Judicial review supports UFU position
Tuesday, 7 February, 2017
The UFU was represented by Counsel with substantial experience of the operation of the Common Agricultural Policy (Hugh Mercer QC and James O’Brien) instructed by Andrea McCann of John McKee Solicitors, Belfast and the UFU's Technical Team.
A judicial review taken by the Ulster Farmers’ Union has found in favour of the UFU position. The review was over the definition of 'intent' in relation to CAP direct support cross compliance breaches. Existing rules trigger a significant increase in the level of penalties imposed on farmers.
The case involved County Armagh farmer and former UFU president, Ian Marshall, who the UFU believes was treated extremely harshly when a modest pollution incident led to the loss of thousands of pounds of income through CAP payments.
Commenting on the decision UFU Chief Executive, Wesley Aston, said that while this was a welcome decision for the farmer involved, the UFU's role in seeking a judicial review had been to protect the wider industry from harsh treatment for minor mistakes.
”It is not about pollution or indeed the scale of the incident,” said Mr Aston, “We accept there is no acceptable level of pollution. The case is about whether NIEA and DARD were right to effectively ignore the views of the independent external appeal panel which considered this was a negligent rather than intentional breach and had recommended accordingly. But NIEA/DARD considered it to be intentional and placed the burden of proof on the farmer rather than the Department to prove otherwise, imposing a much higher financial penalty and disallowing a large part of the associated CAP payment. We have always maintained that this should not be the case and today’s decision has clarified that the onus to prove intent clearly rests with the enforcement body,” said Mr Aston.
“We are no strangers to judicial reviews, and will no doubt do the same again in the future, if there are cases we believe have implications for our 11,500 members. They can be costly if unsuccessful but as a union our role is to defend our members against unfairness. Only through that collective strength can farmers take on the cost of legal action to defend a principle on behalf of the wider farming industry,” said Mr Aston.
In this particular case, now that the precedent around proving intent has been established we are pleased that not only will ‘intent’ have to be proven more robustly in future breaches of cross compliance but also that all similar historic cases may now have to be re-examined.
The UFU was represented by Counsel with substantial experience of the operation of the Common Agricultural Policy (Hugh Mercer QC and James O’Brien) instructed by Andrea McCann of John McKee Solicitors, Belfast.
Excerpt from the Court's Assessment below. Full assessment can be found on page 20 of the judgement.
The Court has been persuaded by the arguments of Mr Mercer, for the applicant, that the decision of Mr Lavery in this case is flawed by reason of the cumulative effect of the following:
- Firstly, the Court believes it is likely that Mr Lavery did not appreciate that in respect of the issue he was deciding the onus of proof was on the Department to demonstrate intentionality on the balance of probability. This is demonstrated by the points made by Mr Mercer at paragraph  (c) above which the court accepts.
- Secondly, the Court is satisfied that Mr Lavery in all likelihood viewed the matter as one in respect of which the onus of proof was on the applicant to demonstrate that he did not act intentionally.
- Thirdly, the Court from the language used by Mr Lavery has formed the opinion that he may and likely did approach the case in a way which was tantamount to applying a strict liability approach when such an approach, it is common case, was both inappropriate and forbidden.
- Fourthly, the Court finds that Mr Lavery did not rigorously consider and set out in his decision what precise evidence there was for the conclusion he reached on the issue of intentionality. In other words, he failed to set out the respects in which he had concluded that the applicant had knowinglv breached the SMR in question. This is probably explicable by reason of the fact that the decision maker saw it as the applicant's role to explain why he should not be viewed as having acted intentionally rather than his own role to define the ways in which the evidence demonstrated that he had so acted. As Mr Lavery applied the Cross Compliance Guidance for Field Staff test, the detail of which is recorded at paragraph  above, it seems to the court it was necessary for him to explain how he had become satisfied to the requisite standard that the applicant had intentionally caused the pollution. As for the test which Mr McMillan quoted from paragraph 35 of the ECJ's judgment in Van der Ham, the court considers it highly unlikely that Mr Lavery was aware of or was applying it in the course of his decision making. While it may be that this test could have been used, in fact, there was no reference to it in the decision maker's decision and no sign it was applied. The court does not accept that Mr Lavery was applying this test.
- Fifthly, the Court cannot ignore the fact that there was at least one reference in Mr Lavery's own remarks which relate to a matter which he seems to have regarded as relevant to the issue he was deciding viz the intentionality issue, but which, on a proper analysis (as was conceded by Mr McMillen), did not sound on that issue. This was in relation to his comments about the situation at the farm in September 2012. In this respect, there has been a compromise of what should have been a rigorous approach, especially when viewed in the context of the next point.
- Sixthly, the decision-maker has not dis-associated his approach from irrelevant and/ or erroneous statements put to him by the NIEA and/ or the Department, referred to in the summary of Mr Mercer's arguments set out above. He left such errors uncorrected and in so doing has left the Court with a serious concern that he may have been influenced by them.
- Seventhly, the decision-maker has left the Court uncertain about the weight, if any, he gave to the issue of the diverter. Mr Lavery has made no finding that he applicant, in fact, knew of the problem in respect of the diverter prior to the inspectors' locating it on the last day before the end of the relevant time window. In these circumstances the Court is left to wonder whether, as is evident in the NIEA's submissions, the decision-maker regarded the mis-management of the diverter as a significant aspect of the alleged intentional breach. If this was the position, a finding of intentionality would, it seems to the Court, abrade with Mr Gray's view that, in respect of the mismanagement of the diverter, the applicant at most was guilty of negligence. Indeed, it was on this basis that the CC2 Form was issued. This matter, it seems to the Court, should have been the subject of direct discussion in the decision.
In view of the Court's concerns above, and taking into account the cumulative effect of the various findings and reservations to which the court has been reference, the Court is satisfied that the decision-maker's decision, on balance, cannot stand.