other 12 premises visited on 13^th September where bulk pet food had been traded by Hempstead By-Products, and said: “it follows that the trough sample ELISA was not an isolated result unique to the material at Flintstones Farm” (para. 62 above).

Although greater emphasis is now placed on the sample results, Defra’s conclusion that there were still reasonable grounds for supposing that pet food material containing prohibited ingredients had been illegally fed to livestock was not based upon the sample results alone, it was also based (“taken together these findings provide us with reasonable grounds”) upon the fact that “large quantities of pet food material were present on Mr. and Mrs. Banks’s farm”. It is readily understandable that, absent any reasonable explanation, the presence of large quantities of pet food containing prohibited ingredients in bags labelled “peanuts” in a cattle feed barn on a farm containing livestock would give rise to a reasonable suspicion for the purposes of regulation 29A, particularly since Mr. Hawkins had initially told Mr. Kempster that the sacks contained “maize pellets”.

The obvious question for the Claimants, to which they had to give an answer if this ground for suspicion was to be allayed was: why was this very large quantity of pet food, in bags labelled “peanuts” in the feed barn at Flintstones Farm? It is not of critical importance whether the amount was “over 5 tonnes” as stated in Mr. Smith’s Witness Statement (para. 60 above) or between 2 and 3 tonnes as stated in the First Claimant’s Second Witness Statement (para. 74 above), but it is perhaps an indication of the Defendant’s attitude to this case that the TSOs report of five “large (approx. 1 tonne)” bags and one allegedly half open bag has been used to justify a claim that the amount was “over 5 tonnes”.

The Claimants did not answer this obvious question in their correspondence with Defra or in their evidence in support of the Claim for Judicial Review. In my Preliminary Observations I noted that no explanation for the presence of the pet food in the feed barn appeared to have been given until Mr. Tipple gave his Witness Statement to the County Council on 4^th February 2003 (para.49). The Appendices to Mr. Church’s report dated 16^th September 2003 had included an unsigned and undated Witness Statement from Mr. Hawkins, in which he had explained why he initially described the material in the bags as maize: the TSO showing him the material was some distance away, when he looked more closely he saw that it was cat biscuits. It would appear that these statement were not received by the Defendant until they were produced by the Claimants as part of their evidence in these proceedings. I therefore asked the Claimants why they had not given this information to Defra at an earlier stage.

The First Claimant answered this question in a further Witness Statement made on 17^th February 2004:

“On 13 September 2002, I was not present at Flintstones Farm at the time of the search and sampling as I was engaged at Westwood Farm dealing with a parallel operation. At Westwood Farm I had been interviewed by Mr. Mark Rolfe of KCC. When he left Westwood Farm, he then visited Flintstone Farm with Ms Sarah Langley, also from KCC, and two DEFRA personnel.

I was informed subsequently by Mr. Hawkins that a notice had been served in connection with feedstuff found at Flintstones Farm. I immediately asked him what such material was doing there and where it had come from? He advised me that it was part of a mixed load dropped of by Mr. Tipple at Flintstones Farm which he had dropped off and stored at the back of the barn. Mr. Tipple’s statement confirms his action in this regard.

By this time, Mr. Rolfe had left Westwood Farm so I called him on his mobile telephone immediately and informed him what had happened. I explained how the material came to be at Flintstones Farm; that it was there in error, and that it was certainly not fed to the cattle, nor intended for such use. He acknowledged what I said and said he would await the results of the rest of the day. At the time I fully expect that the matter would be satisfactorily resolved in the near future.

Unfortunately, and notwithstanding some correspondence and telephone discussions, the matter was not resolved as I expected but nonetheless my wife and I cooperated fully with KCC – DEFRA never approached us for information – and we attended KCC on 29 January 2003 and volunteered statements concerning these events to Mr. Rolfe. On 29 January 2003 I repeated my explanation and reminded Mr. Rolfe that I had called him on 13 September 2002 and explained the circumstances at the time. I went on the suggest he contact Mr. Tipple for a statement and gave him Mr. Tipple’s address.

I did not dwell on how the suspect material got on the Flintstone’s farm after my conversation with Mr. Rolfe on 13 September 2002. I did not think it was particularly important. The issue was not how it had got there, or its presence there, but whether the material had been deliberately fed to the cattle. Apart from the fact that it was still summer and the cattle were mostly out to grass, as I told Mr. Rolfe, we had food coming out of our ears to feed the cows.”

