Neutral citation No: [2012] NICA 53	Ref:     	MOR8673	
			
Judgment: approved by the Court for handing down	Delivered:	07/12/12	
(subject to editorial corrections)*			

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

________

BETWEEN:
STEPHEN CRAWFORD
Appellant;
-and-

DEPARTMENT OF AGRICULTURE AND RURAL DEVELOPMENT

Respondent;
________

Before: Morgan LCJ, Higgins LJ, and Sir John Sheil
________

MORGAN LCJ (delivering the judgment of the court)

[1]	This is an appeal from a decision of Treacy J refusing an application for judicial review in which the appellant sought to challenge a decision of the Department of Agriculture and Rural Development to constitute a panel to consider whether to withhold compensation under Article 18(6)(a) of the Disease of Animals (Northern Ireland) Order 1981 following the compulsory slaughter of eleven of the appellant’s cattle after they tested positive for bovine tuberculosis.

[2]	The applicant is a farmer engaged in, inter alia, the breeding of pedigree Limousin cattle. On 19 and 22 September 2006, Mr James Renfrew, a Department veterinary officer, conducted tests for bovine tuberculosis (TB) on three hundred and ten of the appellant’s cattle. On 22 September 2006, he identified twenty four of the tested cattle as having reacted positively to the test. Eleven of these cattle were removed from the farm on 27 September and were slaughtered the following day. Post-mortem examinations showed that none of the slaughtered cattle had any of the indicators of TB. The appellant avers that six days prior to the TB testing he had vaccinated his herd against Blackleg and he believes that the positive reactions to the TB tests identified by Mr Renfrew were in fact reactions to the Blackleg vaccination.

[3]	By letter dated 10th November 2006, the applicant was informed by the Department that it was investigating suspected irregularities noted around the time of the test on his herd and that it was withholding compensation for the slaughter of the cattle pending the outcome of that investigation. In July 2007, summary criminal proceedings were instituted against the appellant. It was alleged that he did an act or permitted an act to be done during a bovine tuberculosis test whereby the reaction of the animal to the test was likely to be affected, namely, that he administered or permitted to be administered an unknown substance to the bovine test site, contrary to Regulation 7 of the Tuberculosis (Examination and Testing) Scheme Order (NI) 1999 (the “1999 Order”). The case was heard over fourteen days between October 2008 and February 2009. On 6 February 2009, following an application of no case to answer, District Judge (MC) Kelly found that there was insufficient evidence to support a prima facie case and dismissed all of the charges.

[4]	On 6 April 2009, the appellant’s solicitor wrote to the Department seeking payment of compensation for the slaughter of the appellant’s cattle. On 8 April 2009, the Department responded in writing stating its intention to constitute a panel of Department officials to consider whether any (and if so how much) compensation would be withheld by the Department under Article 18(6)(a) of the Disease of Animals (NI) Order 1981 (the “1981 Order”). There followed a series of letters between the Department and the appellant’s solicitor which culminated in the appellant issuing judicial review proceedings on 30 October 2009.

[5]	The 1999 Order provides that where the Department slaughters an animal in the circumstances arising in this case the compensation payable shall be the market value of the animal. Article 18(6) of the 1981 Order sets out the circumstances in which the Department may withhold either wholly or partially the compensation otherwise payable.

“(6)	Notwithstanding anything in this Order, the Department may withhold, either wholly or partially, compensation or other payment in respect of an animal or bird slaughtered under this Order at its direction where, in the judgment of the Department-

(a)	the owner or the person having charge of the animal or bird has been guilty of an offence against this Order tending to prejudice the due control of the disease necessitating the slaughter; or

(b)	the animal or bird, being an imported animal or bird, was diseased at the time of its landing or, before or while being brought from any member State, exposed to the infection of disease; or

(c)	the bird was hatched from an imported egg which carried disease or infection at the time of landing or came from the same source as eggs found to carry disease or infection.”

[6]	The offence in respect of which the appellant was acquitted was that during a test he did an act or permitted an act to be done whereby the reaction of the animal to the test was likely to be affected contrary to Article 52(1)(a) of the 1981 Order. It is common case that the offence in respect of which the Department wishes to establish a Panel to determine whether to withhold compensation pursuant to Article 18(6)(a) is the same offence. The grounds on which the appellant pursued the judicial review application were:

“(i)	The Department have erred in law in concluding that Article 18(6) afforded any power to withhold a compensation payment in circumstances where a court of competent jurisdiction had dismissed all charges against the applicant pursuant to the 1981 Order.

(ii)	The Department have erred in law in concluding Article 18(6) affords a discretion to withhold compensation payments in circumstances where a prosecution pursuant to that Order has been initiated by the Department and has been dismissed by the District Judge.

(iii)	The Department have failed to apply the principle of res judicata in circumstances where the matter to be determined by the proposed Panel was the subject of extensive evidence before the District Judge resulting in the dismissal of the prosecution case”.

Consideration

[7]	The learned trial judge gave judgment on 26 May 2011. Before him the focus of the argument on behalf of the appellant was that the Department was acting ultra vires by relying on Article 18(6)(a) of the 1981 Order where there had already been a determination by a criminal court dismissing the relevant charge. It was contended that the presumption of innocence in Article 6(2) ECHR applied in those circumstances to prevent any retrial of the guilt of the appellant. In addition it was submitted that any such endeavour was prohibited because the matter was res judicata. The respondent contended that Article 18(6)(a) was a control mechanism dealing with the entitlement to compensation and that there was ample authority that the same facts could be re-examined in the context of civil proceedings to establish a civil liability or entitlement.

