R K and Ac Jackson & Son v Department for the Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice McCombe |
| Judgment Date | 14 April 2011 |
| Neutral Citation | [2011] EWHC 956 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 April 2011 |
| Docket Number | Case No: CO/9035/2010 |
[2011] EWHC 956 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice McCombe
Case No: CO/9035/2010
Daniel STILITZ QC (instructed by Barker Gotelee) for the Claimants
Julie ANDERSON (instructed by DEFRA Law & Corporate Services) for the Defendant
Hearing dates: 17th/18th March 2011 & 28th/29th March 2011
(A)Introduction
This is an application for judicial review of a decision by the defendant ("DEFRA"), said in the Claim Form to have been made on "29.7.10", to direct the slaughter of a pedigree bull owned by the claimants ("Jacksons") and called "Hallmark Boxster" ("Boxster"). The decision was taken as a result of a positive bovine tuberculosis test said to have been obtained from a blood sample or samples taken from the animal at Jacksons' farm on 7 April 2010. The decisions are perhaps more fully described as being communicated to Jacksons by notices of intended slaughter, given on 13 April and 29 July 2010, under paragraph 4 of the Tuberculosis (England) Order 2007, an Order made under powers contained in the Animal Health Act 1981. Jacksons apply for orders quashing those notices and mandatory orders for re-testing. Permission to apply for review was given by an order of Mr Rabinder Singh QC (sitting as a Deputy Judge of this court) on 27 January 2011.
The grounds of the application are (i) that DEFRA relied on a bovine tuberculosis ("bTB") test produced on the basis of a sample taken in a manner not compliant with its own operating procedure; (ii) it failed to follow its own policy of re-testing when the initial test had not been carried out properly; and (iii) it interfered with Jacksons' right to peaceful enjoyment of their possessions under Article 1 of the First Protocol of the European Convention on Human Rights, in that it determined upon the slaughter of Boxster "without proper, and self-imposed, procedural safeguards to check that the interference with that right was justified".
Jacksons' complaint in short is that, when samples of blood were taken from Boxster for the purpose of testing for bTB, two separate samples were pooled/mixed together by the sampling technician to achieve the required quantity of blood for the laboratory, contrary to the practice indicated by the operating manual of DEFRA's relevant agency, "Animal Health", which states, "…Please do not decant from one tube to another in the field because of contamination problems". A review of DEFRA's testing policy of July 2009 (updated in September 2009) further states that, "standing policy is to re-test animals only when there is evidence that any diagnostic test has not been carried out properly". Jacksons contend, therefore, that the mixture of Boxster's samples in the field constitutes "evidence that the diagnostic test has not been carried out properly" (within the meaning of this document) and that DEFRA's refusal to re-test amounted, therefore, to a breach of its policy, rendering flawed the decision to issue the notices.
There are various legal issues arising in the case to which I will turn hereafter. However, underlying the whole matter is a dispute of fact as to whether there was any mixing of samples from Boxster at all. On giving permission to apply, Mr Rabinder Singh QC made an order giving permission to the parties to cross-examine witnesses of fact only, such cross-examination to be confined to the question of what happened on 7 April 2010 when blood samples were obtained from animals at Jacksons' farm. The order identified the witnesses concerned. The order seems to have been made at the time without significant opposition from DEFRA. The order was never appealed. It seems to me that that was the moment at which objection to the principle of the hearing of oral evidence ought to have been taken and fully argued.
At the opening of the hearing, however, Miss Anderson for DEFRA objected that the hearing of evidence was immaterial to the outcome of the case and should not, therefore, proceed. I heard short submissions on the point from both counsel, Mr Stilitz QC for the Jacksons contending that the factual dispute went to underlying procedural irregularity and was at the heart of the dispute; the breach of procedure, he said, undermined the basis of DEFRA's decisions.
In the end, in a short judgment given on the first morning of the hearing, the majority of the witnesses having attended, I decided to allow the cross-examination to proceed and decided that I would resolve the issue of fact, without prejudice to either party's contentions as to the consequences of any such finding and to whether the finding had any bearing upon the proper outcome of the claim.
