Decision of the Scottish Land Court

Ashley Thom (Appellant)
Scottish Ministers (Respondents)

Case reference SLC/90/17
Iain F Maclean, Deputy Chairman, and John Smith
20 March 2019


Introduction and overview

[1] On 17 June 2015, the Appellant notified to the British Cattle Movement Service (“BCMS”) two off-movements of cattle from his holdings, one of eleven cattle from the Mark Farm, Creetown and the other of ten cattle from Slodahill Farm, Lockerbie. Both movements were stated in the notification to have taken place on 14 June 2015. The Appellant’s holdings were on 15 June 2015 the subject of an inspection, attended by representatives of local authority trading standards and environmental health officers, the Scottish Environmental Protection Agency and Police Scotland. Animal and Plant Health Agency staff also attended at the Mark Farm that same day.

[2] The Scottish Government Rural Payments and Inspections Division (“SGRPID”) did not participate in the June inspection, but on 2 December 2015 SGRPID commenced a cattle traceability inspection on the Appellant’s holdings. In the course of that inspection, the Appellant on 4 December 2015 yielded up to officials at the SGRPID Dumfries Area Office cattle passports and print-offs from his computerised holding register, the CATTLE RECORDS section of which [Production 17, at pages 10-11] disclosed that on 14 June 2015 he had sold twenty-one cattle, identified therein by reference to their sex, eartag numbers, dates of birth or purchase, and breed. In the column headed SALES VENUE was entered the name “Callaghan.” The final column in the CATTLE RECORDS section of the Appellant’s holding register was headed PRICE. In that column, the sum “666” was entered against fifteen of the cattle, and the sum “500” against the other six. The Appellant also produced to SGRPID officials copy Invoice No. 201614, dated 14 June 2015 and issued by “A & H Thom” to “Callaghan & Co” [Production 15], which bears to record the sale of those same twenty-one cattle on that date for a total sum of £13,000.

[3] Inquiries into the genuineness of the off-movements the Appellant recorded in his holding register as having taken place on 14 June 2015, and notified to BCMS on 17 June 2015, were triggered by the absence of any subsequent notification to BCMS of a corresponding on-movement of any of the twenty-one cattle to either a slaughter-house or another registered holding. The ultimate fate of those twenty-one cattle is the mystery that lies at the heart of this appeal, which has been brought by the Appellant against the decision of the Respondents to apply a 75% reduction to all 2015 Common Agricultural Policy (CAP) support scheme payments (Basic Payment Scheme (BPS) 2015, Less Favoured Area Support Scheme (LFASS) 2015, Scottish Suckler Beef Support Scheme (SSBSS) 2015) to which he otherwise would have been entitled, due to what the Respondents have characterised as intentional non-compliance with Statutory Management Requirement 7 (“SMR 7”) relating to identification, and registration of bovine animals, compliance with which is a requirement of the cross-compliance regime established by Regulation (EU) No. 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy (“Regulation (EU) No. 1306/2013”).

[4] Put shortly, it was, and is, the Respondents’ position that the livestock movements notified by the Appellant to BCMS on 17 June 2015 did not actually take place on 14 June 2015, but were, as it was put in the Respondents’ original decision letter dated 13 December 2016 [Production 27],

“submitted to BCMS by you, in your full knowledge that these mainly homebred animals were not alive or present on your holding on that date and by notifying BCMS of the movements you would circumvent the application of SMR 7 Cross Compliance penalties against your 2015 subsidy payments.”

The Appellant now accepts that he may have failed to meet the technical requirements of the applicable legislation by not entering in his holding register either the address of Mr Callaghan or the identification code of the holding to which the twenty-one cattle were being moved, but he insists that the livestock movements he recorded in his holding register, and notified to BCMS, did indeed take place. He argues that responsibility for a failure to notify a subsequent on-movement of the cattle with BCMS rests not with him, but with the purchaser of the cattle, and points out that where, as happened here, a farmer sells cattle to a dealer, the farmer can scarcely be expected to know their final destination. He invites the Court to accept that the twenty-one cattle moved off his holding on 14 June 2015 in the circumstances described by him, and to substitute for the 75% penalty for intentional non-compliance originally imposed by the Respondents, and later confirmed on review, a lesser 5% penalty based on a finding of merely negligent non-compliance with the relevant regulations.

Takeuchi TB145 excavator, serial number 14514289

[5] Contrary to what the contents of Invoice No. 201614 dated 14 June 2015 would seem to indicate, the Appellant contends that the agreed consideration received by him from Mr Callaghan in exchange for the twenty-one cattle consisted not of cash in the sum of £13,000, but of machinery to that value in the form of a Takeuchi TB145 excavator, serial number 14514289 (“TB14514289”) with sundry attachments, which was delivered to Slodahill Farm on that date by the lorry that later uplifted the twenty-one cattle. The Appellant first informed SGRPID officials that the twenty-one cattle had not been sold for cash, but exchanged for machinery, at a follow-up cross-compliance meeting held at the SGRPID Dumfries Area Office on 24 February 2016. It was only when he applied for a review of the Respondents’ decision, nearly a year later, on 10 February 2017, that the Appellant first produced to them Invoice No. 0581 dated 12/06/2015, headed “J & C Plant Hire”, White Towers, Armthorpe Road, Doncaster DN2 5RT, and addressed to “A Tom” [sic], Slodahill, Lockerbie [Document 2 within Production 2], to vouch for that element of the transaction. The White Towers Caravan Site is a gypsy and traveller site managed and maintained on behalf of Doncaster Council. Attempts to locate and make contact with J & C Plant Hire, which may, or may not, the Appellant told the court, be a business vehicle or trading name of Mr Callaghan, have been unsuccessful, and new information unearthed during the course of the review called further into question whether such a transaction ever took place.