Having given an explanation to Mr. Rolfe, the First Claimant might reasonably have assumed that Defra would have been made aware of it. Defra’s initial reply, dated 3^rd December 2002, to the First Claimant’s letter dated 19^th November 2002 stated that Defra was consulting with the Council. The letter dated 28^th March 2003 referred to what had been established by “investigations by Local Authority Trading Standards Officers and Defra Officers”; and to the conclusions reached on the basis of “the evidence that we and Kent County Council have collected”. The impression was being given to the Claimants that this was a joint investigation by Defra and the Council. The Claimants might have been forgiven for assuming that there was therefore effective liaison between Defra and the Council. During the course of the hearing Miss Demetriou confirmed that the Defendant had not received any of the Witness Statements taken by the Council (including Mr. Tipple’s) until they were served by the Claimants as part of their evidence in these proceedings. She explained that the Council might have been concerned to protect the confidentiality of those who had given the statements: see Frankson and Others v. Home Office (2003) 1 WLR 1952, 2003 EWCA Civ 655.

If this was the explanation, it would merely reinforce the need for Defra to have made its own full and proper enquiries of the Claimants, to ensure that they had a fair opportunity to answer the matters which were of concern to the Defendant. It is not for this Court to decide whether the answers now provided by the Claimants, Mr. Hawkins, and Mr. Tipple are satisfactory. That should have been a matter for the inspector responsible for considering whether the MRN should be maintained. However, as a matter of elementary fairness, as well as common sense, Defra should have asked the Claimants at a very early stage whether they had any explanation for the large quantity of pet food found at Flintstones Farm. It was not sufficient merely to allow the Claimants to make representations. In order to be able to make meaningful representations the Claimants had to be told what concerns they had to answer. Had that been done, it would very quickly have become apparent that, despite the references to consultations between the Council and Defra, the explanation promptly given by the First Claimant to the former had not in fact reached the latter.

A further example of Defra’s failure to ask the most obvious questions is to be found in paragraph 18 of Mr. Smith’s Witness Statement:

“The Claimants were the only ones who could have given us the full details of the provenance of all the petfood material present in their livestock feed store at Flintstones Farm. In particular, the information available from the interviews conducted by Kent CC indicates that the Claimants were the dealers who obtained the material in the first place, traded it, and accepted it back from their customer, leading to its arrival on Flintstones Farm. The only information provided about the petfood materials at the premises, however, as can be seen from the Kent CC Witness Statements was to suggest that it consisted of ‘maize pellets’. The Claimants left it to Defra to establish what the material was, based upon the laboratory analysis, when the onus was upon them to provide records showing exactly where all the petfood material came from. This would have helped to identify exactly what the material was.”

The First Claimant’s response in his Second Witness Statement, that he had “received no requests from Defra concerning the provenance of the material” has not been challenged. He was merely asked to keep the material for 28 days, which he did. He was not asked to supply any records, or to identify the manufacturer. Defra did not ask the Claimants what the material in the bulk sacks was or where it had come from. The TSOs did ask the First Claimant whether the factory that produced the material had provided a provenance, and the First Claimant told them that the Friskies factory produced a weighbridge ticket and a GKN collection note. His Witness Statement in these proceedings exhibited samples of such documents. Having failed to ask any relevant questions, the Defendant now draws adverse inferences against the Claimants for failing to provide the answers.

In paragraph 20 of his Witness Statement Mr. Smith explains that on the 13^th September 2002:

“in particular Mr. Dunn took account of the fact that large quantities of petfood in bulk (including what appeared to be a half empty bag) had been found in a store used for livestock feed and that an appreciable quantity of petfood material was present in one of the animal troughs.”

That is inaccurate. We now know that Mr. Dunn believed that the pet food was in more than one trough. Moreover, Miss Demetriou confirmed that Mr. Dunn on 13^th September 2002, and the officials responsible for the letter dated 28^th March 2003, believed that the petfood found in the troughs (plural) was the same as the material found in the six bags, one of which was half full:

“sample results show clear links and a consistent pattern between the pet food material stored on the farm, the material found in the cattle feeding troughs and in the cattle dung.”

