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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Shepherd v Scottish Ministers For Judicial Review [2001] ScotCS 102 (1 May 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/102.html Cite as: [2001] ScotCS 102

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The Animal Health Act 1981 (c. 22) provides :

"31. Schedule 3 to this Act has effect as to the slaughter of animals in relation to -

...(c) foot-and-mouth disease;...

Schedule 3

Power to Slaughter in Relation to Certain Diseases

...

Foot-and-mouth disease

3.(1) The Minister may, if he thinks fit, in any case cause to be slaughtered -

(a) any animals affected with foot-and-mouth disease, or suspected of being so affected; and

(b) any animals which are or have been in the same field, shed, or other place, or in the same herd or flock, or otherwise in contact with animals affected with foot-and-mouth disease, or which appear to the Minister to have been in any way exposed to the infection of foot-and-mouth disease.

(2) The Minister shall for animals slaughtered under this paragraph pay compensation as follows -

(a) where the animal slaughtered was affected by foot-and-mouth disease the compensation shall be the value of the animal immediately before it became so affected;

(b) in every other case the compensation shall be the value of the animal immediately before it was slaughtered."

The Foot-and-Mouth Disease Order 1983 (SI 1950) makes provision for a variety of measures designed to prevent the spread of a foot-and-mouth disease outbreak including compulsory notification requirements, designation of infected areas, restrictions within such areas, and cleansing and disinfecting premises and vehicles. Clause 13 provides :

"(1)...an inspector may, where he has reasonable grounds for suspecting that an animal has been exposed to the infection of disease, forthwith serve a notice in Form D on the occupier of the premises where the animal is situated."

The Notice specifies the restrictions to apply to the premises and the animals on them. The Order does not deal with powers to order the slaughter of animals. These powers are simply those general ones given to the Minister in terms of the 1981 Act.

Article 1 of the First Protocol to the Convention provides :

"Every...person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law..."

This case has as its background the outbreak of foot and mouth disease in the United Kingdom. The outbreak has spread to certain particular areas, notably Cumbria in the North of England. The disease is highly infectious and it is thought that it can be transmitted through animal, human, mechanical or air borne transfer. Expert advice given to the respondents has advised in particular upon the necessity, to avoid the spread of the disease, of slaughtering livestock on farms especially those contiguous to those with confirmed infected beasts or within three kilometres of farms with such beasts.

The petitioner farms 555 acres of land at Strathnaver and Strathtongue in Sutherland upon which he stocks 350 sheep and 79 cows. There is nothing special about the stock albeit that the petitioner has a degree of sentimental attachment to it. Sutherland has no known foot and mouth disease as yet. The petitioner also owns a farm in Cumbria, as does his brother. On 4^th April 2001, he visited his brother in Cumbria and went to his house, said to be some 50 metres from his brother's farm. At the time, foot-and-mouth disease was widespread in Cumbria although it had not been confirmed on the particular farm. The petitioner stayed with his brother until 6^th April when he went to the Carlisle Animal Market. There, his vehicle was disinfected and he was required to go through a footbath of disinfectant. On 9^th April, the Cumbrian farms were diagnosed as having foot and mouth disease. The petitioner informed the respondents of this and of his visit.

On Thursday12^th April, the respondents served upon the petitioner a Form D Notice. The petitioner understood that his livestock would be monitored for an appropriate period to see if the disease appeared. Over the next two days, there were discussions between the respondents' officials on the appropriate course of action. On Saturday 14^th April, the respondents advised the petitioner that his livestock would be slaughtered on the morning of Wednesday 18^th April. It seems that a further Form D Notice was served the following day when an official of the respondents called at the farm. This Notice stated the reasons for the action being taken as follows :

"1. Visit to brother's farm over the period 1-6 April 2001. This farm was confirmed as Foot-and-Mouth Disease infected premises on 9 April 2001. The disease was considered to have been present for at least eight days. An epidemiological study of the circumstances has been carried out. Veterinary opinion is that the bio-security at brother's premises is not considered to be good. Personal contact with persons working with affected animals is recognised as a route of disease transmission. Virus would be present in the home of the person working with affected animals.

2. Sutherland is very northerly in the Provisionally Free Area (PFA) in Scotland. There is no known disease in Sutherland. The risk of introducing disease into the PFA via the animals being cared for by Mr C Shepherd has been assessed by a Veterinary Officer and is medium to high risk. Many animals could become infected via the common grazings before clinical signs become evident."

