Clement, R (on the application of) v Durham County Magistrates' Court

For offences under the Pigs (Records, Identification and Movement) Order 1995, the prosecution must prove every element beyond reasonable doubt unless the Order expressly places a particular issue on the defendant. A defence submission is not ordinarily an admission of the facts underlying it, because submissions may be made on alternative factual bases. A record prepared for one statutory purpose does not satisfy a different record-keeping obligation merely because it contains similar information. Where the required record concerns completed movements and the alternative form records an intended movement, the forms are not substantially to the like effect.

The claimant appealed by way of case stated against 14 convictions recorded by the Durham justices for breaches of the Pigs (Records, Identification and Movement) Order 1995 and section 72(a) of the Animal Health Act 1981. The charges concerned alleged movements of pigs and failures to retain or produce movement records. The case stated raised questions about the relationship between Schedule 1 and Schedule 5 forms, the evidential effect of a defence submission, the authenticity of documents, and the allocation of the burden of proof.

1. Appeal allowed. The 14 convictions were quashed. The prosecution could decide whether to pursue the matter further. An order for the claimant’s costs out of central funds was made.
2. Article 4 required the owner or person in charge of pigs on a holding to make and maintain, for each movement, a record in the form set out in Schedule 1, within 36 hours and for the prescribed retention period. Article 10 imposed a separate obligation concerning a declaration in the Schedule 5 form for specified intended movements.
3. A Schedule 5 record did not satisfy the Article 4 obligation. Although the forms contained overlapping information, Schedule 5 concerned an intention to move pigs within the next seven days, whereas Schedule 1 recorded what had actually happened. Article 15(9), which permitted a form substantially to the like effect, concerned the manner of recording information and did not apply where the forms served different purposes.
4. A legal submission by counsel could not, in ordinary circumstances, be treated as an admission of the facts on which it was based. Counsel might advance an alternative submission without accepting its factual premise. The justices therefore could not rely on the defence submission to establish that the claimant was the owner or person in charge of the pigs.
5. The evidence did not establish that the claimant signed or endorsed the Schedule 5 forms. The relevant witness had not seen him do so and could not identify his signature or endorsements.
6. The justices’ statement that the prosecution had only to prove prima facie evidence, after which the burden reverted to the defence, was legally wrong. The prosecution had to prove each element beyond reasonable doubt. The only identified reverse burden concerned lawful authority or excuse under Article 16.
7. That fundamental error required the convictions to be quashed and might also have affected the other findings.

• High Court (Administrative Court): On an appeal by way of case stated, the court allowed the appeal and quashed the convictions.
• Durham justices: Convicted the claimant on 14 informations on 17 and 20 May 2002.