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ReferenceRe: [FMDnew] Letter from DEFRA

Nigel Cannings 21 April 2002 11:41

Originally from: Mary Critchley
                        
With any luck Quita, the whole bunch will soon be eating their words…. I have just put on warmwell the following:
Mary x

April 21 ~ Warmwell asks, how on earth can Lord Whitty still make out that the contiguous cull was legal? Testily repeating over and over again that it was, does not make it legal.

The "we won Winslade" argument is fatally flawed. Lord Whitty in Wednesday's Livestock debate in the Lords cited the Winslade case as proof that the contiguous culls were "legal". But, by omission, the Ministry misled the Court. Judge Mitting in the Winslade case was unaware of the articles by Professor Donaldson that so impressed Lord Justice Harrison in the Grunty case. Defra had not brought them to his attention – even though Fred Landeg has acknowledged that he had them in draft before they were published on 12th May 2001. This must mean that he had them in late April/early May. In a letter that has been on this website since last July, Stephen Smith QC, pointed out in paragraph 25: "The judgments of Mitting, J., on which the Ministry has been wont to place reliance are flawed because the Donaldson articles were not drawn to the Judge's attention (even though the Ministry had had those articles in draft for some time before the hearings in those cases). Nor did the Judge have the benefit of evidence from an expert such as Dr. Sumption, Professors Elwood and Duffus, or Dr. Kitching. Indeed I do not believe that any independent scientific evidence was put before the Court on those occasions. "
Our understanding, (from a conversation with Barbara Jordan solicitor,) is that there is a fundamental rule that when you make an urgent application to Court for an injunction without giving the other side proper notice (as happened in Winslade), you must make "full and frank disclosure" of all material facts and matters. But the Ministry never mentioned the Pirbright research into local spread when they made the application in Winslade (20th May). That research was directly relevant to the position the Ministry adopted in Winslade. In short, by omission, the Ministry misled the Court. Why did Mr Fred Landeg not draw the attention of the Judge in the Winslade case to Professor Alex Donaldson's articles. Was it his own decision? Was it a lawyer's? Was it an official's or politician's? In the Grunty case, where this material was brought to the attention of the Judge, Mr Landeg tried ineffectually to make light of it. It is highly likely that that evidence would have made a significant difference to the outcome of the case. However, it does not actually matter whether it would have made such a difference or not; the decision would not have stood if it had been challenged because that material from the Veterinary Record was highly relevant, was available to the Ministry and had not been put before the Court.

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