DEFRA Methods Put to the Test
I am pleased to say that I was unduly pessimistic as to the chances of success in the case of R (on the application of K and AC Jackson and Son) v DEFRA and for once the High Court in the person of Mr Justice McCombe has really stood up for the farmer. My previous cases on similar facts had lead me to believe that the chances were slim.
The case of Jackson concerns Boxster the pedigree bull who had positive bovine tuberculosis (“bTb”) tests in April and July 2010. The Jacksons were ordered to arrange for the slaughter of the bull. They were naturally very worried about losing their valuable breeding animal and applied for judicial review of the notices. They claimed in their application that DEFRA had:
- relied on a bTb test produced on the basis of a sample taken in a manner not compliant with its own operating procedure;
- failed to follow its own policy of re-testing when the initial test had not been carried out properly; and
- interfered with their claimants’ 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”.
In deciding the case the judge did not find it necessary to consider the Human Rights Act claim since he decided the case on traditional English judicial review grounds. Surprisingly but helpfully he also allowed the claimants to call evidence from live witnesses on issues of fact about how the test had been carried out.
The normal rule when bringing a Judicial Review is that the Administrative Court will deal with the case on paper only and not allow live witnesses to give evidence or see them cross examined . The Judge decided in Jackson that, where there is a procedural challenge, and there is a stark dispute of fact as to the procedure actually adopted, there was, in the judge’s words:-
“no alternative but for the court to resolve the issue of fact in order to adjudicate upon the challenge.”
The dispute in question was over whether the sampling had been done in such a way as to risk contamination. The Jacksons argued that this factual issue went to underlying procedural irregularity that they were challenging. They said that mixing of Boxster’s blood samples, (as appears to have happened) contravened DEFRA’s established practice as to how the sampling process should be carried out, giving rise to “evidence that a diagnostic test has not been carried out properly” and requiring DEFRA to engage its “standard policy” to re-test. The fact of the contamination was therefore at the heart of the dispute.
McCombe J decided to allow the cross-examination to proceed so that he could resolve the issue of fact and found that issue in the claimants’ favour. He reached the conclusion that Boxster’s samples had been improperly mixed without the assistance of expert evidence, even though the defendants argued that the laboratory testing of Boxster’s sample revealed no contamination. He found that this dispute as to whether contamination would in fact have been detected by the controls was not able to be resolved on the evidence available, particularly in the absence of cross-examination of the scientists.
He went on to find that the question of improper sampling, and DEFRA’s policy of not assuming bTb infection if there is reason to doubt that the test has been properly carried out, constituted a species of legitimate expectation that the claimants could rely on in these proceedings.
DEFRA clearly realised that they were on a sticky wicket and to run their case contended that mere failure to follow policy was “not enough to show unlawfulness and causation is required”. In this case, they said, it was “plain” that if the policy had applied the outcome would have been the same (meaning, presumably, that the animal on retesting would have shown positive results for bTb). DEFRA also tried to rely on the requirement imposed in Article 15 of the relevant EU Directive 78/52/EEC that requires member states to ensure that,
“…following a bacteriological, pathological or tuberculin examination, animals in which the presence of tuberculosis has been officially established and those considered by the competent authorities to be infected are slaughtered”
Not entirely surprisingly, the Judge disagreed since the argument raised the question of when “the presence of tuberculosis has been officially established”. No matter how imperative the EU direction, it amounts to nothing if there is reason to doubt that the test is “valid”, since flawed test procedures cannot determine whether the disease is “officially established. The Judge found that the way the tests were carried out by DEFRA were flawed and the infection had not been established as EU law required.
The practical advice for livestock farmers which comes out of this case is that farmers who think that a bTb test has been carried out wrongly or has resulted in a test result which is wrong need to before hand to have obtained the evidence of irregularity in the testing process if they are to have any chance of setting the test aside. In this case the mixing of samples was crucial.