This provides a further illustration of the vital importance of full and frank disclosure. Mr. Harty’s First Witness Statement referred to one of the six bulk bags being half empty. In his later Witness Statement he said that the biscuits in the “half bag” were larger and distinctly different from those in the five full bags. Despite the fact that there were two types of biscuits in the bags, he nevertheless said that “the pellets in the trough were the same as those pellets contained in the five full and one half empty bags”. Presumably, in the absence of any written record, this is what he told Mr. Dunn on 13^th September 2002. The Claimants were not provided with the photographs taken on 13^th September 2002 until about 16^th July 2003, some ten months later (para. 54). On a cursory examination of the photographs it is plain that they do not show a half empty bag; they show five full bags and one smaller bag, all of them being full. It may well be a coincidence, but shortly after Mr. Simpkin asked whether all the photographic evidence had been supplied, the Council informed the Claimants that they would not be prosecuted. No proper explanation for this decision has been given, and no further evidence has been produced to support the proposition that one of the bags was half full.

Moreover, the photographs enable a visual comparison to be made between the material found in the trough and the pellet samples from the bags. In response to Mr. Church’s point that they did not appear to be the same, Mr. Reaney fairly acknowledged that the pellets found in the bags were “clearly different from the biscuits photographed in the trough”. Mr. Smith now contends that the possibility that the material found in the trough was the same as the pet food contained in the bags “cannot be ruled out” because “there were a number of different types of petfood in the store, not all represented in the close up samples”. In order to maintain this part of her case against the Claimants, the Defendant is thus forced to cast doubt upon the extent to which the samples taken by the TSOs were representative of the material in the bags, and whether their photographs were a fair and accurate record of what they had seen.

Drawing these threads together, the decision to maintain the MRN in force was taken against a background which included the following material:

Against this background, it is hardly surprising that the MRN was maintained in relation to the entire herd on the basis that there were reasonable grounds for suspecting that there had been deliberate, rather than accidental feeding. It could not be contended that on the information obtained by Defra it was not justified in maintaining the MRN on the 28^th March 2003. I would therefore have rejected ground (1) of the Claimants’ challenge (para. 52 above) if the MRN had still been in force. Unfortunately, as a result of the Defendant’s failures:

Adopting the same numbering as that set out in paragraph 101 (above):

I repeat, it is not for this Court to decide whether Mr. Reaney’s evidence or Mr. Church’s evidence is to be preferred. Nor is it for this Court to decide whether the Claimants’ answers and explanations are persuasive, and what reliance should be placed on the TSOs’ evidence, including their photographic record. All of these matters were for the responsible inspector to consider. His, or her decision would then have been reviewable on Wednesbury grounds. It is, however, for this Court to ensure that the requirements of procedural fairness are observed. For the reasons set out above, while there was no intention to be unfair to the Claimants, there can be no doubt that the decision dated 28^th March 2003 was reached by a process that was manifestly unfair to them. The same applies to the decision to serve the MRN under section 29A on 7^th January 2004. By that time Mr. Dunn had had ample time, nearly four months had elapsed since 13^th September 2002, in which to explain his reasons for serving the notice, and to disclose all of the material on which he had relied, including the test results and his assessment of them.

In summary, the statement in the Defendant’s Skeleton Argument that Defra has “from the outset scrupulously explained the basis and reasons for its decision to the Claimants; shared the evidence on which it was basing its decision and responded fully to the many questions concerning its decision raised by the Claimants” is a travesty of the true position. Defra failed to give any detailed explanation of the basis and reasons for its decision until 28^th March 2003, over six months after the MRN was first served. That explanation was incomplete, and contained much that was either inaccurate or at the very least open to serious challenge in a number of material respects. Far from sharing the evidence upon which it relied, which might well have enabled the Claimants to dispel a number of suspicions and mount an effective challenge to the test results and the conclusions drawn therefrom, Defra deliberately refused to disclose highly material information to the Claimants. Far from being full, a number of the responses to the Claimants’ repeated questions were evasive, and simply “passed the buck” to the Council, which was under the impression that it could not release information without Defra’s consent.

Had the decision contained in the letter dated 28^th March 2003 still been in force, I would have quashed it upon the ground (2), procedural unfairness.

Miss Demetriou rightly submitted that it was artificial to consider the decision contained in that letter in isolation. Events had moved on since then, the case was continually evolving as the Claimants adduced new evidence, e.g. in the Reports of Mr. Church. As explained by Mr. Smith in his Witness Statement, Defra had considered all the fresh evidence and it did “not cause it to change its view that there are reasonable grounds for supposing that the animals on Flintstones Farm had been fed food prohibited by the Regulations”. Miss Demetriou submitted that the claim must therefore fail unless the Claimants could demonstrate that this up-to-date view of the Defendant in the light of the fresh evidence could be said to be irrational.

