Errington v Wilson
| Jurisdiction | Scotland |
| Judgment Date | 16 June 1995 |
| Date | 16 June 1995 |
| Docket Number | No 56 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lord Weir
Administration of justice—Administrative law—Courts of law—Justice of the peace—Hearing before justice of the peace—Natural justice—Duty to allow cross examination—Justice requiring all questions to be put through her—Whether justice erred—Whether breach of natural justice—Food Safety Act 1990 (cap 16), sec 91
Under sec 9 of the Food Safety Act 1990 an authorised officer of the food authority is empowered to inspect any food intended for human consumption. If it appears to him that any food fails to comply with food safety requirements, he is empowered under sec 9(3) to seize the food and remove it in order to have it dealt with by a justice of the peace. The person in charge of the food is entitled to attend before the justice of the peace and, if he does so, is entitled to be heard and to call witnesses under sec 9(5)(a). The justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, is empowered to make certain orders in respect of the food under sec 9(6).
A sec 9 hearing took place before a justice of the peace in relation to 44 batches of a particular cheese produced by the petitioner, which were allegedly contaminated and unfit for human consumption. In respect of the conduct of proceedings, the justice prohibited cross examination of witnesses and any questions to witnesses were to be put through her. Counsel for the petitioner at the hearing declined to put any questions in that way to the witnesses for the food authority. The justice decided that the cheese should be disposed of or destroyed. The petitioner thereafter sought judicial review of that decision. The Lord Ordinary (Weir) reduced the decision and held that the justice had been under a duty to exercise her powers in terms of the Act in accordance with the principles of natural justice, especially as she was obliged by the statute to reach her decision on the basis of evidence. His Lordship held that there had been a denial of natural justice as the petitioners' counsel had been denied the opportunity, by cross examining the other side's witnesses, of testing the strength of their evidence. The food authority and their authorised officer reclaimed.
Held (aff judgment of Lord Weir) (1) that the principles of natural justice and the duty to act fairly were inseparable, for the principles of natural justice were designed to achieve fairness of procedure so that the concept which
underlay both expressions of duty was the same; (2) that in view of the nature of the proceedings the justice was under a duty to have regard to the principles of natural justice which, in this case, required her to allow cross examination if the proceedings were to be fair and whether or not to allow such cross examination was not a matter for her discretion; and (4) that, in this case, the matter was not a dispute about an isolated incident affecting one piece of food but related to a whole brand of product which would have direct consequences of the gravest importance for the petitioner, his business and workforce and, as there was a difference of opinion between experts on points crucial to a sound determination of the questions which the justice had to decide and the petitioner had been denied the opportunity to test the strength of the experts against him, the prejudice which resulted from the refusal to allow cross examination was self evident; and reclaiming motion refused.Opinion that averments of prejudice were not necessary to make a relevant case of breach of natural justice.
Cigaro (Glasgow) Ltd v City of Glasgow District Licensing BoardSC 1982 SC 104 commented upon.
Opinion (per the Lord President (Hope)) that the question whether a justice was acting in a judicial or in an administrative capacity might be important for some purposes but no such distinction required to be drawn in this case.
Humphrey Errington (t/a H J Errington & Co) applied to the Court of Session for a judicial review of a decision of the justice of the peace, Mrs Elizabeth Wilson, dated 3 March 1995, in which she ordered 44 batches of Lanark Blue Cheese produced by the petitioner to be destroyed or otherwise disposed of as they were unfit for human consumption. The justice of the peace, food authority for the district of Clydesdale and the authorised officer of that authority, were called in the petition as respondents.
The application for judicial review called for a first hearing before the Lord Ordinary (Weir).
At advising, on 28 April 1995, the Lord Ordinary sustained the petitioner's first plea in law and pronounced decree of reduction of the justice of the peace's decision.
The food authority and its authorised officer reclaimed.