Takeuchi TB145 excavator, serial number 14514299

[6] The Respondents later discovered that the Appellant on 16 June 2012 had purchased at auction in Ireland a Takeuchi TB145 excavator, bearing serial number 14514299 (“TB14514299”). They submit that this was the vehicle that features in the photographs [together making up Document 7 in Production 35] submitted to them by the Appellant in support of his application for a review dated 10 February 2017. The Appellant insists that the excavator shown in those photographs is TB14514289, acquired by him from Mr Callaghan in exchange for the twenty-one cattle on 14 June 2015, the implication of his evidence to that effect being that, at one time or another, he has owned two Takeuchi excavators of the same model, with serial numbers only one digit different from one another. The twenty-one cattle have never been traced. In the report, dated 5 June 2017, of their review [Production 4], the Respondents confirmed their conclusion that “on balance, rather than having moved off the holding, … [the cattle] are more likely to have died on farm at some point since their birth/movement onto the holding.”

The procedural hearing of 13 June 2018

[7] In an Order dated 7 March 2018, we appointed the appeal to be heard on Monday 25 June 2018 at 2 pm, with continuation on subsequent days as required, within the Sheriff Court House, Buccleuch Street, Dumfries. In advance of the scheduled proof diet, sundry motions were lodged by the parties, on the part of the Appellant for a discharge of the hearing on account of the non-availability on those dates of a prospective witness, and on the part of the Respondents in connection with the preservation and/or recovery of evidence. More particularly, the Respondents asked us to ordain the Appellant to attend at Slodahill Farm, on a date and time to be specified, for the purpose of producing TB1454289 to a Commissioner, in order that the Commissioner might examine and photograph it and its serial number plate.

[8] It was only at the procedural hearing, fixed by our Order dated 8 June 2018 to take place within George House, Edinburgh, on Wednesday 13 June 2018, to hear parties’ submissions on their respective motions, that it emerged that the Appellant was no longer in possession or control of TB14514289, he having parted with it at some point in time before 7 April 2017. The significance of that date for these purposes is that it was on 7 April 2017 that the Appellant and his then agent, David Brewster, attended at the SGRPID Dumfries Area Office, to be heard at a review meeting. There was nothing in the ensuing review report to suggest that the Respondents were made aware on that occasion that TB14514289 was even then no longer in the Appellant’s possession, and there was no evidence that the Appellant informed either the Respondents, or for that matter the court, of this fact before he addressed us at the procedural hearing on 13 June 2018. In the wake of this revelation, Counsel for the Respondents moved at the bar to amend the Respondents’ original motion, with the object of having the Appellant ordained, under reference to Rule 21(1)(b)(ii) of the Rules of the Scottish Land Court 2014 (“the 2014 Rules”), to attend at Dumfries Sheriff Court before the members of the court at the date and time previously fixed for the commencement of the appeal, to explain what had become of TB14514289, with the hearing of the appeal itself deferred to start upon the conclusion of that proceeding. We granted that motion, and, the Appellant’s motion for a discharge having been refused, the case proceeded in conformity with that proposed course of action.

The Appellant’s accounts of what became of TB14514289 and TB14514299

[9] At the commission which preceded the hearing on 25 June 2018, the Appellant stated that he had sold TB14514289 with a quantity of other items of agricultural machinery and a trailer to a dealer in Poland for the sum of €10,000. He had met the dealer, a Mr Mazadjec, with whom he had transacted in the past, at the Dumfries Show in the late Summer of 2016 and a deal was struck when the latter visited him at the farm before Christmas 2016. Although the price agreed was in Euros, the Appellant had insisted on being paid in Sterling, receiving approximately £8,000 in cash, a sum of money which he did not bank. TB14514289 was by the time of its sale in poor condition and would have been uneconomic to repair in this country, but it was destined for Poland or the Ukraine and would be cheaper to repair out in Eastern Europe. It was uplifted by Mr Mazadjec, who was accompanied on that occasion by another Pole, along with the other items being purchased by him, on a dreich day in January 2017. The Appellant had neither a postal nor an email address for the purchaser. He did claim to have a telephone number for him that he could provide, but not off the top of his head.

[10] During the Appellant’s subsequent evidence-in-chief, he explained that not only did he no longer own the other excavator that features in this story, TB14514299, but also that it did not come back to Scotland with him after he purchased it in Ireland in June 2012. According to his evidence, when he attended the auction in Dromore, he had intended to purchase several items, but in the event, having acquired only TB14514299, he decided that it was not worth his while sending over a lorry to collect a single 4½ tonne digger. He opted to leave TB14514299 at the auction site with a notice attached to it containing his contact details, looking for a haulier with spare capacity on a lorry to transport it back to Scotland for him. Instead, he received a phone call from “someone from Shropshire” who wanted to buy it, and a deal was done, the Appellant making a £500 profit on what he had paid for it.

The critical issue in this appeal

[11] It should be readily apparent from the contents of this introduction and overview of the issues that the stakes for the Appellant in this appeal could scarcely be higher. If we accept as true his account of his transaction with Mr Callaghan, the penalty imposed on him by the Respondents for intentional non-compliance with SMR 7 plainly cannot stand, and, as the Respondents accept, he could at worst be found liable only for negligent non-compliance, the penalty for which is capped at 5% of all his CAP support scheme payments for 2015. On the other hand, were we to reject that account and uphold the grounds upon which the Respondents justify finding him liable for intentional non-compliance and imposing a swingeing 75% financial penalty on him, the inescapable import of such a decision would be that the Appellant perpetrated, and has sustained over an extended period, with the assistance of manufactured documentary evidence, a deliberate fraud, the original object of which, it may be inferred, was to avoid the imposition of penalties for negligent non-compliance with record-keeping and reporting requirements (the absence from the holding of the twenty-one cattle being otherwise unexplained), but which was to backfire spectacularly upon him. The best real evidence that the Appellant ever owned TB14514289 (as distinct from TB14514299, the excavator he acknowledges he purchased at auction in Ireland in 2012), being no longer available to the court, we are left to rely essentially on hearsay and circumstantial evidence to determine that critical issue of fact, upon which depends the Appellant’s claim to have acquired it as the consideration for the twenty-one cattle in the deal with Mr Callaghan that gave rise to the off-movement he recorded in his holding register on 14 June 2015 and notified to BCMS on 17 June 2015, the veracity of which the Respondents have disputed.