I might have accepted that submission if there had been any evidence that a properly authorised inspector had carried out, in a fair, open-minded and comprehensive manner, a genuine review of the case in the light of all the evidence that has emerged since the 28^th March 2003. There is no evidence that such a review has been carried out. Firstly, there is no indication that Mr. Dunn, or any other inspector, has been involved in the decision making process since 29^th August 2003. Although the revocation notice of that date was signed by Mr. Frost, Mr. Dunn’s Witness Statement explains that he did so during Mr. Dunn’s absence on leave and following Mr. Dunn’s “consideration and assessment that such action was appropriate”. No documents have been disclosed relating to Mr. Dunn’s consideration and assessment at that time, so it is not possible to ascertain the basis upon which he was so satisfied. There is nothing to indicate that Mr. Dunn, or any other inspector has considered Mr. Church’s reports.

Secondly, there is a world of difference between carrying out a genuinely open-minded review, and striving to defend an earlier decision in the context of adversarial litigation. Reading Mr. Smith’s evidence as a whole leaves me in no doubt that it is the latter, rather than the former, exercise that has been carried out by officials on behalf of the Defendant in these proceedings. I have reached this conclusion for the following reasons:

Standing back, and looking overall at Defra’s reaction to the evidence as it began to emerge once the Claimants had been given some information (in the letter dated 28^th March 2003) about the case against them, one is driven to the conclusion that those involved in the decision making process proceeded upon the basis of a pre-conception: that the Claimants had been part of a conspiracy to feed prohibited feedstuffs to cattle, including their own herd. Evidence which supported that pre-conception was overstated, and continued to be relied upon despite emerging doubts as to its reliability, and any evidence which tended to point in the opposite direction was either ignored or downplayed. Given the grave danger posed by BSE there can be no dispute that a precautionary approach is justified, but such an approach still requires an inspector to assess all the available information in a fair and balanced way when he is considering whether he has reasonable grounds for supposing. That has not been done in Defra’s reconsideration of the matter during the course of these proceedings. A genuinely open minded review of the case in the light of all the evidence now available is required. What remains of the case as set out in the letter dated 28^th March 2003 now that explanations have been provided, errors have been corrected, and the test results challenged? It is difficult to see how Mr. Reaney’s test results alone, in the absence of other information suggesting unlawful feeding, could provide the basis for a reasonable suspicion that there had been deliberate feeding of the Claimants’ herd.

In his Second Witness Statement Mr. Smith stated that the continuance of the stamped passport arrangement would be reviewed in the light of any new evidence being brought to the attention of the Defendant. He said that the assessment of Mr. Church’s expert reports was an example of such a review process. While Mr. Reaney has responded to a number of the questions raised by Mr. Church, the reasons why Defra has not changed its view in the light of Mr. Church’s reports are explained in Mr. Smith’s evidence. Miss Gough submitted that Mr. Smith’s evidence, insofar as it responded to Mr. Church’s reports was not admissible. Mr Smith was giving opinion evidence when he was not qualified as an expert to do so, and his Witness Statement was in breach of the requirements of the CPR relating to expert evidence. Miss Demetriou submitted that Mr. Smith’s evidence was factual: he had merely set out the reasons why the Defendant originally reached, and thereafter maintained her decision.

I indicated that while I would not treat any part of Mr. Smith’s evidence as inadmissible, I did have serious doubts about the weight which could properly be given to his comments upon, and criticisms of, Mr. Church’s evidence. His qualifications to make such comments and criticisms are by no means apparent from his Witness Statement. This problem lies at the heart of the Defendant’s evidence in this case. It is common ground (see para. 12 above) that the decisions to maintain the MRN in force, and to replace it with the stamping of the cattle passports, had to be taken by a properly qualified inspector. Yet there is no evidence from the Defendant as to what part, if any, was played by Mr. Dunn, or any other inspector in the letter dated 28^th March 2003, or in the reconsideration of the case in the light of the Claimants’ evidence.

Even the precise extent of Mr. Dunn’s role in the decision to serve the MRN on the 7^th January 2003, and the revocation notice on 29^th August 2003 is far from clear. His fax dated 6^th January merely stated that he had been “requested to serve a new notice on you by Head Office”. From Mr. Dunn’s Witness Statement it appears that he considered the merits of serving the revocation notice, and Mr. Frost merely signed the notice on his behalf, whilst he (Mr. Dunn) was on leave. However, Mr. Dunn also confirms Mr. Smith’s Second Witness Statement which states that Mr. Dunn’s “colleague, Mr. Frost, in the light of the stamped passports accordingly felt able to revoke the MRN in favour of the new arrangement”. Apart from the revocation notice itself, which does not indicate that it is signed by Mr. Frost on behalf of Mr. Dunn, no documents relating to this decision have been disclosed by the Defendant. If there is a clear chain of responsibility within Defra for ensuring that only those authorised to do so under the Principal Regulations make and review MRNs it has not been demonstrated in the evidence submitted on behalf of the Defendant.

