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4th July 2001


Mary Marshall,




Dear Mary,


You have asked me whether there are lessons to be learned from the Grunty case (MAFF/DEFRA v. Upton) and the judgment of Mr. Justice Harrison given on 21.6.01. As you know, I represented the owner in that case. I understand that, like me, you received a copy of the official transcript of that decision yesterday.


I think there are valuable lessons to be learned. I shall try to set them out as succinctly as possible below.


I stress at the outset, however, that what follows are my general views and provide general guidance only. Each case has to be considered on its own facts and it is very important that any person threatened with a cull of his or her animals takes a solicitor's advice immediately. Burges Salmon have built up very considerable expertise in this area and have indicated a willingness to assist farmers faced with such threats.




  1. The Judge said at the end of his judgment that his decision should not be taken to have any wider importance than a decision which related to the particular circumstances of the case. This is clearly a limiting consideration when one comes to analyse the significance of the judgment. That said, as I shall endeavour to explain below, the fact that the Judge took the approach he did to the issues raised in the case may be very influential in future cases.


  1. I note in passing that the Ministry has sought to apply generally the judgments given in its favour by Mr. Justice Mitting in the Winslade and Jordan cases (very questionable though those decisions in my view are, for the reasons given below). Those judgments were equally, if not more, particular to their own special facts. The Ministry cannot apply the doctrine of precedent when it suits them, but not when it does not.


The Grunty case


  1. The Grunty case was not just about Grunty: it was about 11 sheep as well (10 of which have rare breed status). The decision does not depend on Grunty's celebrity status: in the eyes of the law Grunty was just a pig like any other.


  1. The case was a case of an alleged 'dangerous contact'. The animals' owner had been exposed to the fmd virus on several occasions at two other holdings, and had returned to her home farm, where Grunty and the 11 sheep were kept. Her animals on all her other holdings had been slaughtered, either as infected animals or as 'dangerous contacts'.


  1. The issue for the Court was whether there had been 'contact'; whether the animals had otherwise been exposed to the virus; and whether the animals, even if all infected, represented a danger to any livestock on neighbouring holdings.


  1. The animals' owner said she had not had any physical contact with those animals for several weeks - others had been attending to their limited needs. The Ministry did not believe her. The Ministry's attitude was that it applies a strong presumption that there has been the necessary contact where two sets of premises holding livestock are connected through a particular person; and that if the owner says there has been no contact at the vulnerable premises the Ministry is unlikely to believe him or her.


  1. The Ministry was very keen to slaughter all Mrs. Upton's remaining animals quickly. There was an ugly stand-off at the farm gates on Saturday 16th June, with the Ministry cull team backed up by the police and the army threatening to vault over the padlocked gate and push past the owner and her land agent who were refusing them access. In the end, after 4 1/2 hours and with the threat of a telephone application for an injunction about to be implemented on Mrs. Upton's behalf, the assembled personnel withdrew.


  1. Early in the following week the Ministry applied for an injunction to restrain any interference by Mrs Upton (or anyone else) with their entry to the premises to slaughter the animals and remove their carcasses. The Ministry's lawyers pressed for a speedy hearing before Mrs Upton had been able to assemble all her evidence in answer to the Ministry's evidence, and refused a request for an adjournment, saying that their instructions to do so had come "from the top". Mrs Upton applied for an adjournment nonetheless, and this was granted. 24 hours later the hearing proper began, and lasted 1 1/2 days.


  1. At the end of the hearing the Judge refused to grant the Ministry the injunctions they sought and awarded Mrs Upton her costs of the application. The detailed reasons are set out in the transcript you have. In short, the Ministry failed to show to the Judge's satisfaction that there was a plausible means whereby the virus could have infected the animals in question, and in any event the Judge was satisfied that even if infected the animals posed no risk to any neighbouring livestock (the closest were at least 200 yards away). In his judgment the Judge said that the proportionate response was not to cull the animals but to monitor them and blood-test them.


  1. The proof of the wisdom of that judgment is in the subsequent monitoring and the testing: to date the animals have not been found to have been infected with the fmd virus, even though all possible incubation periods have now expired.


  1. The Judge was taken through the two seminal articles which appeared in the Veterinary Record in May 2001, of which Dr. Alex Donaldson was a co-author. I took the copies of these from a website to which you drew my attention, and I am very grateful to you for that. Those articles concern the transmissibility of the current UK strain of the virus, and contain the results of careful experiments carried out with that strain. Dr Donaldson is employed at Pirbright and I believe is one of the directors there; he is one of the leading veterinary experts on fmd in the world. You may have noticed in the Channel 4 Dispatches programme last night that Dr. Donaldson was one of the first vets to visit the abbatoir in Essex where the disease was discovered. The research was sponsored by the Ministry itself.


  1. The Judge was also taken through a report which Dr. Keith Sumption had prepared for Mrs Upton which relied heavily on the science contained in the Donaldson articles. Dr. Sumption is a Lecturer in International Animal Health at the Centre for Tropical Veterinary Medicine, University of Edinburgh .


  1. Dr. Sumption's views were supported by Professor Ellwood (Newcastle Veterinary School), Professor Duffus (Bristol Veterinary School) and Dr. Paul Kitching (until recently a colleague of Dr. Donaldson at Pirbright).


  1. It is obvious from the transcript that those materials were hugely influential in the Judge's judgment: he describes the articles as being "from a highly respected and authoritative source"; and Dr. Sumption's report as "impressive", and one which "must demand respect". He also said that he was not impressed by the Ministry's dismissal of the two articles as "red herrings".


  1. One of the many significant pieces of evidence which emerged during the course of the hearing was that the Ministry had received those articles "in draft" before they were published. This must have happened in early May (or sooner).



