Department for the Environment, Food and Rural Affairs v Atkinson and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 09 October 2002 |
| Neutral Citation | [2002] EWHC 2028 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 October 2002 |
| Docket Number | Case No: CO/601/2002 |
[2002] EWHC 2028 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Lord Justice Brooke and
Mr Justice Bell
Case No: CO/601/2002
Kenneth Parker QC & Kassie Smith (instructed by Treasury Solicitor) for the Appellant
Simon Temple (instructed by Beaty & Co) for the First Respondent
Paul Timothy Evans (instructed by Scott Duff & Co) for the Second Respondent
This is the judgment of the court.
This is an appeal by the Department for the Environment, Food and Rural Affairs ("DEFRA") by way of case stated from the decision of justices sitting at Penrith Magistrates' Court on 9th November 2001 to acquit Brendon Atkinson and Robert Hughes of a number of offences relating to veterinary medicinal products. All the alleged offences were said to have been committed at Penrith. At the end of the prosecution case the justices held that there was no case to answer. They therefore discharged the defendants.
Mr Hughes was charged with three categories of offences:
(i) Selling by retail on 20 occasions between 13th October 1998 and 29th April 1999 veterinary medicinal products containing a substance as specified in Schedule 1 of the Medicines (Veterinary Drugs) (Prescription Only) Order 1991 ("the 1991 Order") without a prescription given by an appropriate practitioner. These alleged offences were said to contravene sections 58(2)(a) and 67 of the Medicines Act 1968 ("the 1968 Act") and the 1991 Order.
(ii) Counselling and procuring Mr Atkinson between 1st January and 29th April 1999 to have in his possession for the purpose of placing on the market veterinary medicinal products in respect of which no marketing authorisation had been granted.
(iii) Placing on the market between 1st January and 29th April 1999 veterinary medicinal products in respect of which no marketing authorisations had been granted.
The offences alleged in (ii) and (iii) above were said to contravene regulations 3 and 16 of the Marketing Authorisations for Veterinary Medicinal Products Regulations 1994 ("the 1994 Regulations") and section 2(2) of the European Communities Act 1972.
Mr Atkinson, for his part, was charged with committing offences in three similar categories of offences, in his case between 1st January and 29th April 1999. In the first category of charges he was charged with aiding and abetting Mr Hughes to commit the offences referred to in (i) above on six occasions. In the second he was charged with aiding and abetting Mr Hughes to commit the offence referred to in (iii) above. In the third he was charged with the substantive offence in relation to which Mr Hughes was charged with aiding and abetting him in (ii) above.
The case stated shows that the justices heard undisputed evidence from 13 different farmers. Eight of them said that they had obtained drugs from Mr Hughes either personally or through the post, and that they used him because he was up to 70% cheaper than their own vets. The other five said that they were in the habit of placing orders for drugs either with Mr Hughes or Mr Atkinson. They would collect their orders from Mr Atkinson's farm in person. The attraction of using this source of supply, rather than their own vet, was a similar saving of up to 70%.
It was not in dispute that all these farmers were responsible and caring towards their animals. They would never do anything to harm them. So far as they were concerned, all the drugs they bought from Mr Atkinson or Mr Hughes were the same as were supplied by their own vets. The reason why they maintained this belief was that all the drugs were in similar containers, with the same types of label, as they were familiar with. One of the farmers said that Mr Atkinson told him that the drugs were from an Irish licensed supplier and that anyone could go to Ireland and buy them legally.
The justices also received undisputed formal evidence of the search and seizure procedure at the two defendants' farms, from which all the products before the court had been seized.
Mr Haycroft, a civil servant employed in the Licensing Branch of the Veterinary Medicines Directorate, told the justices that he was involved in the administration of the "Unauthorised Products Section". He said that the matters subject to the charges did not have marketing authorisation. He was unable, however, to say that the products were actually what they claimed to be, since they had not been scientifically tested, and he would not rely only on what was written on the label.
At the end of the prosecution case the justices upheld a defence submission that there was no case to answer.