The provisions of European and domestic law relevant to this appeal

[12] Regulation (EC) No. 1760/2000 of the European Parliament and of the Council of 17 July 2000 (“Regulation (EC) No. 1760/2000”) requires Member States to establish a system for the identification and registration of bovine animals (Article 1). Article 3 provides that this system must include both computerised databases and individual registers to be kept on each holding. Article 5 requires the competent authority of each Member State to set up a computerised database. Article 7(1) requires a “keeper” of animals (defined in Article 2 as a natural or legal person responsible for bovine animals, whether on a temporary or permanent basis, including during transportation or at a market) to keep an up-to-date register, and to report to the competent authority all movements to and from the holding and all births and deaths of animals on the holding, together with the dates of those events, within the period of time fixed by the Member State. Article 7(3) further provides that “each keeper shall supply the competent authority, upon request, with all information concerning the origin, identification and, where appropriate, destination of animals which he has owned, kept, transported, marketed or slaughtered.” Article 7(4) provides that the keeper’s register may be manual or computerised, and shall be available to the competent authority at all times, on request.

[13] Provision is made in domestic law for the administration and enforcement of the otherwise directly applicable Regulation (EC) No. 1760/2000 by the Cattle Identification (Scotland) Regulations 2007 (S.S.I. 2007/174) as amended by the Cattle Identification (Scotland) Amendment Regulations 2007 (S.S.I. 2007/312) and the Cattle Identification (Scotland) Amendment Regulations 2011 (S.S.I. 2011/412) (“the 2007 Regulations”). Regulation 3 of the 2007 Regulations provides that the Respondents are the competent authority in relation to Scotland for the purposes of Regulation (EC) No. 1760/2000. The provisions in relation to notification are contained in Schedule 2 to the 2007 Regulations. Paragraph 2(1) of Schedule 2 provides that in accordance with Article 7(1) of Regulation (EC) No. 1760/2000, the keeper of an animal moved on to or off a holding shall notify the Respondents of that movement. Paragraph 2(2) provides that the period determined for the purposes of Article 7(1) of Regulation (EC) No. 1760/2000 is three days from the date the animal is moved off the holding. The provisions in relation to record keeping are contained in Schedule 4 to the 2007 Regulations. Paragraph 1(1) of Schedule 4 provides that, in accordance with Article 7 of Regulation (EC) No. 1760/2000, a keeper of animals shall keep a register. Paragraph 1(2)(i) provides that the register shall contain the information required under Article 8 of Commission Regulation (EC) No. 911/2004 implementing Regulation (EC) No. 1760/2000 as regards ear tags, passports and holding registers. The information which, by Article 8 of Commission Regulation (EC) No. 911/2004, the register kept on each holding at least shall contain includes “(c) in the case of animals departing from the holding, the name and address of the keeper, with the exception of the transporter, or the identification code of the holding, to whom/which the animal is being transferred, as well as the date of departure.” Paragraph 1(5) provides that failure to comply with paragraph 1 is an offence. Paragraph 2 of Schedule 4 provides that any person who fails to comply with a request for information in accordance with Article 7(3) of Regulation (EC) No. 1760/2000 is guilty of an offence.

[14] The 2007 Regulations also define the powers of the Respondents for the purpose of administering and enforcing the foregoing European and domestic legislation. Regulation 10 empowers an inspector to enter at all reasonable hours any land or premises (other than premises used only as a dwelling) for that purpose. Regulation 10(2) provides that an inspector may – (c) require production of and examine any records in whatever form; and take copies of those records; (d) remove and retain any records or documents relating to the 2007 Regulations; (e) have access to, and inspect and check the operation of, any computer and any associated apparatus or material that is or has been used in connection with any records mentioned in (c) and (d) above, and require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford such assistance as the inspector may reasonably require; and (f) require, where records are kept by means of a computer, those records to be produced in a form in which they may be taken away. By Regulation 14, a person who – (a) intentionally obstructs any person acting in the execution of the 2007 Regulations; (b) without reasonable excuse, fails to give any person acting in the execution of the 2007 Regulations any assistance or information that that person may reasonably require for the purpose of carrying out functions thereunder; (c) knowingly furnishes to any person acting in the execution of the 2007 Regulations any false or misleading information; or (d) without reasonable excuse fails to produce any document or record when required to do so by any person acting in the execution of the 2007 Regulations, is guilty of an offence.

[15] By Article 93 of Regulation (EU) No. 1306/2013, the rules on cross-compliance consist of the statutory management requirements under EU law and the standards for good agricultural and environmental condition (GAEC) of land established at national level as listed in Annex II thereto. Annex II to Regulation (EU) No. 1306/2013 confirms that Article 7 of Regulation (EU) No. 1760/2000 forms part of the cross-compliance regime as a constituent element of SMR 7. The cross-compliance regime allows for the imposition of an administrative penalty, to be applied by means of reduction or exclusion of the total amount of the payments granted or to be granted to the beneficiary concerned in respect of aid applications he has submitted or will submit in the course of the calendar year of the finding, where the beneficiary fails to comply (whether by act or omission) with the rules on cross-compliance. Paragraph 1 of Article 99 of Regulation (EU) No. 1306/2013 provides that for the calculation of those reductions and exclusions, account shall be taken of the severity, extent, permanence and reoccurrence of the non-compliance found. Paragraph 2 of Article 99 provides that in the case of non-compliance due to negligence, the percentage reduction shall not exceed 5%, and in the case of recurrence, shall not exceed 15%. Paragraph 3 of Article 99 provides that in the case of intentional non-compliance, the percentage reduction shall in principle not be less than 20% and may go as far as total exclusion from one or several aid schemes and may apply for one or more calendar years.

