Electronic Telegraph, 22 April 1998
THE ban on the sale of beef on the bone was in disarray last night after the first prosecution was thrown out by a court in Scotland. Although the Government insisted the ban remained in place, MPs and lawyers said it was now an unenforceable "shambles" and should be lifted immediately.
Sheriff James Paterson, presiding at Selkirk Sheriff Court in the Scottish Borders, dismissed charges of flouting the ban against Jim Sutherland, a hotelier and livestock farmer. Mr Sutherland was alleged to have served an illegal meal of roast beef on the bone to 180 diners at a well-publicised "Prohibition Dinner" on Dec 22, five days after the ban was introduced.
In a strongly worded written judgment on the test case, Sheriff Patterson said the wording of part of the legislation was defective and questioned why it was not challenged by Parliament. Mr Sutherland, 44, of the Lodge hotel, Carfraemill, Berwicks, hailed the outcome as a victory for "the little man fighting overbearing big government".
The decision was a serious embarrassment for Jack Cunningham, the Agriculture Minister. He introduced the ban after scientists warned that there was a remote risk that the agent responsible for mad cow disease and its human equivalent, Creutzfeld-Jakob disease, could be transmitted through the spinal column and bone marrow of cattle. But Mr Cunningham, with strong support from Downing Street, dismissed calls by Tory and Liberal Democrat MPs for the immediate repeal of the law. With three similar prosecutions pending in England, Mr Cunningham said Sheriff Paterson's ruling was not legally binding on other courts throughout Britain.
He said: "The prohibitions on the use of bone in beef remain valid, unless overturned by a decision of a higher court. The requirements of these regulations are essential for the protection of public health and the Government expects them to continue to be observed and enforced."
Downing Street claimed that the Selkirk case had been thrown out on a legal technicality rather than any consideration of the safety of beef on the bone. Michael Jack, the Conservative agriculture spokesman, said the judgment had thrown the regulations in "chaos, uncertainty and confusion". It had confirmed warnings from MPs and environmental health officers that the regulations were unenforceable.
Paul Tyler, Liberal Democrat spokesman, said the law was now a "shambles" and there was a danger of "months of confusion" pending a possible appeal against the Scottish ruling. The Scottish prosecuting authorities were given leave to appeal to the High Court in Edinburgh.
Sheriff Paterson's ruling followed four days of legal submissions at Selkirk Sheriff Court earlier this month. Lawyers for Mr Sutherland challenged the validity of the ban, arguing that the case against him was incompetent and irrelevant. In yesterday's judgment, Sheriff Paterson criticised the wording of regulation 3(2) which states that "no person shall use any bone-in-beef in the preparation of any food or ingredient for sale direct to the ultimate consumer". The sheriff said that by banning "preparation", every butcher and caterer would be guilty of an offence if they merely chilled a carcass or part of a carcass of beef. He described the wording of the regulations as a "manifest absurdity".
Mr Sutherland said he was delighted: "It has been a bit scary but someone had to deliver the challenge and I'm proud to have done it." Last night, David Kidd, the solicitor acting for Mr Sutherland, said that although the regulations remained in force, it was unclear how the authorities would proceed against anyone who broke them. He said: "The real issue is whether anyone is going to enforce them. I would have thought the possibility of another prosecution being brought pending an appeal is fairly remote."
Mr Kidd said his client had secured a victory for common sense. He said: "The regulations are in total disarray. Nobody really knows what they mean."
Last night, it was unclear whether cases in England where charges have been brought under the regulations would still proceed. A spokesman for the National Farmers' Union called the judgment a "victory for common sense". He said: "The latest evidence shows that the risks are minimal. In this case the Government has gone too far."
The Times, 22 April 1998
THE Government rejected calls to lift the beef-on-the-bone ban last night after a Scottish court threw out the first prosecution for breach of the regulations. Jim Sutherland, a hotelier, who could have faced up to two years in jail, was cleared by Selkirk Sheriff Court, which ruled that the regulation under which he had been charged was defective and ultra vires.
Raising a clenched fist in a victory salute outside the court, Mr Sutherland told jubilant supporters: "We have a sheriff who saw what the problem was, and he was prepared to stand there in court and tell the Government that they have got it seriously wrong on this occasion."
Mr Sutherland, 44, who runs the Lodge Hotel at Carfraemill near Lauder in the Borders, said he was not worried by the appeal against the verdict lodged by the procurator fiscal. But his lawyer, David Kidd, cautioned that it would be "a bit premature" for people to start serving beef on the bone until the appeal had been heard, which could take several months.
The sheriff, James Paterson, said the prosecution had failed because Regulation 3 (2), on which Mr Sutherland had been charged, made it an offence to use bone-in beef in the "preparation" of food for sale.
In the Food Safety Act, under which the Beef Bone Regulations 1997 were introduced, the term preparation meant any form of manufacturing, processing or treatment, including subjecting food to heat or cold, the sheriff said. If the regulation were to be enforced, it would mean that any caterer, merely by chilling a carcass or part of a carcass of beef, would be guilty of the same offence of which Mr Sutherland had been charged. This was a "manifest absurdity". It would, Mr Paterson said, make the distribution of beef from slaughterhouses to butchers and caterers illegal because all such meat should always be placed in the chilling room.
"Thus in one short sentence ... Parliament has destroyed the present system of meat distribution and undermined one of the main purposes of the Food Safety Act, namely the protection of consumers from eating bad meat", he said.
Michael Jack, the Shadow Agriculture Minister, called last night on the Government to repeal the ban: "The judgment today throws the regulations on beef on the bone into chaos, uncertainty and confusion." But Jack Cunningham, the Agriculture Minister, insisted that the ban would stay. He said: "This judgment, which is based purely on legal argument and not on food safety issues, is not legally binding on any other UK courts, including those in Scotland.
"The Crown has been granted leave to appeal and is considering its position." Dr Cunningham added: "The prohibitions on the use of bone-in beef remain valid, unless overturned by a decision of a higher court. The requirements of these regulations are essential for the protection of public health and the Government expects them to continue to be observed and enforced."
Lawyers handling three other prosecutions in England which are to have their first hearings next month said they were studying the Scottish ruling and could not say immediately how it would affect their cases.
Mr Sutherland was reported for serving beef-on-the-bone to 180 people at a dinner on December 22. The ban had been introduced by the Government six days earlier after advice from scientists that nervous tissue attached to bone might be infected with "mad cow" disease.
MAFF Press Release (154/98), 21 April 1998
MAFF Press Release (155/98), 21 April 1998
"The Beef Bones Regulations 1997 were introduced to protect the public from possible infectivity from BSE, taking account of the advice of SEAC and the Chief Medical Officer. They are intended to keep BSE infectivity out of the human food chain.
"The Sheriff in the case of the Procurator Fiscal v Sutherland has today held that Regulation 3(2) of the Beef Bones Regulations 1997 is defective. This judgement - which is based purely on legal argument and not food safety issues - is not legally binding on any other UK Courts, including those in Scotland. The Crown has been granted leave to appeal and is considering its position.
"The Government has already made clear that the Beef Bones Regulations 1997 remain in force. The prohibitions on the use of bone-in beef remain valid, unless overturned by a decision of a Higher Court. The requirements of these regulations are essential for the protection of public health and the Government expects them to continue to be observed and enforced.
"Meat should continue to be transported, stored and sold at the appropriate temperature. The terms of this judgement should not affect the normal refrigeration of meat".