[8]	On 26 October 2011 the Supreme Court gave judgment in Serious Organised Crime Agency v Gale [2011] UKSC 49. In that case the Supreme Court considered the compatibility with Article 6(2) ECHR of civil recovery proceedings for the proceeds of drug trafficking and money laundering following the acquittal of the appellant by a Portuguese court. The majority judgment was given by Lord Phillips. He reviewed the relevant Strasbourg jurisprudence between paragraphs 18 and 31 before concluding in paragraph 32 that he found unconvincing the attempt by Strasbourg to distinguish between claims for compensation by an acquitted defendant and claims for compensation by a third party against an acquitted defendant. He described the state of the law as confusing and considered that it would benefit from consideration by the Grand Chamber.

[9]	He then set out in paragraph 34 his view as to the import of the cases.

“An alternative view is that all that the cases establish is that art 6(2) prohibits a public authority from suggesting that an acquitted defendant should have been convicted on the application of the criminal standard of proof and that to infringe art 6(2) in this way entitles an applicant to compensation for damage to reputation or injury to feelings. I am inclined to this view, albeit that it involves a remarkable extension of a provision that on its face is concerned with the fairness of the criminal trial—see my comment on Taliadorou v Cyprus [2008] ECHR 39627/05 in R (on the application of Adams) v Secretary of State for Justice [2011] UKSC 18, [2011] 3 All ER 261, [2011] NI 42.”

He then went on in paragraph 35 to qualify this passage by the requirement to establish the necessary link between the criminal proceedings and the civil proceedings in question. In Gale the Supreme Court found that the link between the Portuguese criminal proceedings and the Proceeds of Crime proceedings in England was not established.

[10]	The circumstances in which the relevant link could be established were considered in the judgment of Lord Dyson. He noted at paragraph 125 that there were certain circumstances such as costs orders after an acquittal or compensation for detention where the proceedings were a direct sequel or consequence of the criminal proceedings. That would not apply to compensation determinations such as at issue here.

[11]	Lord Dyson recognised, however, that the link could be established by the language used in the civil proceedings. He discussed this initially at paragraph 134.
“But the Strasbourg jurisprudence shows that there may be a yet further route by which art 6(2) may apply to proceedings which (i) are civil on an application of the Engel criteria and (ii) do not objectively have the necessary close link with criminal proceedings. There is a principle that, if in the civil proceedings, the court's decision 'contains a statement imputing the criminal liability of the [applicant]', that of itself will be sufficient to create the necessary link for art 6(2) to apply in those proceedings. The clearest statement of this principle is to be found in Y v Norway (2005) 41 EHRR 87.”

[12]	He noted in paragraph 135 that the ECHR concluded in Y v Norway that the court had overstepped the bounds of the civil forum by deciding the applicant had committed the criminal offences. He then summarised the position in paragraphs 138 to 140.

“[138]	It seems, therefore, that the necessary link can be created by this route only if the court in the civil proceedings bases its decision adverse to the defendant using language which casts doubt on the correctness of an acquittal. The rationale must be that in such a case the court has chosen to reach its decision by explicitly finding that a criminal charge has been committed. If it chooses to reach its decision in that way, then the protections afforded by art 6(2) should be available as if the civil proceedings were criminal proceedings. But if the decision in the civil proceedings is based on reasoning and language which goes no further than is necessary for the purpose of determining them then the necessary link will not have been created. The distinction can be illustrated by reference to the common example of the case where A is acquitted of assaulting B, but B brings a claim for damages in tort. The Court of Human Rights recognises in principle that art 6(2) does not apply to the claim for damages: see, for example, Ringvold v Norway [2003] ECHR 34964/97 (para 38). Thus the acquittal ought to stand in the compensation proceedings, but it does not 'preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof'. The fact that the findings of fact in the compensation proceedings may implicitly cast doubt on the acquittal is not enough to import art 6(2). What is required is that the decision in the compensation proceedings contains a 'statement imputing criminal liability' (my emphasis) (Y v Norway (2005) 41 EHRR 87 (para 42)) for art 6(2) to be imported.

[139] 	The idea seems to be that art 6(2) applies if the court treats the compensation proceedings as if they are proceedings in which the issue of criminal liability falls to be determined. The most obvious way of doing this is to state expressly or, perhaps by necessary implication, that the defendant was wrongly acquitted. There is, of course, no need for the court to create the link with the criminal proceedings in this way because, as the Court of Human Rights explains in Ringvold v Norway, the compensation proceedings are not directly concerned with the outcome of the criminal proceedings. 

[140] 	It will be seen that the circumstances in which the necessary link can be created when otherwise it would not exist echo the circumstances in which art 6(2) may be violated where the link is otherwise sufficiently close. In practice, therefore, if the court imputes criminal liability to an individual, art 6(2) will apply whether or not the link between the two proceedings is otherwise sufficiently close. But the analysis adopted by the Court of Human Rights suggests that the issue should be addressed sequentially in the way that I have described.”

Conclusion

[13]	In our view the Panel is being asked by the Department to do precisely what is prohibited by Article 6(2) ECHR as set out in paragraph 138 of Lord Dyson’s opinion. We therefore make a declaration that it is unlawful for the respondent to rely on Article 18(6)(a) of the 1981 Order to decide whether the appellant is guilty of an offence under that Order when he has already been acquitted of the same offence by a District Judge (MC).