Saturday Saturation

 

The repercussions of the "Grunty" case at the High Court continue to spread
out.  On the warmwell website we found this first-hand account of the legal
aspects; it's lengthy but well worth reading because there is now, at long
last, a definitive argument against contiguous culling accepted by the
judiciary:

NEW SQUARE CHAMBERS
12 NEW SQUARE
LINCOLN'S INN
LONDON
WC2A 3SW

Tel: 020 7419 8000

Fax: 020 7419 8050

E-mail:StephenSmithQC@BeechwoodFarm.co.uk


4th July 2001

Mary Marshall,

CAUSAL


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.

Generally

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.

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

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.

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'.

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.

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.

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.

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.

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.

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.

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.

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 .

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).

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_.

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

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".

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

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'.

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.

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

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.


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

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.

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

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

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.

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.

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

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

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.

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).

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


ENDS

Our comment:    fascinating stuff and confirmation of what so many of us
have argued all along.  We were particularly intrigued by the judges's
acceptance of the scientific case based largely on the Donaldson article of
May 12th in the Veterinary Record, and the barrister's note that the
ministry had drafts of this article in their possession before that date.
What neither barrister nor judge seem to appreciate is that, as you all
know, Donaldson had published much the same information more than a year ago
and had presented it to the government's scientific advisory committee at
the start of the epidemic.  His May 12th article was simply a refinement of
previous science based upon the current strain of the virus.  The clear
implication is that had this science been public knowledge at an early
stage, the judiciary would have taken due account of it and reached very
different judgements in previous cases.  So an important question for the
public inquiry to answer is - why weren't we told?

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Talking of a public inquiry, here's one method of adding your voice to the
clamour for one:



For anyone who hasn't already seen it, we have put up a new page at
http://www.cullmaff.com/elmfarm.htm  The page is self explanatory - please
go to http://www.efrc.com/fmd/signaletter.htm as instructed and sign the
on-line version if you want to see a proper full-scale public enquiry.

Thanks

Mike
http://www.cullmaff.com

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This came in from Michaela:

For who ever is interested, the main sources of reference for  the lifestyle
of a dairy cow (entitled cow no. 18 suckler for a dairy herd: being a ref.
flag for the original reader and as a tribute to said cow) were:
Andrews, A.H., Editor,  (2000), The Health of Dairy Cattle, Blackwell
Science Ltd

Russell, K., (1981), The Principles of Dairy Farming, Farm Press Ltd

Webster, J., (1993), Understanding the Dairy Cow, Blackwell Science Ltd.


You must be so relieved, but at the same time your results cannot be
unexpected.  As we all know, less than 30% of the tests of slaughtered on
signs have returned positive.  Given that the tests are set so sensitively
in order to reduce the number of false negatives, a TVI (Steve Hale) I spoke
to in Builth on Tues.. this week, suggests that only 5% of animals culled
had foot and mouth.(I am not sure whether he meant, including contiguous
culls where there is no testing).  Think about it - there is not a lot of
foot and mouth disease virus out there.

ENDS


Followed by this from Diana:


Congratulation on the good news! Do sheep like digestive
biscuits? I don't think I've ever tried them. I can't seem to get elated
about our results.There's a sort of relief, but the underlying fear is still
there. What I find hard to come to terms with is that I can promise to
protect my child, or my dog or cat, but I don't have any control over the
fate of my sheep. It just seems all wrong. Surely the only reason a
government should have to intervene would be if I was failing in my duty of
protection, just as they might if I was neglecting my child or abusing my
dog. Am I making myself clear, or am I just rambling on again?

ENDS

Our comment:   No Diana, you're not rambling, these have been our sentiments
too.  Our sincere thanks to all who have sent messages of
congratulation/relief/yippee at our blood test results, it has been a source
of strength to us all the way through to know that you have been out there
supporting us.
We understand that of the 125 people receiving these E-mails every day, some
now feel that they have seen us through to safety and perhaps would prefer
to leave foot and mouth behind and move on to other things.  If you feel
this way, that's fine, just drop us a short message to "unsubscribe" and we
will spare your Inbox our daily assault.
For our part, we intend to continue asking questions and spreading
information for the remainder of the epidemic - and that could well be for a
long time to come.


from Alan & Rosie