Decision of the Scottish Land Court

Firm of Malcolm G D Morrison (Appellant) v The Scottish Ministers (Respondents)

Case reference SLC 138/16
before
Lord Minginish, Chairman, and John A Smith
26 June 2017

[1] This is an appeal under the Rural Payments (Appeals) (Scotland) Regulations 2015 (“the Appeal Regulations”) by the firm of Malcolm G D Morrison which farms at Upper Bighouse, Halladale, Forsinard, Caithness.

[2] In 2015 they applied to the respondents for payment under the Scottish Upland Sheep Support Scheme (“SUSSS”) in respect of 426 ewe hoggs. As a result of an inspection by Scottish Government Rural Payments and Inspection Division (“SGRPID”) staff on 11 February 2016 it was discovered that 94 of those were not eligible for payment. Since that amounted to more than 20% of the total claimed for, applying a penalty matrix they have for that purpose, the respondents refused the SUSSS claim in its entirety. Of the 94 ineligible animals by far the greater number, 82, were deemed ineligible due to alleged failure to report their movement (as a group, on a single occasion) from one holding to another to the Scottish Animal Movement Unit (“SAMU”) at SGRPID’s Dumfries office.

[3] The respondents’ decision was unsuccessfully challenged at a review under the Appeal Regulations and it is against that outcome that this appeal is taken. We heard the appeal at Edinburgh on 2 May 2017 when the appellants were represented by Mr Hamish Lean, solicitor, and the respondents by Miss Laura-Anne van der Westhuizen, advocate. The appeal hearing took the form of evidence being led as to whether the sheep movements in question had in fact been reported to SAMU followed by legal submissions. Before we recount the evidence it will be helpful to say something of the factual background and to identify the relevant law.

[4] Mr Malcolm Morrison, the eponymous principal of the appellant firm (who is, to all intents and purposes, the appellant and will be referred to as such), lives in Thornhill, Dumfries, but his farming operation is at Upper Bighouse where he keeps sheep. These sheep are looked after on his behalf by Mr John MacKenzie, who lives and farms at Westfield Farm, Thurso, Caithness, and the sheep are moved between the two farms as need arises. Such movements require to be notified to SAMU within three days of their happening in terms of the legislation below.

Legislation

[5] Article 54 of European Council Regulation No 1307/2013 empowers Member States of the European Union to grant what is called “coupled support” to certain agricultural sectors including sheepmeat. The SUSSS is such a coupled support system and is governed, domestically, by The Common Agricultural Policy (Direct Payments etc.) (Scotland) Regulations 2015, reg 5 of which provides that “applicable requirements” of ovine coupled support schemes include the requirements in relation to “holding register and movement requirements”.

[6] These register and movement requirements derive from the following EU provisions:

European Council Regulation (EC) No 21/2004

Article 6

1. As from 9 July 2005, or, for Bulgaria, Romania and Croatia, the respective date of accession, whenever an animal is moved within the national territory between two separate holdings, it shall be accompanied by a movement document based on a model drawn up by the competent authority, containing at least the minimum information listed in Section C of the Annex, and completed by the keeper if the competent authority has not already done this.

Article 8

1. As from 9 July 2005, or, for Bulgaria, Romania and Croatia, the respective date of accession, the competent authority of each Member State shall set up a computer database in accordance with Section D.1 of the Annex.

2. Each keeper of animals, with the exception of the transporter, shall, within a period of 30 days as regards information relating to the keeper or the holding and within a period of seven days as regards information relating to movements of animals, provide the competent authority with:

(a) the information for entry in the central register and the outcome of the inventory, mentioned in Article 7(2), and the information required for the setting up of the database referred to in paragraph 1;

(b) in Member States applying the derogation referred to in Article 6(4) each time an animal is moved, the details of the movement, as set out in the movement document referred to in Article 6.

[7] Domestically, these provisions are reflected, in more exacting terms so far as intimation of animal movements is concerned, in

The Sheep and Goats (Records, Identification and Movement) (Scotland) Order 2009 SSSI 2009/414 (“SAGRO”):

25. Supply of information for the central database

In accordance with Article 8(2) of the Council Regulation [i.e. Council Regulation (EC) 21/2004], the keeper of an animal must provide to the Scottish Ministers, in such manner and form as the Scottish Ministers may specify, the information required for the purposes of Article 7(2) and Article 8(1) of the Council Regulation –

(a) within 30 days in the case of information relating to the keeper of the holding;

(b) within 3 days in the case of information relating to movement of animals; and

(c) within 48 hours in the case of animals that move through premises in accordance with Article 6 and Section C.2 of the Annex.