Implications for other cases


  1. The Ministry has developed its own terminology for different types of case during the current outbreak, and I shall use that shorthand. I stress at the outset, however, that the shorthand does not feature in the relevant statutory provision, viz. para. 3(1) of Schedule 3 of the Animal Health Act 1981. That paragraph is set out in full at the bottom of p. 13 of the transcript. The basic question under the Act, assuming no animal to animal contact, is whether the ' vulnerable' animals "appear to the Minister to have been in any way exposed to the infection of foot-and-mouth disease".


  1. The terminology is (in the order of danger, and therefore inflexibility of approach, according to the Ministry):


(a)   an infected premises case ("IP");

(b)   a dangerous contact case ("DC");

(c)    a contiguous premises case ("CP");

(d)  a case where the farm is within 3 km of an IP ("3 km cull");

(e)   a case where the animals have to be slaughtered for welfare reasons (eg lack of food or shelter) ("welfare cull").





Infected premises


  1. The Upton reasoning may certainly have an application even as regards an IP case. Effectively, the Upton home farm was two separate units: the house and driveway which the owner had used; and the fields which she had not entered during the relevant time. The Judge's ruling recognises this. Therefore, it can be argued, the Ministry should consider before slaughtering all animals on an infected premises whether there has indeed been exposure of animals on all parts of the farm in question to the virus found in animals on one or more other parts. Whether, in other words, the farm is in reality one 'premises' or more than one 'premises'.


  1. In most cases the answer is likely to be that there has been exposure, because the same person is likely to have tended all animals wherever they are on the farm, or driven his vehicles etc. over the whole farm. But where this has not happened, and especially where the animals in question do not pose a risk to livestock on adjoining premises, the proportionate approach indicated by the Upton case should be one of monitoring and testing, rather than immediate slaughter.


  1. In this context I should point out that the second of the Donaldson articles referred to above contains a useful table of distances over which the current virus is believed capable of travelling by air, depending on the number and species of animals infected. That table is extremely useful in indicating the extent of the danger to animals on neighbouring holdings.


Dangerous Contact


  1. The Upton case was a DC case. For the reasons given in the Upton case, an assessment should be made as to whether there has truly been contact between the IP and the animals on the vulnerable premises, and whether the animals in question, even if all infected, would pose a risk to any livestock on neighbouring holdings. If the answer to the latter question is no, monitoring and testing of the vulnerable livestock is an option, especially if the answer to the former question is doubtful. It is only if the answer to both questions is yes that the Ministry should decide to slaughter.




  1. For completeness, I should make clear that the Judge in the Upton case did not find the Ministry's development of the general DC policy at a premises level unlawful. What concerned him was the rigid application of that policy.


Contiguous Premises


  1. The Donaldson articles are of great significance to CP culls. The premise behind a CP cull is that the virus has been transmitted through the air from one holding to the next (a case where the biosecurity is poor and there is a risk that animals will have poked their noses at each other through a hedge/fence is not a CP case but a DC case). The Donaldson articles suggest that the virus is likely to be excreted in sufficient quantities to infect animals on neighbouring holdings only in rare cases. If there are not infected animals in sufficient numbers on the IP, the Minister cannot reasonably believe that the animals on the CP have been exposed to the virus.


  1. If the Minister has any doubt, the proportionate response again should be monitoring and testing.


  1. The judgments of Mitting, J., on which the Ministry has been wont to place reliance are flawed because the Donaldson articles were not drawn to the Judge's attention (even though the Ministry had had those articles in draft for some time before the hearings in those cases). Nor did the Judge have the benefit of evidence from an expert such as Dr. Sumption, Professors Elwood and Duffus, or Dr. Kitching. Indeed I do not believe that any independent scientific evidence was put before the Court on those occasions.


3 km culls


  1. There is no power in the 1981 Act to create a firebreak'. The Ministry has power to slaughter only when it (reasonably) believes that the animal in question has been exposed to the fmd infection. The Ministry cannot slaughter just because it considers it would be in the best interests of animals further away if an animal-free corridor were created around an IP.


  1. Although not directly relevant to the Upton case, this issue was raised in our skeleton argument but was not commented on by the Ministry. If there had been power to create a firebreak, one would have expected that the Ministry would have been keen to draw our attention to it.


  1. The Donaldson articles do not suggest that the UK virus is likely to have been transmitted in sufficient quantities up to 3 km through the air, or anything like that distance, from infected animals (I have no idea what, if any, studies have been carried out into the transmission via the funeral pyres which were commonplace at the beginning of the outbreak).


Welfare culls


  1. Welfare culls are likely to take place at the request of the owner of the animals in question, and so do not raise the issue of the extent of the slaughter power in Schedule 3 para. 3 of the 1981 Act.


Powers of entry


  1. Finally, to revert to the Upton case, there is a very real doubt about the lawfulness of the Ministry's apparent wish to enter Mrs. Upton's premises against her wish to cull her animals, without a court order. Issues arise under the Criminal Law Act 1977 (which prohibits forcible entry without a court order), and under Articles 6 and 8, and Article 1 of Protocol 1, of the European Convention on Human Rights.


  1. Broadly speaking, the Convention provisions - which are now of direct effect throughout the UK - entitle a citizen threatened with an infringement of his private life or the destruction of his possessions by the State to a hearing before a judge in open court where the lawfulness and proportionality of the State's wishes can be ruled on after all the relevant evidence is heard, before the State's wishes are carried out (if indeed they ever are).


  1. Once again, these were issues raised in our skeleton argument in the Upton case on which the Ministry made no comment in Court.


I am sorry that this account has been so long, but I hope that it is at least clear.


Yours sincerely,


Stephen Smith QC