It would seem that the petitioner made certain representations about the decision to slaughter the livestock because a letter dated 16^th April was sent to him with the heading "Appeal Against Cull of Livestock". In this letter, the respondents, through their official Mr. W.L. Gardner (assistant chief veterinary officer) explained the reasons for the decision as follows:

"Foot and Mouth disease is a highly contagious disease. The strain responsible for the present epidemic is known to be particularly virulent. Key methods of transmission in this epidemic have been through animal, human, mechanical or air borne transfer between neighbouring farms. Infected animals can shed virus and infect others for some days before they are visibly ill.

In the light of this epidemiological background it is believed that susceptible animals on farms where there has been known person to person contact with infected animals posses a risk of disease transmission. Such animals when identified are classified as dangerous contacts and the premises where they are kept are restricted under a Form D notice. Subsequently or simultaneously a Form A notice is served and the susceptible animals are slaughtered as soon as possible.

Following a veterinary risk assessment your livestock have been classified as dangerous contacts which require to be slaughtered to minimise the risk of infection to other livestock in the Provisionally Fee Area. I know that Mr Mellor, Divisional Veterinary Manager, visited you yesterday to explain this and to serve a Form D notice which sets out the reasons for this action being taken...

You will appreciate that our overriding priority is that FMD is stamped out and his requires prompt action on infected premises and those at risk."

I should add that, although not founded upon by the respondents as having prompted the Form D Notice, the petitioner had apparently paid a second visit to his brother's farm from 9^th to 10^th April.

1. Petitioner

The case came before me for interim orders suspending the operation of the Notice and the order to slaughter shortly after midnight on the morning of 18^th April. The petition featured two pleas-in-law. The first was based on the proposition that the proposed slaughter was contrary to article 1 of the First Protocol. The second was to the effect that, in any event, the deprivation of the petitioner's property was disproportionate to the aim being pursued. Counsel maintained that he had pled a prima facie case. However, counsel was aware that I had heard detailed submissions upon the effect of the First Protocol on Form D Notices and orders for slaughter in a case determined on the previous day (Westerhall Farms v The Scottish Ministers). In that case, I had determined that no prima facie case for a breach of the First Protocol had been made out as a generality in respect of such Notices and Orders given that: (a) the orders were warranted by law; (b) they purported to be for reasons in the public interest; and (c) compensation consisting of the full value of the animals was payable. In these circumstances, counsel focussed on the proportionality argument and the issue of balance of convenience.

The petitioner submitted that it was for the respondents to demonstrate that they had good reason to deprive the petitioner of his livestock, that is to say that the orders were a proportionate response to the perceived threat to the public interest (The Former King of Greece v Greece (application no. 25701/94), 23^rd November 2000; Beyeler v Italy (application no. 33202/96), 5^th January 2000; Chassagnou v France (applications nos. 25088/94, 28331/95 and 28443/95), 29^th April 1999). The petitioner stressed first that the risk of the infection spreading to his livestock was remote. He had not actually gone on to his brother's farm but only to his house. Therefore the route of infection would have to have been from the animals of his brother's farm, through his brother to him either directly or through transmission in or around his brother's house and then from the petitioner to his own livestock in Sutherland. The petitioner pointed out that neither Sutherland nor Cumbria were closed to the public and that there might be many who, like the petitioner, had visited both. He referred also to potential dangers being caused by fumes from the fires used to burn the many rotting carcasses in the infected areas.

Secondly, the petitioner maintained that the relevant period of incubation for the disease was fourteen days. That period would expire on 20^th April, only two days hence. If no clinical signs were present by then, the livestock could be assumed to be free of the disease. It was not reasonable to slaughter the animals in circumstances where it could be determined in two days whether they had the disease or not. At present, whether the animals might have the disease was purely speculative whereas the proposed action would be final so far as the petitioner's stock was concerned. It could not be said that the respondents' action was proportionate in these circumstances. In such circumstances, the balance of convenience favoured the petitioner. On the one hand there was a speculative risk and a current situation in which no actual infection had been proved to exist. On the other hand there was the irreversible slaughter of the petitioner's stock which, it was said, would cause him such distress that he might feel that he should give up the farm in Sutherland.

2. Respondents

The essence of the respondents reply was that the actions of the petitioner in visiting an area where the disease was known to exist had put his, and his neighbours', livestock at risk and the respondents' actions were proportionate to that risk. The respondents had been trying to contain the various outbreaks by culling stock where appropriate in terms of expert advice. However, there had been instances where the infection had spread apparently as a result of indirect personal contact, that is to say the type of situation such as arose here where the person transmitting the disease had been in contact not directly with infected animals or their fields but with someone who had had such contact. This indirect contact had the potential to permit the disease to move from an infected area to a hitherto unaffected part of the country. An outbreak in the Sutherland area would be extremely serious given that there would then be the potential for an entirely new centre of infection capable of spreading the disease throughout the area.