[8] Penalties for failure to comply with direct aid requirements are governed by

European Council Regulation (EU) No 1306/2013

Article 63

Undue payments and administrative penalties

1. Where it is found that a beneficiary does not comply with the eligibility criteria, commitments or other obligations relating to the conditions of the granting of the aid or support, as provided for in the sectoral agricultural legislation, the aid shall not be paid or shall be withdrawn in full or in part and, where relevant, the corresponding payment entitlements as referred to in Article 21 of Regulation (EU) No 1307/2013 shall not be allocated or shall be withdrawn.

2. Moreover, where sectoral agricultural legislation so provides, Member States shall also impose administrative penalties, in accordance with the rules laid down in Article 64 and Article 77. This shall be without prejudice to the provisions set out in Articles 91 to 101 of the Title VI.

Article 77

Application of administrative penalties

1. As regards the administrative penalties referred to in Article 63(2), this Article shall apply in the case of non-compliance with relation to eligibility criteria, commitments or other obligations resulting from the application of the rules on support referred to in Article 67(2).

2. No administrative penalty shall be imposed:

(a) where the non-compliance is due to force majeure;

(b) where the non-compliance is due to obvious errors as referred to in Article 59(6);

(c) where the non-compliance is due to an error of the competent authority or another authority, and where the error could not reasonably have been detected by the person concerned by the administrative penalty;

(d) where the person concerned can demonstrate to the satisfaction of the competent authority that he or she is not at fault for the non-compliance with the obligations referred to in paragraph 1 or if the competent authority is otherwise satisfied that the person concerned is not at fault;

(e) where the non-compliance is of a minor nature, including where expressed in the form of a threshold, to be set by the Commission in accordance with point (b) of paragraph 7;

(f) other cases in which the imposition of a penalty is not appropriate, to be defined by the Commission in accordance with point (b) of paragraph 7.

Evidence

[9] For the appellants evidence was given by Mr MacKenzie and his wife, Lorna. Mr Morrison himself did not give evidence. The respondents led only one witness, Miss Jayne Pringle, Administrative Officer with SAMU at Dumfries but in addition relied on a witness statement from Ms Kathleen Anne Gunn, one of the inspectors who had carried out the inspection, which had been lodged in advance of the hearing in terms of Rule 34 of our Rules. We found all of the witnesses credible and reliable despite a criticism made of Mr and Mrs MacKenzie that their evidence did not accord with the appellants’ pleadings as to their practice in posting movement notifications to SAMU. We deal with that criticism below.

Mr Magnus John MacKenzie

[10] Mr MacKenzie gave details of the arrangement he has with Mr Morrison for looking after the latter’s sheep. He gets paid so much per ewe and gets the value of the male lambs when sold. This arrangement has been ongoing for about 10 years.

[11] Sheep were moved between Upper Bighouse and Westfield frequently and he was familiar with the movement reporting requirements under both the SUSSS and SAGRO. He was shown the forms used for reporting animal movements. These are in triplicate and he explained that one copy was sent off to SAMU, one was kept for Mr Morrison’s records and one for his own.

[12] All the paperwork was done by his wife, Lorna, both for Mr Morrison’s records and their own. That included completing the movement notification forms. She would also attend to the posting of the intimation copy to SAMU. At this point counsel for the respondents objected to evidence being led as to the posting of the missing document by Mrs MacKenzie. That was on the basis of lack of fair notice. All that was pled on record was (at Ground of Appeal (a)(5)) that “John McKenzie of Westfield Farm, Thurso was the keeper and he or his wife, Mrs Lorna McKenzie, posted the relevant movement documents to The Scottish Animal Movement Unit (SAMU) timeously and retained a carbon copy of the movement document” and, at section (c) of the appeal, that “The movement document, a carbon copy of which was seen by the Respondents’ inspector and is referred to in the Report, was sent timeously to SAMU by the Keeper”. Neither Mr nor Mrs MacKenzie had attended the review meeting and no information had been placed before the respondents of any system for dealing with farm mail, nor any information as to by whom, when and where the relevant document had been posted. We allowed the evidence to be led under reservation as to relevancy and competency.

