High Burrow Organic Farming Partnership, R (on the application of) v Secretary of State for the Department of the Environment, Food & Rural Affairs

Where a competent authority reasonably considers that cattle are infected with bovine tuberculosis on the basis of valid gamma-interferon blood tests, the Animal Health Act 1981, read with the relevant European directives, requires slaughter. A policy may reasonably allow an exception where there is reason to doubt that testing was properly performed. Judicial review is not an appropriate forum for resolving complex scientific disputes, and the court should be slow to interfere with a responsible decision reached after consultation with expert advisers. Statistical surprise alone does not require repeat testing where there is no evidence that retesting would produce a practically beneficial result.

The claimant, an organic dairy farmer, challenged DEFRA’s decision to slaughter cattle which had tested positive for bovine tuberculosis by skin and gamma-interferon blood tests. The claimant argued that the statistically surprising combination of results required further testing before slaughter, particularly because culling could threaten the farm’s economic viability.

The challenge concerned the lawfulness and rationality of DEFRA’s testing and slaughter policy, including its compatibility with section 32 of the Animal Health Act 1981 and relevant European directives. The central issue was whether the authority was required to retest animals where the results appeared statistically unusual.

1. The claim was dismissed. The interim stay on slaughter consequently lapsed. The claimant was ordered to pay the defendant’s assessed costs of £29,144.50 within 60 days, without interest.
2. Section 32 of the Animal Health Act 1981 had to be read against the relevant European directives. Those provisions permitted Member States to identify infected cattle by means including gamma-interferon blood testing and required slaughter where the competent authorities considered the cattle infected.
3. DEFRA’s policy of using blood tests in herds in areas previously free from tuberculosis, and slaughtering animals which tested positive, was lawful. The policy contained a limited and reasonable exception where there was reason to doubt that a test had been properly performed.
4. The evidence established no reason to doubt the performance or validity of the tests in this herd. DEFRA was therefore bound to treat the positive animals as infected and proceed to slaughter.
5. The claimant’s proposed qualification, requiring retesting whenever results were statistically surprising, was not required by the legislation or the policy. Judicial review was unsuitable for determining the competing complex scientific hypotheses. Applying the approach in R v Secretary of State for Health ex parte Eastside Cheese Company [1999] Eu.LR 968, the court should be slow to interfere with a responsible decision supported by expert advice.
6. There was also no empirical evidence that positive blood tests would become negative if repeated. The court did not, however, dismiss the claim on the adequacy of the proposed remedy. The decisive basis was that the policy was lawful and the slaughter decision was lawful and mandatory, subject only to the stated testing-validity exception.

First-instance judicial review proceedings in the Administrative Court. The claim was dismissed.