One of the functions of any review procedure must be to give some degree of reassurance to the person aggrieved by the initial decision that there will be a genuine reconsideration of his case. I use the words “some degree of reassurance” because it is always difficult in any internal process of review to dispel the suspicion, however unfounded, that officials within the same department will simply “close ranks” with their colleagues and strive to uphold the earlier decision. Any internal process of review should seek to dispel such suspicions, so far as possible. Without intending to be prescriptive, I would suggest that the Defendant give consideration to the review procedures adopted by other public bodies, including local authorities and other government departments. Such procedures commonly involve a review by another (and preferably more senior) official who has not been connected (or at least not directly connected) with the decision under review. To ensure transparency, the person seeking the review must be told what material will be considered by the reviewing official, and be given an opportunity to comment upon it. In the present case, the Claimants should be given an opportunity to respond to a clear and comprehensive statement of the “reasonable grounds for supposing” now relied upon by the responsible inspector. Any documentary evidence relied upon in the review should also be disclosed to the Claimants.

I would emphasise the fact that the Claimants do not allege bad faith or abuse of public office. I do not suggest that those who have been involved in the decision making process, including Mr. Smith and Mr. Dunn, would conduct a review in anything other than a conscientious manner, but it would not be realistic to expect the Claimants to have confidence in the fairness of the review process if it was conducted, e.g. by an official who had suspected them of bringing the six bags of pet food to Flintstones Farm in order to feed them to their herd in the autumn. In fairness to both parties, it is essential that a fresh mind is brought to bear on this case. These observations are made in the context of this particular case, and the very grave suspicions of the Claimants that have been expressed by those officials who have been involved in the process of responding to the Claim for Judicial Review. A more informal process may well be appropriate for other reviews, e.g. where there is no real dispute as to the facts, or as to whether circumstances have or have not changed so as to justify suspension, amendment or revocation of a MRN.

In criticising the procedural fairness of the decision making process adopted by Defra, I am conscious of the fact that the power conferred by regulation 29A was not available until December 2002. Thus, Defra was attempting to exercise a new power to the best of its ability. I express the hope that in the light of its experience in the present case Defra will develop procedures which will protect the interests of persons such as the Claimants who have been served with a MRN, whilst at the same time fulfilling the Defendant’s responsibilities to the public. I would suggest that such procedures should at the very least ensure that:

Miss Demetriou conceded that the cattle passport stamping arrangements introduced on 29^th August 2003 stood or fell with the Defendant’s decision to maintain the MRN in force until it could be replaced with those arrangements. It is therefore unnecessary for me to consider whether there is any legal basis for the Defendant’s decision to stamp the passports of the Claimants’ herd:

“Not for human consumption. Animal exposed to mammalian protein”

The Principal Regulations (as amended) do not contain any power to place such a stamp on cattle passports, and there is no explicit power to do so in the Cattle Identification Regulations 1998. Both sets of Regulations provide a comprehensive and detailed statutory code. It must therefore be open to question whether there can be an implied power to make the arrangements which were introduced on 29^th August 2003. Since I did not hear submissions on this issue, I express no view as to whether the Defendant had power to stamp the Claimants’ cattle passports. I merely suggest that as part of her comprehensive review of this case the Defendant should give careful consideration to the question whether there is any (and if so what) legal justification for the stamping arrangements.

For the reasons set out above this application succeeds on the ground of procedural unfairness. The Claim Form sought a Quashing Order in respect of the MRN and a Mandatory Order requiring the Defendant to reconsider the matter. Since the MRN has been revoked and the Defendant has accepted that she is under a duty to keep the cattle stamping arrangements under review neither a Quashing Order not a Mandatory Order is necessary. I will hear submissions as to whether any specific declaratory relief would be appropriate. The parties may feel that the terms of this judgement will suffice. Although the Claim Form and Miss Gough’s Skeleton Argument mentioned a claim for damages, she was not able to identify any cause of action and I therefore indicated during the course of submissions that I would not be able to award damages in these proceedings to the Claimants even though they have suffered substantial financial loss.