[13] Their local post office was in the Co-op in Thurso. Lorna was responsible for posting the farm mail, so she would have posted the form.

[14] In cross-examination production 15, an SUSSS claim form on behalf of Mr Morrison dated 13 October 2013 was put to the witness. It would have been completed by his wife or Mr Morrison or by them between them. Although Mr Morrison lived in Dumfries he visited Caithness as often as possible, spending weekends and holidays there.

[15] He accepted that production 10 was the SUSSS guidance which had been in place at the time. He was familiar with SCOTEID, the computer database onto which SAMU entered animal movements notified to them. He knew that the inspectors would be checking that movements had been entered onto SCOTEID and that there were penalties for failure to report movements. He accepted that even before SUSSS had come in sheep and goat movements required to be intimated to SAMU in terms of SAGRO.

[16] A number of other matters were put to Mr MacKenzie but he explained that, since they involved the detail of record-keeping, his wife would be better placed to comment. He simply reported the details of sheep movements to his wife and she then completed the paperwork. He accepted that he and his wife knew that they could contact SAMU to check that movement notifications had been received and that, as a keeper registered on SCOTEID, he could access the database to check the records himself.

[17] Asked whether he had provided any proof of posting, Mr Lean objected that there was no requirement for such in the regulations but the witness accepted that he and his wife had no such proof. Nor was there any record of postings nor of expenditure on stamps.

Mrs Lorna MacKenzie

[18] Mrs MacKenzie confirmed that she and her husband had been together for 12 years, although married for only two. For 10 years they had lived at Westfield Farm. Her role in running the farm was doing the paperwork; keeping records, dealing with accounts and invoices and the general day-to-day running of the office.

[19] She confirmed the arrangement she and her husband had with Mr Morrison. She described how the triplicate intimation forms were used. She described how she would put the intimation copy into an envelope, address it and post it. She was in Thurso most days and would post the mail when she was there.

[20] She kept separate SAMU books for Mr Morrison’s farm and their own but both were kept at Westfield.

[21] All intimations of animal movements were done by post – none save one had been done by email – but once a year she would access the database to check that it matched her own records. At the inspection a discrepancy had emerged between the records she held and the information given to the inspectors by SAMU. She was able to show the inspectors the yellow and pink copies of the relevant intimation form. Although she could not remember posting this specific form she had no reason to think she had not posted it. Posting of those things was done as a matter of routine. Once a movement intimation had been posted she did nothing else; she wasn’t in the habit of checking that it had been received. She had not been worried when the inspectors had said SAMU had no record of this movement; the inspectors themselves said that they would check with SAMU, so she imagined any problem was at their end. For her own part, she was happy that she had sent it.

[22] In cross-examination she was asked about the completion of those forms. Her husband would sign them and she would fill in the detail. Although generally familiar with the SAGRO and SUSSS guidance, she had not been aware that notification was an eligibility criterion for SUSSS. Had she been aware she would have checked. She had access to the database and could have checked. She was aware that there were penalties for failure to intimate movements but did not know what they were.

[23] She posted mail on a daily basis. She kept a bag for outgoing mail in the office and took it with her when she went into Thurso. She couldn’t say what had become of this notification after posting.

[24] Mr Morrison’s signature of the intimation forms had been completed by her. He had asked her to do that. He wasn’t there when the movements took place, so couldn’t sign, so she signed his name for him. Cross-examination also elicited that the practice of using one book for movements to Upper Bighouse and the other for movements to Westfield was not always strictly adhered to; there were entries for Westfield in the Upper Bighouse book and vice versa. In re-examination she confirmed that she was not aware of any requirement to keep separate books: it was just something she attempted to do. Nor was she aware of any guidance to the effect that receipt of movement intimations should be checked with SAMU or on SCOTEID; the annual check she was in the habit of carrying out was something she had done of her own volition.

Miss Jayne Pringle

[25] Miss Pringle was the manager of SAMU at Dumfries. All sheep and goat movements were processed by SAMU. The unit had been set up in 2001 in the wake of the Foot and Mouth outbreak. It comprised three employees, herself and two others. There were 12 people in the office altogether but the nine others were not part of SAMU, they were the staff of the Dumfries SGRPID area office.