[16] Article 38 (General rules concerning non-compliance) of Commission Delegated Regulation (EU) No. 640/2014 of 11 March 2014 supplementing Regulation (EU) No. 1306/2013 with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross-compliance (“Commission Delegated Regulation (EU) No. 640/2014”) fleshes out the concepts of severity, extent, permanence and reoccurrence as applied in the context of non-compliance. By paragraph 1 of Article 38, the reoccurrence of a non-compliance means the non-compliance with the same requirement or standard determined more than once within a consecutive period of three calendar years, provided that the beneficiary has been informed of a previous non-compliance and, as the case may be, has had the possibility to take the necessary measures to terminate that previous non-compliance. The extent of non-compliance shall be determined taking account, in particular, of whether the non-compliance has a far-reaching impact or whether it is limited to the farm itself (paragraph 2). The severity of a non-compliance shall depend, in particular, on the importance of the consequences of the non-compliance taking account of the aims of the requirement or the standard concerned (paragraph 3). Whether a non-compliance is of permanence shall depend, in particular, on the length of time for which the effect lasts or the potential for terminating those effects by reasonable means (paragraph 4).

[17] The next two articles of Commission Delegated Regulation (EU) No. 640/2014 elaborate on the calculation and application of administrative penalties in cases of negligence (Article 39) and of intentional non-compliance (Article 40). Paragraph 1 of Article 39 confirms the general rule that where a non-compliance is determined which results from the negligence of the beneficiary, the reduction shall, as a general rule, be 3% of the total amount of the payments to which the beneficiary otherwise would be entitled, but it goes on to state that the paying authority may, on the basis of the assessment of the importance of the non-compliance taking into account the criteria referred to in paragraphs (1) to (4) of Article 38, decide either to reduce that percentage to 1% or increase it to 5%. Article 40 stipulates that where the non-compliance determined has been committed intentionally by the beneficiary, the reduction to be applied shall, as a general rule, be 20% of the total amount, but that the paying agency might, taking account those same four criteria, decide to reduce that percentage to no less than 15% or to increase it to up to 100% of the total amount.

[18] In the context of cross-compliance, Article 95 (Information to beneficiaries) of Regulation (EU) No. 1306/2013 requires Member States to provide the beneficiaries concerned, where appropriate by the use of electronic means, with the list of the requirements and standards to be applied at farm level, as well as clear and precise information thereon. Regulation 3(1) of the Common Agricultural Policy (Cross-Compliance)(Scotland) Regulations 2014 (S.S.I. 2014/325) (“the 2014 Regulations”) provides that the Respondents are the competent national authority for the purposes of providing the list of statutory management regulations as required by Article 95 of Regulation (EU) No. 1306/2013. Regulation 5(1) of the 2014 Regulations provides that an authorised person, being, in terms of regulation 2(1) thereof, any person authorised by the Respondents to act in matters arising under, amongst others, the 2014 Regulations and Regulation (EU) No. 1306/2013 may exercise any of the powers specified in regulation 5 for the purposes of (b) establishing whether there has been a non-compliance; or (c) enforcing the 2014 Regulations or Regulation (EU) No. 1306/2013. These powers include the right to enter any land (excluding any premises used wholly or mainly as a private dwelling) (paragraph (2)); carry out any inquiries, checks, examinations, measurements and tests (paragraph (4)(a)); inspect any livestock, machinery, or equipment or any other thing (paragraph (4)(d)); have access to, inspect and copy any document or record (in whatever form it is held) (paragraph (4)(f)); and take a photograph or any other record of anything on the land (paragraph (4)(i)). A beneficiary must give an authorised person or a person accompanying an authorised person (in this regulation a “relevant person”) such assistance as the relevant person may reasonably request so as to enable the relevant person to exercise any power conferred by regulation 5: regulation 6 of the 2014 Regulations. Regulation 7(1) of the 2014 Regulations provides that it is an offence for any person to – (a) obstruct an authorised person (or a person accompanying an authorised person and acting under the authorised person’s instructions) in the exercise of a power conferred by regulation 4; (b) fail without reasonable excuse to comply with a request made under regulation 6; or (c) supply to an authorised person (or a person accompanying an authorised person and acting under the authorised person’s instructions) any information, knowing it to be false or misleading.

The Respondents’ cattle penalty calculator and payment reduction matrix

[19] The scheme devised by the Respondents for fixing penalties in respect of breaches of the requirements relating to cattle, is intended to provide a structure to enable the consistent application of standards across Scotland. It has been in place since 2005, albeit subject to some refinement in light of case law and discussion with EU auditors, and is to be further modified in 2019. It consists of a cattle penalty calculator and a payment reduction matrix. Any area of non-compliance identified during a cattle inspection is allocated a CII (cattle identification inspection) code which describes the breach, such as FM (failure to report movement to CTS [Cattle Tracing Service; i.e. BCMS] within legislative deadline); NF (animal details not found in farm records); MV (movement details incorrectly reported to CTS) and DD (failure to report animal death to CTS within legislative deadline). Each CII code has been allocated a severity score, being a numerical value within a range of 0 to 1, and has also been categorised as having, in relation to extent, either on farm or off farm effect, dependent on whether the breach is classed as having a far reaching impact, or an impact limited to the farm itself, and as either rectifiable or permanent. Taking the four CII codes referred to above, being those which, according to the Respondents, are engaged in the Appellant’s situation, FM and DD are each allocated a score of 1, characterised as having off farm effect, and as rectifiable. NF, also scored 1, is assessed as having off farm extent, and to be permanent. MV is scored 0.4, may be either on farm or off farm in relation its extent, and is rectifiable.