Cases referred to:
Barrs v British Wool Marketing BoardSC 1957 SC 72
Breen v Amalgamated Engineering UnionELR [1971] 2 QB 175
Bushell v Secretary of State for the EnvironmentELR[1981] AC 75
Cigaro (Glasgow) Ltd v City of Glasgow District Licensing BoardSC 1982 SC 104
Cowe v McDougallSC 1909 SC (J) 1
Furnell v Whangarei High Schools BoardELR [1973] AC 660
McInnes v Onslow-FaneWLR [1978] 1 WLR 1520
R v Birmingham City Justices, ex parte Chris Foreigh Foods (Wholesalers) LtdWLR [1970] 1 WLR 1428
R v Board of Visitors of Hull Prison, ex parte St GermainWLR (No 2) [1979] 1 WLR 1401
R v Cornwall Quarter Sessions, ex parte KerleyWLR [1956] 1 WLR 906
R v Deputy Industrial Injuries Commissioner, ex parte MooreELR [1965] 1 QB 456
Ridge v BaldwinELRELR [1963] 1 QB 539; [1964] AC 40
Rodenhurst v Chief Constable of Grampian PoliceSC 1992 SC 1
Textbooks referred to:
de Smith, Judicial Review of Administrative Action (4th edn), p 216
Wade, Administrative Law (7th edn), p 511
The reclaiming motion called before the First Division, comprising the Lord President (Hope), Lord Allanbridge and Lord Clyde for a hearing.
At advising, on 16 June 1995—
LORD PRESIDENT (Hope).—This is a reclaiming motion by the second and third respondents against an interlocutor which the Lord Ordinary pronounced after the first hearing in a petition for judicial review. The petitioner carries on business near Carnwath under the name H J Errington & Co. His business consists in the manufacture and sale of various products including a blue veined semi-hard cheese known as Lanark Blue. He sought judicial review of a decision by the first respondent, who is a justice of the peace, that 44 batches of his Lanark Blue cheese were contaminated with listeria monocytogenes, were unfit for human consumption and should be disposed of or destroyed. The second respondents are the food authority for the District of Clydesdale in terms of sec 5 of the Food Safety Act 1990. The third respondent is an authorised officer of the second respondents for the purposes of that Act.
The decision was issued on 3 March 1995 after a hearing which took place before the justice on 24 February 1995. The petitioner sought its reduction on three grounds. The first was that there had been communings before the hearing between the justice and the solicitor for the second respondents. But nothing was made of this point at the first hearing, as the facts are still in dispute. The second was the refusal by the justice to allow the cross examination of witnesses. The third was that the justice had failed to give reasons for her decision. The Lord Ordinary held that in refusing senior counsel for the petitioner the opportunity of cross examining the second respondents' witnesses there had been a denial of natural justice. On this ground he sustained the petitioner's first plea in law and pronounced decree of reduction. He was inclined to the view, in regard to the third ground, that the justice should have given proper and adequate reasons for her decision. He also said that it would be highly desirable, in view of the complex issues involved in this case, that the services of an experienced sheriff should be sought rather than those of a lay person. The second and third respondents have challenged the Lord Ordinary on all these points in this reclaiming motion. But the principal issue is whether the justice was under a duty to allow the petitioner's counsel to cross examine the second respondents' witnesses.
Among the provisions which the 1990 Act contains in regard to food safety is the power given by sec 9 to an authorised offer of a food authority to inspect any food intended for human consumption. If it appears to him that any food fails to comply with the food safety requirements, he has power under subsec (3) of that section to seize the food and remove it in order to have it dealt with by a justice of the peace. In Scotland the expression “justice of the peace” includes a reference to the sheriff and to a magistrate: see sec 9(9)(a). Although these expressions are not further defined in the 1990 Act, it is clear that the references to a justice of the peace and to a magistrate in Scotland are references to a justice of the peace appointed under sec 9 of the District Courts (Scotland) Act 1971 and to a stipendiary magistrate appointed under sec 5 of that Act. The expression “sheriff” in relation to Scotland includes the sheriff principal: see sec 5 of and Sched 1 to the Interpretation Act 1978. Thus there is in Scotland a wide choice of persons by whom the matter may be dealt with on the application of the authorised officer.
Subsections (5) and (6) of sec 9 of the 1990 Act are in these terms: [His Lordship quoted the same as set out supra and continued:]
When the hearing took place on 24 February 1995 the petitioner was represented by senior counsel. He had with him as his witness Richard North of Leeds Metropolitan University, a food safety adviser. The second respondents were represented by a solicitor. She had with her as witnesses the third respondent, Dr J McLauchlin of the Central Public Health Laboratory, London, and Dr Ahmed, a consultant in public health medicine with...
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