Banks & Anor v Secretary Of State For Environment, Food & Rural Affairs

A movement restriction notice made under regulation 29A of the TSE (England) Regulations 2002 must be kept under review and reviewed fairly. The livestock owner must receive sufficient information about the reasonable grounds relied upon, relevant evidence such as test results, and a meaningful opportunity to respond. A precautionary approach does not remove the need for a fair and balanced assessment of all available information. Review must be undertaken by a properly authorised inspector, who must genuinely reconsider the case rather than defend an earlier decision. A failure to disclose material evidence or to identify the case to be answered may render the decision procedurally unfair, even where the underlying restriction might otherwise have been justified.

The claimants challenged the defendant’s decision to maintain a movement restriction notice concerning their cattle at Flintstones Farm. The notice had originally been served after trading standards officers found pet-food material in a cattle feeding trough and in storage areas. It was renewed and replaced under the amended regulations. The claimants argued that there was insufficient evidence and that they had not been told the case against them or given the relevant sampling and testing material.

The notice was revoked during the proceedings and replaced by an arrangement stamping the cattle passports to prevent entry into the human food chain. The central issues were whether the review of the notice had been procedurally fair and whether the continuing restriction was supported by reasonable grounds.

1. Procedural fairness. The application succeeded on procedural unfairness. Although regulation 29A did not prescribe an appeal or review procedure, the defendant was under an obligation to keep the justification for the notice under review and to meet elementary standards of fairness.
2. The claimants had to be given sufficient information about the case against them to make proper representations. That included the inspector’s grounds, the material evidence relied upon, and the test results. The defendant’s failure to disclose the results, its incomplete and inaccurate explanations, and its failure to put the central suspicion of deliberate feeding fairly and squarely to the claimants were manifestly unfair.
3. The decision-making power belonged to an authorised inspector. The evidence did not show that a properly authorised inspector had carried out a genuine, open-minded and comprehensive review of the later evidence. The court distinguished a genuine review from an adversarial attempt to defend an earlier decision.
4. A precautionary approach to BSE risks was justified, but it still required an inspector to assess all available information fairly and in balance. The precautionary approach did not justify relying on overstated evidence, ignoring material favourable evidence, or proceeding on a pre-conception.
5. If the March decision had remained in force, it would have been quashed. The court would also have rejected the substantive challenge based on lack of reasonable grounds, because the information then available could have justified maintaining the restriction. That conclusion did not cure the procedural unfairness.
6. The movement restriction notice had already been revoked, so no quashing or mandatory order was necessary. The court expressed no concluded view on the legal power to stamp the cattle passports, although it indicated that the defendant should consider that issue as part of a comprehensive review. No damages were awarded.