[20] The scores allocated to each discrepancy found (including multiple errors for a single animal) are added up, producing what is known as the absolute severity score. The absolute severity score is then converted into to a percentage severity score by dividing it by the number of animals inspected and multiplying that figure by 100. The use of absolute and percentage severity scores aims to provide proportionality in the assessment of severity. The absolute severity score and the percentage severity score thus arrived at are then assessed against threshold severity levels (very low, low, medium and high) laid down respectively in an absolute severity table and a percentage severity table, with the higher figure being taken forward in determining the level of financial penalty. If the inspection has resulted in the identification of at least one off farm error, then the inspection is considered to have an off farm effect. Similarly, if the inspection result includes at least one permanent error, then the inspection is considered to have a permanent effect. The Respondents’ payment reduction matrix lays down for intentional breaches of high severity having off farm and permanent effect, a reduction in the 75 – 100% range.

The penalty applied in the Appellant’s case

[21] In the present case, the Respondents allocated multiple CII codes (FM, NF, MY and DD) to each one of the twenty-one cattle in respect of which the Appellant on 17 June 2015 had notified off-movements on 14 June 2015. This produced an absolute severity score of 71.4 and a percentage severity score of 13.12%. In the Respondents’ absolute severity table, a score in excess of 10.01 was rated “high”. A percentage severity score of 13.12% fell into the “low” category in the percentage severity table, but with the higher of these two figures determining the level of the penalty to be applied, the Appellant’s breaches of SMR 7 are assessed as being of high severity. The Respondents having concluded that the Appellant was responsible for intentional breaches of high severity having off farm and permanent effect, they imposed on him a 75% penalty, noting in their decision letter dated 13 December 2015 that:

“Your movement notification actions regarding these 21 cattle frustrates the objectives of the system for the identification and traceability in that the whereabouts/fate of these cattle is not known, causing the CTS database to be inaccurate and the untraceable 21 cattle creating a potential disease risk.”

[22] The inspection identified a number of other breaches of SMR 7, characterised by the Respondents as negligent rather than intentional, but because of capping of the penalty for first time non-compliance within the same cross-compliance area, no additional penalty was applied in respect of these, and we need say no more about them here. It was observed in the Respondents’ original decision letter dated 13 December 2016 that:

“the seriousness of your actions was further compounded by the fact that despite multiple requests for information being made by SGRPID inspectors to allow the progression of the inspection, including investigations into the movements of the 21 animals, you failed to supply information timeously and in some cases failed to supply this information completely, for example verification of the alleged sale of cattle moved on the 14th June 2015.”

We would comment on this passage that it is not clear from the manner in which it is expressed to what extent, if at all, this finding played a part in determining the level of the penalty imposed. On the face of it, the only way in which it might have done so was in somehow influencing the Respondents’ conclusion that the breaches in relation to the twenty-one cattle were the result of intentional non-compliance rather than of negligence. That breaches found to be the result of intentional non-compliance attract a potentially much heavier penalty than breaches found to be the result of negligence makes this a critical distinction, in connection with which the various European and domestic regulations cited to us by Counsel for the Respondents appear to have nothing to say.

[23] In Blythe v Scottish Ministers (RN SLC/10/12) Order and Note of 15 August 2012 at paragraph [14], an appeal by a farmer against a penalty imposed as a result of what the Respondents had found to be intentional non-compliance with SMR 18 concerning the welfare of farm animals, Counsel who then appeared for the Respondents, having confirmed that there was no definition of “intentional” in the legislation, European or domestic, drew the attention of the court to guidance issued by the Respondents in their then current “Cross Compliance Notes for Guidance” at paragraph 208, to the effect that:

“Intentional non-compliance has been defined [our emphasis] as being the same as its legal meaning within criminal and civil law. Very broadly, an intentional non-compliance is where the applicant has knowingly breached the rules that are set out with an understanding of what he was doing and the likely consequence of his actions…”

Counsel now appearing for the Respondents informed us that she had been unable to trace the source of that definition. In Blythe, the Respondents urged the court not to take too technical an approach; intent should be given its plain meaning, which “involved a resolve or a purposive decision to act in a particular way [at paragraph [16].” In the view of the court, set out at paragraph [17]:

“The intention that is required here is … simply the intention not to comply with the requirement. It requires a deliberate decision not to do what one knows the requirement says one should do in the particular circumstances that have arisen.”

In the particular circumstances of the present appeal, we need say no more about intention, because if we accept the Appellant’s account of the transaction which he claims gave rise to the off movements he recorded and notified, then the Respondents, as we understand their position, do not dispute that a finding of intentional non-compliance could not be supported. On the other hand, if we do not accept that account, it seems to us necessarily to follow that the non-compliance could not be anything other than intentional, howsoever that concept is defined.

[24] The penalty notified to the Appellant in the decision letter dated 13 December 2016 was confirmed on review, but it is notable that no weight is placed in the review report dated 5 June 2017 upon the consideration discussed in paragraph [22] above. The Appellant, in any case, rejected any suggestion that he had failed to co-operate with the Respondents in response to their requests for information. He made the point, in relation to what passed at the follow up cross-compliance meeting on 24 February 2016, that the focus of the SGRPID officials (Gordon William McMiken and Andrew Johnston) who conducted that meeting was not on what had happened to the twenty-one cattle; that subject had been raised only towards the very end of a long afternoon spent discussing sundry other minor discrepancies or omissions they had identified in his records. His position, in essence, was that if he did not supply relevant information at that meeting, it was because he was not being asked the right questions.

