Hughes, R (on the application of) v Minister For Department Of Environment, Food & Rural Affairs & Anor

A statutory power to slaughter animals exposed to disease may extend beyond animals proved to be infected or suspected of infection. Under the Animal Health Act, the relevant trigger was whether it appeared to the Minister that animals had been exposed to infection. Judicial review examined whether material available when the decision was made provided an arguable basis for acting within the statutory power. It did not determine whether the scientific policy was optimal or whether later inquiry might show that more accurate testing should have been used. Evidence of antibodies could constitute material on which the Minister was entitled to act during an emergency. Later factual discrepancies or better testing possibilities did not establish unlawfulness.

The claimant sought permission to apply for judicial review of a decision made on behalf of the Secretary of State, through the National Assembly for Wales, to cull sheep on hefts in the Brecon Beacons. She argued that the evidence relied on was inaccurate and that antibody findings showed only past exposure, not active infection. Stanley Burnton J refused permission. The claimant then applied for permission to appeal. The central issue was whether there was an arguable case that the culling decisions fell outside the power conferred by section 31 and Schedule 3 of the Animal Health Act.

1. Disposition. In a single judgment, Lord Justice Latham refused the application for permission to appeal. There was no order for costs.
2. Scope of the statutory power. Section 31 and Schedule 3 conferred a wide power to slaughter animals. It covered animals affected with foot-and-mouth disease or suspected of being affected, animals in contact with affected animals, and animals which appeared to the Minister to have been exposed in any way to the infection. The question whether that appearance existed was for the Minister to determine.
3. Judicial review threshold. The claimant had to show an arguable case that the Minister acted outside the statutory ambit. The court was concerned with lawfulness, not whether the policy was scientifically optimal or whether a different testing method would have provided a more secure basis for decision-making.
4. Application to the evidence. The relevant question was whether, when the slaughter order was made, the Minister had material on which he was entitled to conclude that the sheep had been exposed to infection. The emergency context and the advice available to the Minister limited the extent to which the court could go behind that assessment. Even if later scientific analysis showed that the approach was unnecessarily cautious, or factual discrepancies were identified, those matters did not establish unlawfulness. The evidence provided no arguable case that the statutory power had been exceeded.

1. Court of Appeal (Civil Division) — the application for permission to appeal was refused: [2002] EWCA Civ 103.
2. High Court, Queen’s Bench Division, Administrative Court — Stanley Burnton J refused permission to apply for judicial review.