M Najib & Sons Ltd v Crown Prosecution Service [2018] EWCA Crim 909

M Najib & Sons Limited v Crown Prosecution Service [2018] EWCA Crim 909 concerned an appeal by a slaughterhouse operator against conviction for failing to assist an inspector to take samples for transmissible spongiform encephalopathy (TSE) monitoring in sheep, heard by the Court of Appeal (Lord Justice Leggatt, Mrs Justice McGowan and Sir Peter Openshaw).

The appellant company was convicted on indictment at Derby Crown Court on 5 May 2017 of an offence under regulation 17(1) of the Transmissible Spongiform Encephalopathies (England) Regulations 2010, namely that between 25 September 2014 and 29 January 2016 it failed without reasonable cause to give an inspector the assistance required to take samples. The company was fined £7,000 and ordered to pay prosecution costs of £5,770.75. The conviction followed a preliminary ruling on 12 January 2017 by His Honour Judge Egbuna rejecting the company’s legal arguments, after which the company pleaded guilty whilst expressly reserving the right to appeal against the judge’s legal ruling. The judge noted that this was not a case where the ruling compelled the guilty plea, as the company could still have run a “reasonable cause” defence before the jury.

The appellant company operated a slaughterhouse and cutting plant for sheep. It had participated in the Department for Environment, Food and Rural Affairs (DEFRA) TSE monitoring programme annually from 2004 until May 2014, when it refused to continue making samples available for testing. The monitoring programme was conducted pursuant to the UK’s obligations under European Union Regulation (EC) No 999/2001 (the EU TSE Regulation), which required member states to carry out annual monitoring programmes for TSEs based on active and passive surveillance. DEFRA’s approach was to require samples only from slaughterhouses with the highest throughputs, which in 2014 meant only those with throughputs above 39,000 animals. This cut-off captured slaughterhouses accounting for over 80 per cent of sheep slaughtered in Great Britain for human consumption. The appellant’s objections were based on the financial burden of compliance (estimated at over £24,500 annually), the unfair distribution of that burden amongst operators, and delays in receiving test results which required carcasses to be held pending negative results, causing loss due to weight reduction and reduced shelf-life.

The Crown Court judge held that the Regulations imposed an obligation on slaughterhouse operators to comply with monitoring and that failure to assist an inspector in taking samples constituted an offence under regulation 17(b). The judge reasoned that if no such obligation existed, the administration of the Regulations in respect of monitoring would be effectively rendered otiose as any operator could withdraw from sampling, which would defeat the intention of Parliament. The judge considered that the legislative words used conferred on an inspector the authority to obtain samples from a slaughterhouse and that a slaughterhouse operator who failed to comply with the taking of samples was committing an offence.

The appellant advanced three main grounds of appeal. First, it contended that there was no legal obligation under the Regulations to make samples available for testing and that failure to give such assistance was not within the scope of regulation 17(b). Second, it argued that DEFRA had acted unlawfully and contrary to the EU TSE Regulation in selecting only slaughterhouses with the highest throughputs for the monitoring programme, thereby infringing the EU principle of equality by imposing the financial burden on only a handful of operators without objective justification. Third, it contended that the inspector had no power under the terms of his appointment to require the appellant to provide assistance.

As a preliminary issue, the Court of Appeal considered whether the guilty plea barred the appeal. The respondent did not oppose the appeal proceeding, but the single judge had refused permission on this basis. The court referred to R v Asiedu [2015] EWCA Crim 714, where Lord Hughes identified two principal situations in which a plea of guilty does not bar an appeal: first, where the plea was compelled as a matter of law by an adverse ruling which left no arguable defence to put before the jury; and second, where there was a legal obstacle to the defendant being tried for the offence (such as where prosecution would be stayed as an abuse of process). The court distinguished R v Chalkley [1998] QB 848, where defendants who pleaded guilty after an adverse evidentiary ruling were held to have admitted the facts constituting the offence and could not appeal, because in that case the facts admitted constituted the offence whether or not the ruling was correct. In the present case, by contrast, although the judge’s ruling did not compel the guilty plea (as the company could still have run a reasonable cause defence), the company had expressly reserved the right to contend on appeal that, as a matter of law, the admitted facts did not give rise to an offence. The court held that a defendant should be allowed to follow such a course and that it would not be in the public interest to require a defendant to contest facts which it was willing to admit merely to preserve the ability to appeal on a point of law. The court concluded that a conviction is unsafe if the facts admitted by the defendant do not in law amount to a criminal offence.