[25] Having had the opportunity to scrutinise the Respondents’ notes of that meeting [Production 6], and to hear Mr McMiken in evidence, we are inclined to think there is some force in that argument. That said, however, it is an argument that goes more to process than substance. Whilst it became increasingly clear to us as we watched them lock horns in court that the relationship between the Appellant and Mr McMiken was marked by mutual mistrust and a degree of animosity, we do not consider that any useful purpose would be served by relating, let alone trying to assess the merits of, their respective complaints about the conduct of the other during the course of the inspection process, because, as we see it, nothing turns on any of that material in the context of this appeal. Mr McMiken, we are bound to observe, was not a convincing witness. The Respondents had lodged in process [Production 50] a witness statement from him setting out the substance of his evidence, the contents of which we suspect he had attempted to learn by rote: when confronted by questions for which he had not prepared, including questions posed by members of the court, his answers tended to be long, rambling, and to bear little obvious relation to what he had been asked. That said, however, to the extent that the evidence he gave was relevant, it was not controversial: the potentially more tendentious elements of his evidence pertain to the aspects of the Appellant’s conduct over the course of the inspection about which he complains, and vice versa, and as such have no bearing on the critical issue we have to decide.

The review and appeal procedures

[26] The procedure that governs the present appeal is to be found in the Rural Payments (Appeals)(Scotland) Regulations 2015 (S.S.I. 2015/194) (“the 2015 Regulations”), which came into force on 12 June 2015. Regulation 4 of the 2015 Regulations provides that beneficiaries of specified CAP schemes may apply to the Respondents for a review of their original decision in relation to payment of certain agricultural subsidies and other rural payments. An appeal then lies at the instance of the beneficiary against the decision of the Respondents following review, on any issue of fact or law, to the Land Court: regulation 8(1). In determining an appeal, the Land Court may - (a) confirm the Respondents’ decision; (b) amend or alter that decision in any respect which it considers appropriate; (c) substitute for that decision any decision which it considers appropriate; or (d) refer the matter back to the Respondents to decide the matter of new, and any such determination of the Land Court is binding upon the Respondents and the appellant: regulation 9(2). In the interests of completeness, it may be added that by virtue of regulation 9(4), any party to a matter determined by the Land Court by virtue of the 2015 Regulations may appeal to the Court of Session against the determination on a question of law.

[27] An appeal under regulation 8(1) is a full appeal, and not merely a review of the Respondents’ review, and may entail the Land Court hearing the evidence and submissions of the parties of new as a preliminary to determining the appeal, and it is upon that basis that we approached the present proceedings: cf. Blythe v Scottish Ministers, op. cit., at paragraph [13]. The Appellant was inclined, in the course of cross-examining the Respondents’ witnesses, and thereafter in his written submissions, to dwell upon what he perceived to be deficiencies or biases on the part of SGRPID officials in their conduct of the inspection and the subsequent decision-making and review processes, but whatever the merits of his various complaints in these respects, some of which, he indicated to us, he is minded to pursue through other official channels, we take the view that these matters are irrelevant to our present deliberations. For the purposes of the appeal, the two SGRPID officials who testified were giving evidence essentially as witnesses to fact, speaking to the information they had gathered and upon which they had relied in reaching the conclusions they did, and explaining how they had applied the relevant regulations, cattle penalty calculator and payment reduction matrix to the facts as they had found them in the Appellant’s case.

The hearing

[28] We heard evidence in Dumfries Sheriff Court between 25 and 29 June 2018. The case not having been completed within that time, it was adjourned and a continued hearing, to take the evidence of any remaining witnesses and afford parties the opportunity to make their oral closing submissions, was scheduled for 4 and 5 December 2018 at George House, Edinburgh, that venue being the preference of both parties. The Appellant represented himself in the proceedings in Dumfries, with Ms Laura Thomson, Advocate, one of the Scottish Government’s Standing Juniors, appearing for the Respondents, as she had at the procedural hearing on 13 June 2018. She was accompanied throughout the proceedings by her instructing solicitor, Mrs Aileen Nimmo of the Scottish Government Legal Directorate.

The motion for discharge of the continued hearing

[29] On the afternoon of Friday 30 November 2018, a public holiday when the offices of the court were shut, the court received an email from the Appellant’s wife, Mrs Helen Thom, to report that her husband, on the morning of Tuesday 27 November 2018, had been involved in an on-farm quad accident, which had resulted in him suffering post-impact amnesia, headaches and mobility and balance issues. He had initially attended at the A & E department of Dumfries Royal Infirmary, but had required to see his general practitioner that day (Friday 30 November 2018) following a fall at home and a further blow to the head. His GP, we were informed, had confirmed that the Appellant had “ongoing concussion and that this type of brain injury usually takes some weeks to heal.” Mrs Thom’s email related that her husband could not recall all the details of the case currently before the Land Court and therefore would not be in any fit state to conduct the hearing on 4 and 5 December 2018. She accordingly, on his behalf, moved for an adjournment of that hearing until he had recovered, producing in support of her motion what she characterised in her email as “the Doctor’s note he had been issued with this morning”. On examination when the court re-opened on 3 December 2018, “the Doctor’s note” proved to be no more than a statement of fitness for work for social security or statutory sick pay purposes, which merely stated (not on sole and conscience) that the Appellant was “not fit for work” from 30 November 2018 to 7 December 2018. It also related that his doctor would not need to assess his fitness for work again at the end of that period. The court contacted Mrs Thom by email just after mid-day on Monday 3 December 2018, advising her that the information and evidence so far supplied was insufficient to secure an adjournment of the hearing, and directing her to the decision of the Sheriff Appeal Court in McCallion v Apache North Sea Limited and Others [2018] SAC (Civ) 1, in which what the Scottish courts require of a medical certificate was set out in clear terms. Mrs Thom was told that, as matters currently stood, the hearing the following day would be going ahead, and that any further medical evidence in support of the motion should be submitted as a matter of urgency.

