Annex 3
NOTE ON
APPEALS
Informal appeal to the DVM
It is proposed that the informal appeal mechanism
currently operated as part of DEFRA's internal procedures should
remain part of the process. Accordingly, it will still be possible
to request the Divisional Veterinary Manager to reconsider a decision
to cull.
Applications for entry warrants
If, following such an appeal, the decision remains
that animals are to be slaughtered but entry to the premises is
refused, the new provisions would permit entry to be carried out
on the basis of a warrant issued by a justice of the peace. Similar
provisions will apply in the case of vaccination and serology
and for the powers relating to scrapie.
As the Minister indicated to the Committee,
this is far from being an unusual procedure and there are numerous
examples of similar provisions in other legislation.
Before a justice of the peace would be entitled
to issue an entry warrant, he or she would have to be satisfied
that the necessary requirements are met. These are as follows:
— There must be reasonable grounds
for the inspector to enter the land or premises for the intended
purpose.
and
Admission to the land or premises must have been
refused (or such refusal must be expected) and notice of the intention
to apply for a warrant must have been given to the occupier of
the land or premises,
An application for admission or notice of the
intention to apply for a warrant would defeat the object of entering,
the case is one of urgency, the land or premises are unoccupied
or the occupier of the land or premises is absent.
The answer to a question put by a member of
the Committee is that any justice is still uncertain on the basis
of that information put before him or her would be entitled to
(and would have to) decline to issue the warrant.
Any justice considering whether or not to issue
a warrant must take into account all of the relevant circumstances
and is entitled to be provided with all the information necessary
to reach a decision by the person making an application. The courts
have also held that there is no obligation to hear arguments from
the other side, although they do have discretion to do so.
Judicial Review
Even if a warrant is issued, it will be open
for that decision to be challenged by means of Judicial Review
proceedings. Contrary to allegations that have been made, nothing
in the Bill would restrict that in any way.
Although it is true to say that this would be
likely in most cases to take place after the animals are slaughtered,
it would be possible for an application for Judicial Review to
be expedited and it would also be possible to apply for interim
relief pending a hearing—it would be up to an Administrative
Court judge to decide whether or not to grant expedition and/or
interim relief in any particular case.
Training for magistrates
Any decision on training for magistrates will
be for those responsible for that function. However, we are not
aware of any current proposals to provide magistrates with specific
training on the provisions of the Bill. Magistrates are already
expected to (and able to) deal with applications relating to a
wide variety of subject matters.
The safeguard remains that any justice faced
with such an application would have to be satisfied on the basis
of the information put before them that the requirements for a
warrant are met before issuing a warrant.
Compensation Appeals
The procedure for compensation appeals is somewhat
different, reflecting the different degree of urgency involved.
The Bill provides in outline for the right of
anyone who receives less than 100 per cent compensation to appeal
to an independent person. The detailed procedure for such appeals
will be governed by statutory instrument and will be subject to
Parliamentary scrutiny.
The Bill does provide for a prescribed fee to
be paid in respect of appeals. That fee is refundable in the event
of the appeal succeeding to any extent whatsoever and was intended
to act as a deterrent against frivolous and vexatious appeals.
It is not intended to be used as a means of recovering the full
cost of conducting appeals.
It is not unusual for the level of such fees
to be prescribed by means of statutory instruments. Any order
prescribing the level of the fee would be subject to Parliamentary
scrutiny.
There is also provision in the Bill to allow
fees to be waived. It is intended to exercise this power in order
to waive fees in cases of hardship. This was intended to reflect
the case law relating to access to justice and to address concerns
similar to those expressed by members of the Committee regarding
the possibility that the provision for a fee might deter genuine
cases as well as frivolous or vexatious ones.
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