[26] Mail was opened, date-stamped and sorted out by address; what was for SAMU was given to the SAMU staff. The fact of receipt was entered on a spreadsheet but then the forms were placed in a folder for loading onto the SCOTEID system later. Intimations received by email were treated in the same way; they were printed off, date-stamped, entered on the spreadsheet and put away with the rest pending further processing. Email intimations received an automatic acknowledgement but not intimations received by fax or mail. Only two or three people a week would check whether a form had been received.

[27] The number of intimations received daily varied from about 50 to 400 depending on the time of year. If there was a backlog they processed the older ones first. Anyone registered on the system could access SCOTEID but only SAMU staff could enter information onto it or edit it.

[28] The witness was not aware of any problem about the receipt of intimations by post generally or ones from the Thurso area in particular. She had checked every movement intimation received by SAMU since the date of the missing movement but had not found it. Where inspectors out in the field reported a movement which had not been intimated by the keeper of the animals an entry was made in the records with a note that the information had been received from inspectors.

[29] In cross-examination she accepted that there were occasions on which people phoning up to check whether a movement intimation had been received had to be told that it had not. Asked whether this did not indicate that the intimation must have gone astray, the witness said that depended on taking the caller’s word that it had been sent. It was a very small number of people who checked that their forms had been received, perhaps even less than one or two a week. Some people made a point of checking every so often to make sure their records were correct.

[30] In re-examination Miss Pringle confirmed that the time of year with which this case is concerned (January) was not a busy time of year for movement reports. It would not be a time at which they would be taking on extra help to deal with the numbers, as occasionally happened at busier times of year.

Submissions

For the appellants

[31] The appeal relied on art 77(2)(d) of Regulation (EU) No 1306/2013. That provision refers to the person concerned demonstrating to the satisfaction of the competent authority that he or she was not at fault. Asked whether we could substitute our view for that of the competent authority, Mr Lean submitted that reg 9(2)(b) of the Appeal Regulations covered the matter, empowering, as it does, this court to “amend or alter [the decision appealed against] in any respect it considers appropriate”. Alternatively, were we to make a finding-in-fact that the intimation had been posted, we could refer the matter back to the respondents under sub-para (d).

[32] Mr Lean addressed the objection which had been taken to the admission of the evidence of posting. The question of whether the movement document had been sent to SAMU had always been at the heart of this dispute. That was clear from production 4, the request for a review of the respondents’ original decision. It was also flagged up in Ground of Appeal 5. The respondents had therefore had ample notice of the fact that evidence of posting would be led.

[33] The evidence in the case showed consistent compliance on the part of the MacKenzies with a well understood rule. Moreover there was evidence that this particular movement of animals had been recorded in the same way as others; two of the three copies – the retained copies – of the form were seen by the inspectors at inspection. There was evidence that Mrs MacKenzie did the posting as a matter of routine. There was evidence that notifications sent to SAMU occasionally went astray; Miss Pringle had spoken about having to tell some of the few who enquired that the intimation they were asking about had not been received. The guidance issued by the respondents was quite wrong in suggesting that it was the responsibility of the keeper of the animals to make sure the movement notification documents had been received by SAMU: there was no such requirement in the relevant legislation and the evidence was that only one or two keepers each week would check that a notification had been received whereas SAMU were receiving at least 50 such intimations every day.

[34] What the court had to be satisfied about was whether the intimation copy had been posted. It did not have to form a view as to what was likely to have happened to it thereafter. If we were satisfied that posting had taken place, that was sufficient for the appeal to succeed.

[35] Reference was made to the case of Innes v Scottish Ministers 2013 SLCR 91 which involved a question as to whether animal passports had been posted. In that case the court had been satisfied that the passports had never been received by the British Cattle Movement Society and that too many passports were unaccounted for to attribute them all to having gone lost in the post. On that basis the court had not been satisfied that the passports had ever been posted but the important point was that the court (at para [2]) had regarded posting as being all that mattered: had the court been persuaded that the passports had been posted the appeal would have succeeded. The present case was very different. It concerned only one envelope and its contents and Mrs MacKenzie’s evidence was supported by the availability of the other two copies of the triplicate form at inspection. The possibility of intimations going missing in the post was supported by Miss Pringle’s foresaid evidence: it evidently sometimes happened.

[36] As to disposal, it was probably inappropriate to invite the court to recalculate the penalty on the basis that the 82 ewe hoggs which were the subject of the missing notification be removed. That was best dealt with by the respondents, so, if the appeal was upheld, we should remit to them to recalculate any penalty.