It was decided at that stage that, having heard the evidence and the parties' submissions on the factual issue, I should announce my decision on the matter giving my full reasons for that decision in the final judgment after hearing all the arguments on the other points arising. Both parties agreed to this course. The factual issue, therefore, is the first matter to be dealt with in this judgment. My decision (set out in paragraph 8 immediately below) was communicated to the parties on 25 March 2011 in anticipation of the resumed hearing on 28 March.
(B) The Factual Issue – were Boxster's samples mixed ?
My finding is that Boxster's samples were mixed on site. My reasons are as follows.
The witnesses who gave evidence on this issue were Mrs Catherine McNeil, (the daughter of Mr Kendall Jackson and Mrs Anita Jackson, the owners of the farm – "Mr Jackson" and "Mrs Jackson" respectively), Mr and Mrs Jackson themselves, Mr Melvin Burrows and Mr John Davison, on behalf of Jacksons, and H.K and S.T., on behalf of DEFRA.
Jacksons' witnesses gave evidence that the scene at the farm was this. In preparation for the testing, Boxster was halter-tied at the "bottom" end of the yard, close to the crush pen where most of the other animals were to be tested later that day. Immediately next to Boxster was another cow, his constant companion, "Katherine" or "Katie", a fellow show animal. A third animal, called "Nectarine", say Jacksons' witnesses, was tethered at a little distance from the other two on the other side of the "crush pen" from them. They say that she was tied there because she was an old, quiet cow and they did not wish her to be knocked around in the crush pen. A further four animals, they say, were tethered at the "top" of the yard.
The positioning of these animals, according to these witnesses is depicted on a plan exhibited to the second witness statement of Mrs McNeil, a copy of which is annexed to this judgment. A confusing feature of the evidence was that what the witnesses called the "top" of the yard is shown at the bottom of this plan and vice versa.
Jacksons' witnesses say that Boxster and Katie, which are pedigree show animals, had been kept in isolation from the rest of their herd after initial positive bTB tests had resulted in March 2010. Jacksons wished to establish that isolation status for those animals to DEFRA's satisfaction. Mr Burrows gave evidence that he helped Mr Jackson and Mrs McNeil to prepare the crush area on the morning in question; then he and Mr Jackson went to the isolation pen to fetch Boxster and Katie and duly tethered them to the positions indicated on the plan. Jacksons' evidence is that the four other animals tethered at the other end of the yard included Vi (a large cow) and Vinnie, a bull.
In contrast, DEFRA's witnesses say that three animals only were tethered at the "top" of the yard, two bulls (Vinnie and Boxster) and a cow, the cow being Nectarine, not Katie. H.K says that they were told that these three animals were calm and that blood could be taken from them without needing to put them through the "crush". She says that the animals were introduced to her as "Nectarine", "Vinnie" and Boxster". She says that it was not possible to get round the front of these animals to read the ear tags, while the samples were taken, and that therefore their names were used initially on the sample record sheet, adding the precise identification codes later for the two animals that she says were tested at that stage, namely Nectarine and Boxster.
DEFRA's witnesses say that H.K first took blood from Nectarine. She then moved on to Vinnie who immediately jumped sideways when the needle was inserted. This damaged the equipment and caused them to abandon Vinnie's test for the moment. She says that they then moved to Boxster and obtained a single full sample on the first attempt. H.K pinpoints this test by reference to a remark that she said was made by Mrs McNeil at the time about Boxster having had a grass reaction at a show, causing one of his eyes to close.
Jacksons' witnesses say that the sampling process was quite different. I have already mentioned the differences between them and DEFRA as to the positions in which the various animals were tethered. Mr Jackson says that when the technician (H.K) started to take the sample from Boxster she did so at arm's length and seemed scared of him; Boxster was uneasy, "bawling out" and was moving about. The syringe dropped to the floor and was discarded. She then asked her assistant (S.T.) to bring another syringe. S.T. came round from her position on the other side of the crush pen but failed to bring a new syringe, apparently not having heard...
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