Turning to the substantive grounds, the court addressed first whether there was an obligation to assist an inspector in taking samples. Regulation 17(b) made it an offence to fail without reasonable cause to give an inspector acting under the Regulations any assistance reasonably required for the performance of the inspector’s functions under the Regulations. Regulation 12(1) provided that the Secretary of State could appoint inspectors for the purposes of enforcing “these Regulations”. The court rejected the respondent’s submission that “these Regulations” in regulations 12(1) and 17(b) should be read as encompassing the EU TSE Regulation. The court held that the phrase “these Regulations” could only reasonably be understood to refer to the national Regulations in which the provision appeared, not to the EU TSE Regulation, which was a different instrument. This plain meaning was confirmed by regulation 1, which stated how the Regulations should be cited and where they applied, and by regulation 2, which provided separate definitions including one for “EU TSE Regulation” and stated that expressions not defined in the Regulations which occurred in the EU TSE Regulation had the same meaning in the Regulations as in the EU TSE Regulation.

The court then considered what provision of the Regulations the inspector was enforcing when requiring assistance to take samples for TSE testing. The court examined Schedule 2 to the Regulations, which contained provisions for TSE monitoring. Most of Schedule 2 concerned bovine animals and included at paragraph 8 an obligation on the occupier of a slaughterhouse where a bovine animal was slaughtered for human consumption to take a sample from the brain stem and arrange for it to be delivered to an approved testing laboratory. However, there was no equivalent provision in relation to sheep. The only provision concerning monitoring for TSEs in sheep was paragraph 14, which imposed obligations on the occupier of a slaughterhouse only where an animal had already been selected for sampling and a sample taken, requiring retention of the carcass pending receipt of the test result and immediate disposal in the event of a positive result. That provision did not apply to the earlier stage at which the inspector was seeking assistance from the appellant.

The court held that the Crown Court judge erred in concluding that the Regulations imposed an obligation on slaughterhouse operators to comply with monitoring. The judge had referred to the explanatory note to the Regulations and to Schedule 2 in general terms, but had not identified any specific provision imposing such an obligation. The court noted that the explanatory note was not part of the Regulations and had no legal force. It could not be used to read into paragraph 14 a provision which was not actually there. The court considered that it seemed likely that the failure to include any provision imposing such an obligation was an oversight, but held that only the legislature had the power to repair that omission and that it was not permissible for courts to fill gaps in legislation by creating obligations which did not otherwise exist.

The court then considered the respondent’s alternative submission, which took as its starting point regulation 13(1), giving inspectors a right to enter premises for the purpose of ensuring that the Regulations and the EU TSE Regulation were being complied with. The respondent argued that this provision, by referring to the EU TSE Regulation, empowered an inspector to enter premises for the purpose of ensuring compliance with the UK’s obligation to carry out an annual monitoring programme, that an inspector who had entered for this purpose was entitled to exercise the power under regulation 14(1)(f) to take any samples, and that failure to assist therefore constituted an offence under regulation 17(b). The court rejected this argument for several reasons. First, the court considered that the words “are being complied with” in regulation 13(1) suggested that the purpose for which the right of entry could be exercised was to ensure that obligations were already being complied with by somebody other than the state, and that on this interpretation the reference to the EU TSE Regulation was otiose but must be so in any event since inspectors could only be appointed for the purposes of enforcing the Regulations. Second, even if regulation 13(1) could be construed as contended by the respondent, this did not overcome the problem that powers under regulation 14 could only be exercised for the purposes of enforcing the Regulations, and that it was only an offence under regulation 17(b) to fail to give assistance where the inspector was acting under the Regulations and the assistance was required for the performance of functions under the Regulations. An inspector requesting assistance with taking samples for testing was not enforcing a right of entry but was seeking to obtain samples to test for infection, and there was no provision of the Regulations imposing any obligation on the occupier to assist with this. The court added that it was a salutary principle that a person is not to be prosecuted or exposed to criminal penalties except on clear legal authority and that statutory provisions creating criminal offences should be strictly construed, although in this case the language of the Regulations was simply not capable of being interpreted as imposing the alleged obligation.