For the respondents

[37] For the respondents, Miss van der Westhuizen invited us to uphold their decision. She referred to the relevant legislation, particularly to art 8(2) of EC 21/2004 for the governing European provision and reg 25 of SAGRO for the domestic provision. In terms of the latter, the requirement was that a keeper of animals “must provide to the Scottish Ministers” information as to the movement of animals within three days. “Must provide” meant that the information had to be received by the Scottish Ministers. Information not received had not been provided. Therefore, even although there was no legislative requirement to use registered post, recorded delivery or any other tracking service, if the information was not provided so as to find its way to SAMU the requirement had not been met.

[38] Moving on from that, there was no dispute that, in terms of the scheme requirements, the fact that the animals were not on the SCOTEID database rendered them ineligible for the support claimed. The only issue remaining was the narrow one of whether penalties required to be imposed. Article 77(2)(d) of EU 1306/2013 was the critical provision and the question was whether the competent authority was satisfied that the relevant person was not at fault for the non-compliance. The evidence here was insufficient to show that Mr and Mrs MacKenzie (and, therefore, the appellant) were not at fault.

[39] Firstly, we should accept Miss Pringle’s evidence of a robust system for processing intimations. We should bear in mind that this was a quiet time of year, so far as animal movement was concerned. We should therefore find in fact that this intimation had not been received by SAMU. That gave rise to a rebuttable presumption that it had not been posted.

[40] As to the evidence of posting, there had been no evidence before the respondents, when making the decision appealed against, as to by whom, when and how notification had was said to have been effected. The respondents had not been provided with any information which would have allowed them to conclude that there had been no fault on the part of the appellants. Even on the evidence now heard, the court could not be satisfied as to that. In objecting to the admissibility of evidence of posting, an objection which was being insisted upon, counsel had expected Mrs MacKenzie to go beyond giving evidence of simple posting. She had expected evidence of a system of posting and of recording what had been posted. But there had been nothing like that. Instead there had been inconsistencies between Mrs MacKenzie’s evidence – that she and she alone did the posting – and what was said in the pleadings to the effect that notification had been made by “the keeper or his wife” or the keeper alone. Moreover Mrs MacKenzie had no specific recollection of posting this particular item. That came against the background of a less than perfect record-keeping system, as evidenced by the inconsistent use of what were supposed to be separate books for Upper Bighouse and Westfield.

[41] As regards their ability to check what was on the SCOTEID system, there was evidence that both Mr and Mrs MacKenzie were familiar with that system as also with the guidance pertaining to the subsidy schemes in question. But it was clear that Mrs MacKenzie was less familiar with the consequences of failure to check the system. Failure to check was, in itself, being at fault: that must necessarily be so where failure of the information to reach SAMU amounted to non-compliance with scheme requirements.

[42] Asked what we should do in the event that we held it proved that posting had taken place, counsel said that her instructions were that we should not refer the matter back to the respondents: instead we should simply uphold their decision. That was on the basis that failure to check that the notification had been received was itself a fault. Counsel accepted, however, that were we to be satisfied that there had not been fault on the part of Mr and Mrs MacKenzie in terms of art 77(2)(d), we could substitute our own view for that of the respondents and uphold the appeal.

Discussion

[43] The first thing we have to do is rule on counsel’s objection to the admissibility of Mr and Mrs MacKenzie’s evidence as to the posting of the notification.

[44] The basis of the objection was that no such evidence had been presented to the respondents at the review stage which had preceded the appeal to this court. We are satisfied that it is without merit. The review report (production 6) makes clear that the appellant’s contention was that the intimation had been posted and that the problem was that it had not been received by SAMU: see Point 1 of the section headed “Specific Points Raised By Appellant” and the SGRPID response which notes that, whereas the intimation may be sent by post, fax or scanned attachment to an email, “In this instance the postal route was chosen to notify SAMU of the movement on 10 January 2016”. Admittedly, the review report says nothing of when, where or by whom the notification was said to have been posted but it accepts that the appellant’s position was that it had been posted and the focus of the discussion at the review hearing appears not to have been the truth or falsity of the appellant’s claim but whether it was incumbent on the appellant, or those acting for him, to check that the notification had been received. Thus the foregoing reference to the postal route having been chosen on this occasion is closely followed by the statement that “It is the claimant’s responsibility to check that a movement document has been received by SAMU”. Although, in the absence of proof of posting, the respondents were not in a position to admit or deny that posting had taken place the discussion of matters in the review report seems to proceed on the hypothesis that it had. What the respondents were saying, as they continue to say in this appeal, was that posting is not enough; that there was a duty on the claimant to ensure that the intimation had reached SAMU.