[30] The following morning, Mrs Thom tendered to the court a letter, dated 4 December 2018 and signed by the Appellant, authorising her to represent him for the limited purpose of asking for an adjournment. Under reference to rule 100(3)(a) of the 2014 Rules, we permitted Mrs Thom to represent her husband within the scope of the letter of authority. The Respondents having indicated their intention to oppose the motion to adjourn, we rose for a time to await news from Dumfries where, we were given to understand, efforts had been made the previous afternoon to obtain a medical certificate in appropriate terms confirming the Appellant’s unfitness to attend court. When the court first sat at 10 am, Mrs Thom appeared still to believe that there remained some prospect that such a certificate might yet be forthcoming that morning, but following a short adjournment to afford her the opportunity to contact the GP surgery to ascertain the up-to-date position, she returned to inform us that she had been told that the certificate would not now be available until Friday 7 December 2018 at earliest. It followed that, in moving her motion to adjourn, she had to rest on the medical evidence already provided, the deficiencies of which previously had been pointed out to her, and which Counsel for the Respondent pressed home in her oral submissions in opposition to the motion. The court having refused her motion for an adjournment, Mrs Thom then withdrew from and took no formal part in the subsequent proceedings.

[31] Where, at the place, date and time fixed for a hearing, the case is called and appearance is made by or on behalf of the respondent but not by or on behalf of the applicant, rule 29(1) of the 2014 Rules provides that –

(a) the case may be continued;

(b) the court may, in respect of the failure to appear, dismiss the case (whether with or without expenses); or

(c) the respondent –

(i) may, so far as is consistent with the order appointing the hearing or as is allowed by the court, proceed to lead evidence in relation to any matter of fact which is in dispute or make submissions; and

(ii) having led such evidence or made submissions, may move for an order disposing of the subject matter of the case.

Mrs Thom having withdrawn from the proceedings but having, at our invitation, remained within the courtroom, we proceeded to entertain Counsel for the Respondents’ motion in terms of rule 29(1)(b) for dismissal of the case (which we refused), and her alternative motion, in terms of rule 29(1)(c)(i), to allow the Respondents to make closing submissions, it having earlier been established that neither party wished to call any further witnesses. We acceded to that motion, and Counsel for the Respondents thereafter spoke to a comprehensive written submission, a copy of which was tendered to Mrs Thom. Having heard Counsel, we by Order dated 4 December 2018 appointed the Appellant to lodge his closing submission in support of his appeal in written form on or before Monday 7 January 2019, which he duly did. We were satisfied that, through resort to these expedients, the Appellant was not in any way prejudiced in presenting his case by our decision to refuse the application for an adjournment in the absence of proper medical evidence to vouch for his unfitness to attend court on 4 December 2018.

The witnesses

[32] At the part of the hearing that took place in Dumfries Sheriff Court, the Appellant himself gave evidence, and called as a witness Ms Samantha Ansell, who resides in a farm cottage at Slodahill Farm. Her testimony focused on events at Slodahill Farm in which she had been a peripheral participant on what, on the Appellant’s account, was the day of the critical off-movement of cattle on 14 June 2015. The Appellant had hoped also to call as a witness David Colquhoun, a former employee of the Scottish Agricultural College (SAC), who was present at the farm inspection on 2 December 2015 and attended with the Appellant at the follow-up cross-compliance meeting that took place at the SGRPID Dumfries Area Office on 24 February 2016. Mr Colquhoun’s state of health precluded his attendance at the June 2018 diet. In our Order dated 13 June 2018 refusing the Appellant’s motion for a discharge of the hearing, we had expressly reserved to him the option of taking Mr Colquhoun’s evidence as an interposed witness at any continued hearing, should the latter’s condition have improved sufficiently to permit him to attend, and in our Order dated 8 August 2018 appointing parties to be heard at the continued hearing scheduled to commence on 4 December 2018, we took the opportunity to remind the Appellant, in a Note appended thereto, of the other means available to litigants (e.g. a commission or by way of affidavit) by which they might seek to secure the evidence of witnesses who are unable, for one reason or another, to attend the court in person. Ultimately, however, the Appellant neither called Mr Colquhoun as an interposed witness nor sought to obtain and preserve his testimony by an alternative means.

[33] The Respondents led evidence from Mr McMiken, an Agricultural Officer employed by SGRPID at their Dumfries Area Office, who carried out the investigations that informed the contents of the Respondents‘ original decision letter dated 13 December 2016, and who attended the follow up cross-compliance meeting with the Appellant on 24 February 2016 with his colleague Mr Johnston. Douglas James Petrie, now SGRPID Head of Area Offices and Head of Agricultural Profession, who conducted the review of the original decision, was also called to give evidence on behalf of the Respondents. The Respondents had included on the list of witnesses they intimated before the hearing the names of Holly Marie Cooke, a Service Administration Manager employed by Takeuchi MFG (UK) Ltd., John Boyd Dunlop Drive, Kingsway Business Park, Rochdale OL16 4NG and Treve Jenkyn of The Equipment Register (”TER”), Wessex House, 40 Station Road, Westbury, Wiltshire, BA13 3JH, but these witnesses were spared from having to travel to Scotland to attend at the hearing when parties sensibly entered into a joint minute in which they agreed, for the purposes of the appeal, the substance of their evidence. The Respondents included on their list of witnesses, but did not call, Quentin Donald, Principal Agricultural Officer at the SGRPID Dumfries Area Office. The Respondents’ decision letter dated 13 December 2016 was issued in his name, but at the hearing, it emerged that this did not reflect the reality: the author of the decision letter was actually Mr McMiken, with input from SGRPID Head Office at Saughton House, Edinburgh. The Respondents tendered at the bar a corrective minute to confirm that position, which contradicted what they previously had averred in their pleadings.