The justices found certain facts, which they expressed in the following terms:
"(a) All the exhibits produced to the court were seized at the addresses of the two respondents following authorised searches of their farms.
(b) During 1998 and 1999 both respondents were concerned in the possession and supply of like products.
(c) During the same period 13 farmers from around the country bought like products either directly from the respondent Mr Hughes, or indirectly from him through the respondent Mr Atkinson.
(d) All the exhibited products bore labels indicating that they were veterinary medicines of the type that can only be sold by prescription only or be in a person's possession if granted a marketing authorisation.
(e) Neither respondent is a veterinary surgeon or practitioner.
(f) No evidence was adduced before us to prove that the products actually contained prescription only veterinary medicines.
(g) On 24th March 1999 Mr Hughes confirmed that veterinary medicines relating to his business were recovered from his farm.
(h) On 28th April 1999 Mr Atkinson admitted in interview that; (i) he had bought prescription only medicines from Mr Hughes because he was cheaper than his vet; (ii) he knew his vet would not approve; (iii) a business relationship had then developed whereby one of his garages was used by Mr Hughes as a store for his medicines; (iv) that either Mr Hughes would come to the garage to pick up medicines, or Mr Atkinson would, deal directly with farmers; (v) he was not responsible for collecting any money himself from the farmers."
The prosecutor argued that the justices were entitled to draw reasonable inferences from the labels on the products, and since the labels were of the conventional and recognisable type, they should infer that the products contained what was stated on the labels. Similarly, the justices were entitled, it was said, to draw reasonable inferences that the products were what they purported to be from the farmers' general evidence and the extent of Mr Hughes's commercial business.
It was also argued that if any matter, irrespective of origin, was being presented for the treatment or prevention of disease in animals, it was a veterinary medicine regardless of its precise chemistry. If it did not have marketing authorisation, then an offence under regulations 3 and 16 of the 1994 Regulations was committed. The justices' attention was drawn in this context to Article 1 of Council Directive 65/65/EEC and Article 1 of Council Directive 81/851/EEC. The prosecutor argued that he had done sufficient to establish the primary facts and that he had produced enough evidence for the justices to say that there was a case to answer.
The defendants argued that only a scientific analysis of the contents of the products was admissible as prima facie evidence of those contents, and that the statement on the label had to be proved by admissible evidence if it was to be relied upon to found an offence. The prosecution had adduced no evidence to prove the statement on the label, which by itself was hearsay in any event. It was argued that the prosecution had to prove that the products contained prescription only medicines and were veterinary medicinal products, but their own expert witness had said he could not be sure as to the contents.
In these circumstances it was submitted that knowledge of the actual contents of the bottles was vital when considering whether the regulations and/or the directions and/or the exemptions applied, and that in the absence of analysis it was impossible to say. The prosecutor had conceded that there was no evidence on the question whether the exemptions applied or not. It was said to be an essential element of the prosecution case to prove the contents of the products. Because no scientific analysis had been done, the court could not be satisfied that this essential element had been proved. The prosecution had therefore failed to establish a prima facie case.
The justices' reasons for upholding the defence submission that there was no case to answer were set out in these terms:
(a) The court is entitled to the best evidence available to assist in its decision-making. The best evidence in this case would be the scientific analysis of the contents of the products produced. That is what happens in controlled drugs and excess alcohol cases.
(b) When products are bought by prescription in a controlled environment, then it is safe to infer that they contain what is stated on the label. However, products bought by unconventional methods at reduced prices are usually of a lesser quality and sometimes counterfeit. We do not believe it is safe to draw the same inference in these circumstances. The labelling is no more than hearsay and does not prove the contents are as described.
(c) We do not believe it is safe to infer that...
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City of Sunderland Council v Dawson
...made. If that section was not clear enough, this court, in Department for the Environment, Food and Rural Affairs (DEFRA) v Atkinson [2002] EWHC 2028 Admin, had to consider its application in relation to the very point that has arisen in this case. In that case, the defendant was charged wi......