The fourteen day incubation period was correct in theory but, in the case of sheep, detection remained difficult even after that period. Indeed it could be up to eight weeks before infection was detected. The longer the infection was present, the more virulent it became. The veterinary advice in this case was that the petitioner's stock should be slaughtered in order to avoid the risk of creating a new centre of infection and the Court should be reluctant to reject that advice. The balance of convenience favoured following the advice.

The resolution of the case so far as relating to the interim orders depends on whether the petitioner has made out a prima facie case of disproportionate actings under article 1 of the First Protocol and, in any event, whether the balance of convenience is in his favour.

On the issue of proportionality it has been said that:

"An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights...In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions...

Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. In this connection, the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 of Protocol 1 only in exceptional circumstances..."(The Former King of Greece v Greece (supra) para. 89).

There is no doubt that the respondents' proposals involve an interference with the petitioner's possessions albeit purportedly in the public interest and subject to conditions provided for by law.

In considering whether the petitioner has made out a case that the respondents' actions are lacking proportion, it is important first to consider what is being guarded against in the public interest. The particular disease is a virulent one and stopping it is important in economic terms. Sutherland is far removed from the existing centres of the disease. Were the disease to take hold there then the results could be catastrophic for hill farming. In proposing to slaughter the petitioner's livestock, the respondents are attempting to guard against that catastrophe.

The expert veterinarian opinion seems to be that the only way in which the spread of the disease can be checked involves a substantial element of culling. That culling must be not only of infected livestock but also of livestock thought to have been exposed to such infection since otherwise the disease would be almost certain to spread beyond the culled areas. Despite the petitioner's submissions that the risk involved is a speculative one and it could soon be ascertained as a fact whether the livestock had contracted the disease, I do not feel that these arguments are strong enough for the Court to hold that the expert advice which the respondents have received should be superseded. That advice is that to avoid the risk materialising in Sutherland, the petitioner's livestock should be killed given the medium to high risk that the petitioner has transmitted the disease from Cumbria to his animals. In the absence of any substantial contrary expert material, there is little or no basis for the Court rejecting that advice. The fact that the respondents are acting upon that advice, points towards their steps being proportionate to the perceived problem. Furthermore, given that the petitioner will receive compensation amounting to the value of the animals, I am unable to hold that these steps are disproportionate. Balancing the risks involved with the potential damage to the petitioner's business which might not be so readily quantified, I am also of the view that the balance of convenience favours the slaughter proceeding. I accordingly refuse the interim orders sought.

Having determined the issue on the merits in the early hours of 18^th April, shortly after noon on that date the petitioner moved for leave to reclaim against the refusal to grant the interim orders. The ground for reclaiming was primarily that I had erred in determining that the respondents had demonstrated a prima facie case justifying their interference with the petitioner's possessions. It was illogical and irrational to order the slaughter of the petitioner's livestock simply because of his visit to Cumbria given the many other members of the public who must have done the same. The petitioner also raised what was described as the leisurely approach the respondents had taken to the slaughter given the diagnosis on the Cumbrian farms as early as 9^th April. This demonstrated, it was said, that the respondents did not regard the risk as the most serious. There was no reason why a representative sample of live animals could not be taken and the incubation period left to expire. There were important and novel issues which ought to be aired in a reclaiming motion.

The respondents resisted the motion. The slaughter of the petitioner's sheep had already started, albeit halted temporarily by the actions of a neighbour. The weather conditions were poor in the area and if the cull were halted then it might take some time before the slaughter team could be reassembled. Meantime the risk was still present. Taking of blood samples would require every animal to be tested to check for the presence of the virus. The petitioner required to show some reason why the Inner House might wish to interfere with what is essentially a discretionary decision and he had not done so.

Although in the normal case where issues of importance, such as were raised here, arise, I would be inclined to grant leave to reclaim, I do not think that such leave ought to be granted here. First, there is a continuing risk which appears to be material albeit not of the greatest. The longer that risk is allowed to exist, the more likely it is that it might materialise and cause the problems which I have already referred to. In this regard, I do not consider that the respondents have been dilatory in their response to the problem given the scale of the general problem currently existing. Secondly, the stage has now been reached where the order has been part implemented. Thirdly, although I accept that I may be held to be wrong in determining that a prima facie case has not been made out, the grant or refusal of the interim orders is essentially a matter of judicial discretion relative to the assessment of where the appropriate balance falls. I am not convinced that a substantial reason has been put forward which might persuade the Inner House to reverse the decision.