[45] The appellant’s contention that posting had taken place having, therefore, been clearly advanced at the review meeting, the present objection falls to be repelled.

[46] That deals with the admissibility of the evidence. But the respondents also have criticisms of its credibility and reliability. We have already recorded the inconsistencies which counsel brought out between what is averred in the pleadings and grounds of appeal, on the one hand, and what we heard in evidence, on the other. Those inconsistencies are certainly surprising. We would have expected the questions of when, where and by whom posting was effected to have been closely examined before the pleadings were drafted and the eventual pleadings to contain as much detail as possible as to these matters. We would then have expected the evidence at the hearing to confirm these averments. As it turned out, it did not, at all events on the important question of who had posted the intimation. There was no suggestion in the evidence that Mr MacKenzie may have posted the intimation, whereas the pleadings say that “he or his wife” posted it. Nor was any evidence led to explain that change of position.

[47] Although these criticisms are not without force, we are inclined to accept the evidence of Mr and Mrs MacKenzie, which was that Mrs MacKenzie posted the intimation. That is for the following reasons. Firstly, they gave their evidence in a straightforward manner, without prevarication or evasion or internal inconsistency. We were, therefore, inclined to believe them.

[48] Secondly, there was the evidence of the intimation copy having been detached from the other two, as was seen by the inspectors at inspection. This is consistent with at least an intention to post it.

[49] Thirdly, this was a “one off” incident. All the other intimations had been posted and received timeously and there is no reason for us to doubt that on this occasion Mrs MacKenzie followed her usual practice of posting intimations promptly. The case does not involve the multiple failures which led the court in Innes to hold that it had not been proved that posting had taken place.

[50] Fourthly, and finally, there are other plausible explanations as to why the intimation was not, apparently, received by SAMU: it is well known that things sometimes get lost in the post and the possibility of it having been lost within the respondents’ Dumfries office cannot be excluded.

[51] For the foregoing reasons we find it established that Mrs MacKenzie posted the intimation timeously. Mr Lean said that there was no need for us to make findings in fact beyond that and it seems to us that all we need say as to what became of the notification is that we certainly cannot hold, on the evidence, that it reached the Dumfries office and must have been lost thereafter. Miss Pringle’s evidence of the system used for receiving and distributing mail in what is a relatively small office and her failure to find the notification after a very thorough search points the other way although not strongly enough for a finding that the intimation was not received in that office.

[52] The next question is whether the fact of posting makes any difference. In that regard, the duty on the appellant, in terms of both art 8(2) of EC 21/2004 and para 25 of SAGRO, was to “provide” the respondents with the requisite information. Miss van der Westhuizen’s position was that this required the information to be received by the respondents within the prescribed time limit: what had not been received could not be said to have been provided.

[53] Whilst we see the force of this on the ordinary meaning of the words and it is reinforced by the context here, which is the need to maintain an accurate, up-to-date and reliable record of animal movements, we think counsel’s interpretation may be too strict. We say that because what the notification requirements are addressing is an act which the keeper of animals has to perform within a certain period of time. That act involves the transmitting, by one means or another, of the requisite information to the competent authority. One of those means – permitted at least in this country – is by post, without more being required. It seems to us, therefore, that “provide” requires to be read widely enough to include the posting of the intimation within the period specified, without more. It is our understanding, as a court with some experience of these matters, that this is also the way the requirement has been understood by aid claimants and indeed administered by the respondents to date. Some support for that is found in the case of Innes which dealt with the requirement under para 3(3) of Schedule 2 to the Cattle Identification (Scotland) Regulations 2007 to notify Scottish Ministers within seven days of an animal’s death. Although the word used there is “notify” rather than “provide”, we would have thought they are similar in connoting the completed act of notification or provision of information. Nevertheless the Court recorded (at finding-in-fact 10) that “It was accepted [by the respondents] that it would be sufficient compliance to prove that the passport had been duly posted to BCMS. There was no requirement to post by recorded delivery or to obtain a receipt from the post office.”