The court then addressed the third ground of appeal concerning the inspector’s powers. The court held that this ground was well-founded as a consequence of the conclusions already reached, since the only purposes for which inspectors could be appointed were the purposes of enforcing the Regulations and, as the Regulations made no provision for sampling or monitoring for TSEs of sheep slaughtered for human consumption, enforcing compliance with a monitoring programme was outside the functions which inspectors could be appointed to perform. The appellant also argued that the inspector’s appointment letter limited the powers of inspectors to particular matters specified in bullet points, all of which related to bovine animals. The court rejected this argument. The court held that the first paragraph of the appointment letter appointed the inspectors for the purposes of enforcement of the Regulations generally pursuant to regulation 12, whilst the subsequent paragraphs containing the bullet points served a different function, namely giving inspectors authority to act on behalf of the Secretary of State in relation to various matters where the relevant provisions of the Regulations required or empowered the Secretary of State to do something, such as to grant or revoke an approval. The court concluded that the bullet points did not limit the provisions of the Regulations which the inspectors were appointed to enforce, but that this simply brought one back to the fundamental problem that the Regulations failed to make provision for the occupier of a slaughterhouse to assist in taking samples for TSE monitoring from sheep slaughtered for human consumption.

The court then considered, though it was not strictly necessary given the conclusions already reached, the appellant’s second ground of appeal, that DEFRA had acted unlawfully in the way it selected slaughterhouses for its monitoring programme. The EU TSE Regulation at Annex III, Chapter A, Part II, point 2(a) required member states where the relevant sheep population exceeded 750,000 to test a minimum annual sample of 10,000 ovine animals slaughtered for human consumption in accordance with sampling rules set out in point 4. Point 4 required that the sample selection be designed to avoid over-representation of any group as regards origin, age, breed, production type or any other characteristic, that sampling be representative for each region and season, and that multiple sampling in the same flock be avoided wherever possible. It also provided that member states should aim their monitoring programmes to achieve, wherever possible, that in successive sampling years all officially registered holdings with more than 100 animals and where TSE cases had never been detected were subject to TSE testing. The appellant argued that “officially registered holdings” included slaughterhouses and that the sampling rules therefore required the UK to aim to include all approved slaughterhouses with a throughput of more than 100 animals a year in its monitoring programme. The appellant contended that limiting the programme to those with the highest throughputs was contrary to the EU TSE Regulation and infringed the EU principle of equality by discriminating between operators without objective justification.

The respondent’s primary argument was that “officially registered holdings with more than 100 animals” meant agricultural holdings with a resident flock of more than 100 animals, not slaughterhouses with a throughput of more than 100 animals a year. The respondent emphasised that the wording referred to holdings “with” more than 100 animals, not to throughput or animals per year, indicating that it was concerned with resident flocks. The court agreed with this interpretation. The court noted that the sampling rules in point 4 applied not only to animals slaughtered for human consumption under point 2 but also to animals not slaughtered for human consumption under point 3, which related to animals which had died or been killed but which were not killed in a disease eradication campaign or slaughtered for human consumption. The court held that it would make no sense to aim the monitoring programme for animals not slaughtered for human consumption at covering slaughterhouses, which by definition are places where animals are slaughtered for human consumption. By contrast, it made obvious sense to aim the monitoring programme at covering as many farms which might be harbouring infected animals as possible, subject to an exemption for holdings with very small numbers of animals. This was confirmed by the fact that the sampling rules allowed member states to exclude from sampling remote areas with low animal density where no collection of dead animals was organised, which was clearly directed at agricultural holdings and not apt to apply to slaughterhouses. The court held that the phrase “holdings with more than 100 animals” could only have a single meaning and that, since the only interpretation which made sense in the context of sampling animals not slaughtered for human consumption was that it referred to agricultural holdings with resident flocks, it must have the same meaning in the context of sampling animals slaughtered for human consumption.

The court accepted the appellant’s submission that there was no evidence that DEFRA had designed its monitoring programme with the aim of including animals from all farms with a resident flock of more than 100 sheep or to ensure that the sample selection was representative for each region and season and avoided over-representation of any group, as the sampling rules required. However, the court held that even if the monitoring programme did not comply with the sampling rules, and even if DEFRA should have included all slaughterhouses in the programme, this did not make it unlawful to require the appellant to participate. The court distinguished the principle established in Boddington v British Transport Police [1999] 2 AC 143 and R v Searby [2003] EWCA Crim 190, which allowed a defendant to raise in defence a contention that subordinate legislation or an administrative act was unlawful

Asiedu [2015] EWCA Crim 714, [2015] 2 Cr App R 8
R v Allen [1985] AC 1029
Bogdanic v Secretary of State for the Home Department [2014] EWHC 2872
Boddington v British Transport Police [1998] UKHL 13, [1999] 2 AC 143
Tobin [2003] EWCA Crim 190

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