|JANET HUGHES' APPEAL AGAINST DENIAL OF JUDICIAL REVIEW
Report by Astrid Goddard
10.00 am. Wednesday 30 January 2002, The Civil Justice Centre, Cardiff.
Janet Hughes and a small group of supporters, entered the court, including Pat Innocent from the Forest of Dean, and Dafydd Morris, from the Council of the Welsh Highland Shepherds who believes, rightly, that Janet's actions stopped the cull in the Beacons and had it not been for her, then DEFRA would have continued to slaughter through the Beacons and into North Wales.
Picture is of Astrid Goddard, Janet Hughes and Janet's son Matthew outside the Civil Justice Centre, Cardiff.
The essence of Janet Hughes' argument was that DEFRA's decision to cull thousands of sheep on the Brecon Beacons was unlawful under the 1981 Animal Health Act. Live virus was not present in the sheep. She also argued that there were many "discrepancies" in the information given to Defra and the Welsh Assembly about the situation.
In court, Janet found herself in front of the Judge, Lord Justice Latham, with barristers from DEFRA and the Welsh Assembly seated next to her.
I was about to record the proceedings on my memo cassette recorder, but was forbidden to do so. I was asked if I was from the press, and the usher seemed unhappy about my presence. One other reporter was there, from the Press Association.
The Judge began "I've read the papers and therefore I'm familiar with the facts of the case, and it's your appeal, then, for me to grant you permission to apply for Judicial Review."
Janet presented her case and explained that, at the previous hearing on the 21 August, she was unable to prepare all the evidence, some of it only having been available 10 minutes beforehand.
She has found several important discrepancies in relation to the evidence of the Chief Veterinary Officer, Jim Scudamore. She wanted to appeal because she felt that the Judge who heard her case in August had not had the correct information placed before him. There were numerous inaccuracies. For example, the Minister said that Janet's sheep were not in danger, but it transpired in the previous hearing that her sheep were next in line to be culled. Janet offered as evidence a map and a written statement from a farmer.
Janet pointed out that in the western Beacons, sheep were tested and culled 5 miles to the west before test results were known, and there was no reason to suspect disease of any sort.
Janet's sheep were equidistant from the outbreak, so there was a danger that they could also be culled without testing.
At this point, the Judge said "Let's move on, what is the position now? What are you seeking from the court?"
Janet replied that she was trying to obtain a Judicial Review. The judge responded that he was not sure it was very easy for the court to do that. He said that all the court was able to do was look at the lawfulness of the situation.
The judge said that under the 1981 Animal Health Act the Minister has a very wide-ranging discretion. He can cause to be slaughtered, as he thinks fit.
Janet pointed out that the animals culled because they were "contiguous" were not contiguous to any infection or disease. She said she had evidence that showed DEFRA, or the assembly, had exceeded their powers under the 1981 act, and that they had culled not in 3km but 7 km.
In addition, Mr Scudamore, the Chief Vet had claimed that there was live virus, when there was no virus present at all.
Professor Fred Brown had not been given time to provide evidence, because DEFRA had produced information too late. Since then he has been furnished with all the relevant information, and provided a witness statement at the end of October, which formed part of her evidence.
Janet said that her reason for applying to give further evidence was that everything pointed to there having been no disease in the Beacons.
The judge said that Janet had put her case very clearly, but that the question was whether these proceedings were the place to raise these issues.
He asked, "Is this a scientific or legal issue?"
Janet replied, "In this case the science is inextricable with the law."
The judge said that the actions of DEFRA may be proved on examination by a scientific enquiry to be an unnecessarily cautious approach.
He said that if all the statute empowered the minister to do was order only the slaughter of animals infected with foot and mouth disease, then there might be some substance in Janet's evidence, but in the Act, the minister is entitled to order slaughter for anything he deems necessary.
The legal basis for the cull of animals to prevent the spread of Foot and Mouth disease (FMD) is schedule 3 to the Animal Health Act 1981:
3.(1) The Minister may, if he thinks fit, in any case cause to be
The judge's stated in his final words that there was no argument that the decisions made were unlawful, and he would accordingly refuse the application.
It is noteworthy that he repeated about three times, in slightly different terms, that in future it may turn out that DEFRA had been "over cautious" in their approach to the disease. And although the judge had been speaking clearly and normally throughout the hearing, toward the end he had sounded quite nervous whilst he explained that DEFRA had acted "within the law."
This gave me the distinct impression that he was wrestling with his conscience.
When asked if there was anything else she wished to say, Janet said she wished to repeat that those sheep that were culled had been culled unnecessarily because she did not believe there was any infection on the Beacons.
The judge's last words were telling....
"You have made your point very clearly Miss Hughes, and it's possible that someone is going to say that the Secretary of State was too cautious, but that is not the business of this court."
Janet had indeed presented her case very clearly and eloquently, and it is hard to see how anyone could dismiss it. Perhaps it was too much to hope that anyone would be allowed to prove that DEFRA had acted unlawfully. They have too much to lose.