[54] On that interpretation of reg 25 of SAGRO, there would be no need for the appellant to rely on art 77(2)(d). We acknowledge, however, that Mr Lean did not argue this point. Instead his submissions began and ended with art 77(2)(d), with no reliance on an exculpatory interpretation of reg 25. Accordingly, this appeal has to be decided on the question whether the appellant can be excused from strict compliance with reg 25 on the basis of art 77(2)(d).

[55] Article 77(2)(d) requires the “person concerned” to demonstrate to the satisfaction of the competent authority that he or she is not at fault for the non-compliance. At the end of the appeal hearing it remained the position of the respondents that, even if the intimation had been posted, the appellant was at fault for not checking that it had been received.

[56] It is important to note that this no-fault exception goes beyond situations of force majeure, which is separately provided for in art 77(2). Accordingly something less than supervening impossibility is sufficient to excuse non-compliance. In this case the respondents approach the matter by asking whether there was anything else the appellant (or the MacKenzies) could have done to ensure compliance. Their answer to that is that there was: they could have contacted SAMU to check that the intimation had been received. In the respondents’ submission their failure to have done that puts them at fault and, therefore, beyond the scope of art 77(2).

[57] For our part, we are not persuaded that matters fall to be seen in that way. In our view what is to be expected of animal keepers has to be seen in the context of the structure created by the legislators, both European and domestic. That structure allows for postal intimation of animal movements and contains no requirement (whatever the complementary advice may say) beyond that. In creating such a system it must have been foreseen that intimations would get lost in the post. Had it been desired to place the risk of such loss on the keeper that could have been made explicit in the legislation but that has not been done. Instead, the system appears to have operated on the basis that timeous posting of the intimation is all that is required. Although the opportunity to ask the question at debate was missed, we doubt very much whether a penalty would have been imposed in respect of the animals in question had Mrs MacKenzie been able to produce proof of timeous posting to the inspectors. But, be that as it may, what is now being advanced by the respondents is a counsel of perfection: that whenever an intimation is made by post the keeper of the animals should contact SAMU to make sure it has been received. It would not be enough to rely on recorded delivery post because even it occasionally gets lost and may not in any event arrive timeously. That seems to us to be unrealistic both in terms of what is expected of animal keepers and what the staff at SAMU could cope with. Although Miss Pringle was not asked about this specifically, the distinct impression we got from her evidence was that if everyone who made intimation by post telephoned to check that it had been received the SAMU staff would never be done answering the phone. (Online checking would not necessarily avail the keeper at this stage since Miss Pringle’s evidence was that the notifications received were only entered onto the SCOTEID system some time after receipt, when the staff had worked their way through prior notifications.) To be sure there is the option of intimation of animal movements by email and that system is set up in such a way as generates an automatic acknowledgement of receipt, but not all keepers are on email and the fact of the matter is that use of the postal system is one of the permitted methods of intimation. It seems to us that what Mrs MacKenzie did on this occasion was simply to use one of the permitted methods of intimation and that more than that was not to be expected in the absence of a requirement (as opposed to advice) to check.

[58] It may be objected that this interpretation of art 77(2)(d) runs the risk of defeating the point of legislation. Anyone whose intimation does not reach SAMU can claim to have posted it and if they are believed that is going to be good enough. But that is not such an extraordinary result in a system which permits postal intimation but does not impose a requirement to check receipt. If the claim to have posted the intimation is not credible – as was the case in Innes – then the no-fault exception will not apply. No sensible keeper of animals is going to be tempted away from a rigourous system of postal intimation by the prospect that, if found out, they can always claim to have put the intimations in the post; it simply cannot be guaranteed to work and will certainly not work where there is repeat offending.

[59] In short, a system which allows postal intimation carries the inherent risk that things will be lost in the post. It could have been made a requirement of the SUSSS that keepers check that the intimation has been received. That would make clear that the inherent risk of things getting lost is to be borne by the keeper but that has not been done. In that situation where the keeper can satisfy the competent authority that he has posted the intimation timeously he cannot be said to be at fault: he has done all that is required of him.

Decision

[60] On the basis of the foregoing reasoning we conclude that the appellant was not at fault and that, in terms of art 77 of Regulation (EU) 1306/2013, no administrative penalty should have been imposed in respect of 82 of the animals thought to be ineligible. That leaves 12 animals which were ineligible for other reasons and we have therefore remitted the case to the appellants to recalculate any penalty excluding the 82 animals with which this appeal has been concerned.

Expenses

[61] We have followed our usual practice of allowing 21 days for the lodging of written motions and submissions on expenses.