The evidence

Background to the sale of the twenty-one cattle

[34] The Appellant, a Cumbrian who was not a farmer’s son, although he had farming antecedents in the previous generation, obtained a degree in agriculture with First Class Honours from Newcastle University. After graduating, he worked for the Milk Marketing Board for a couple of years, then moved to Scotland, where he was employed for five years as a Farm Manager at the East of Scotland College of Agriculture and University Farms (now part of SAC). He then took over the job of General Manager at Mackie’s Dairies in the North East of Scotland, then Scotland’s largest dairy, when Brian Pack moved on to Aberdeen & Northern Marts. He accumulated sufficient capital to purchase a 140 acre farm in Aberdeenshire, which he worked part-time. This expanded over time to 300 acres, with the farming activities thereon consisting of both arable and livestock. For a year, he worked for a German agricultural consultancy firm, engaged in assisting the agricultural sector in Eastern Europe convert from communism to capitalism. He also participated in a business venture that involved buying two companies in the food processing industry having premises in Dundee and Inverbervie out of receivership, but this foundered when its financial backer ran into difficulties in the wake of the BSE crisis in 1997. After meeting and marrying his wife, Helen, the Appellant took Slodahill Farm, part of Castle Milk Estate, Lockerbie, Dumfries-shire on a 15 year limited partnership tenancy. Selling most of the land he owned in Aberdeenshire, the Appellant was in a position to purchase the Mark Farm in 2007. The two farms were operated together, notwithstanding the distance between them. This was not ideal, but the Appellant had been unsuccessful in his offers for other farms closer to Slodahill. The Appellant and his wife and family lived in the farmhouse on the Mark Farm. The Appellant employed Polish workers on the farms, including one at Slodahill who exhibited entrepreneurial instincts and engaged in buying and selling machinery. He would accompany the Appellant to machinery sales where the Appellant would settle up for the machinery the Polish worker had purchased in lieu of his wages.

[35] The Appellant, when purchasing the Mark Farm, took over its entire existing stock of some 600 sheep and 30 cattle. He maintained the sheep flock at that number, but increased the number of cattle to 150. From 2010 onwards, he stopped making his own conserved forage, instead buying in hay and straw from Yorkshire. He pursued with his sheep and cattle what he described as a “simplified management style”, based on a New Zealand-type “easycare” system. He greatly admires how they farm livestock in Australia and New Zealand, countries he has visited at least ten times. An illustration of how his system worked in practice was provided by the Appellant’s boast that over his last 1000 calvings, he had not had to intervene once. He acknowledged, in answer to questions from the Court, that this did not mean that he hadn’t experienced “the odd dead calf”, but he insisted that because his cattle were out-wintered, they were “fit and lean and mean” when they calved in the spring. Until last winter, when the severity of the weather saw demand for hay spike and costs increase by a factor of 3, the economics of buying in hay had always been very favourable, because, only feeding hill cows, he could get away with buying poorer quality, and thus cheaper, hay. The Appellant acknowledged that the cattle he bred and sold would not head the lists in the published sales reports; his approach was one of lower outputs, generated by correspondingly lower inputs. He indicated also that he was aware that his method of farming did not always go down well with either neighbours or SGRPID inspectors, “because we don’t go round [the farm] all the time.”

The failed embryo transfer project

[36] The Appellant, in evidence, explained the circumstances in which he had twenty–one cattle available to sell privately to Mr Callaghan in June 2015. This came about principally due to the failure of an embryo transfer (“ET”) project in which he had engaged. The Appellant had determined to become involved in breeding pedigree Belted Galloway cattle and was seeking to upgrade his stock. It was his testimony that he had a particularly good Belted Galloway cow named Mosston Muir Primrose, bred in New Zealand and with better genetics than could be obtained in this country, from which he was keen to take embryos. Mosston Muir Primrose was flushed twice in 2013 and once again in 2014, but the exercise, which cost a lot of money, turned out to be a “disaster”. There was one successful flush, but none of the recipient cows, being mostly Belted Galloway crosses kept specifically for the purpose, held and the project was brought to an end when Mosston Muir Primrose, in an unplanned pregnancy, produced a calf to an unknown bull. The Appellant lodged in process sundry paperwork and veterinary invoices dating from 2013 [Production 13] that confirm that he engaged in an ET project in that year, but nowhere in that paperwork are any of the recipient cows identified by number. In his application for a review, the Appellant produced to the Respondents a schedule listing the twenty-one cattle purchased by Mr Callaghan, in which nine are identified by the Appellant as having been intended recipient cows from the failed ET project.

The Appellant’s dealings with Mr Callaghan, including his efforts to trace him

[37] The Appellant’s account of the course of this particular transaction with Mr Callaghan began at a sale in Lanark. Mr Callaghan was someone with whom the Appellant had dealt in the past; he had purchased some cattle from the Appellant in 2007 and had also delivered hay to him. He was elderly, had an Irish accent, and was a general dealer whom the Appellant saw a few times a year at hay or machinery auctions in the Border country. On this occasion, Mr Callaghan had TB14514289 on the back of his lorry. The Appellant initially assumed he would be putting it into the auction, but it transpired that he was there to buy something else with which to load up his lorry. TB14514289 was quite a rare model, a “grey” import which had not arrived in this country through Takeuchi’s own distribution system. It featured a special swivel mechanism that facilitated digging right up close to the sides of walls or buildings, and the Appellant expressed an interest in buying it. Mr Callaghan, in turn, asked the Appellant if he had any cattle “he needed to get rid of”. The Appellant had the cattle from the failed ET initiative and others he wanted to dispose of, and Mr Callaghan came with him to Slodahill Farm that day to see them. The cattle were three or four years old, small and lean, weighed between 240 and 260 kilos, and were not in calf. The slaughterhouses were not interested in cattle of this size, because it cost as much to slaughter a small as a large animal. Notwithstanding these considerations, Mr Callaghan, according to the Appellant, offered him what he referred to in evidence as a “ridiculously large price”; more than he would have got putting them through the ring at Carlisle mart: 15 cattle @ £666 each + 6 cattle @ £500 each. The total amount payable on that calculation would be £12,990, but Invoice No. 201614 dated 14 June 2015 shows the price of the 15 cattle @ £666 each as £10,000 rather than £9,990, a rounding up of £10. Two or three telephone calls between the Appellant and Mr Callaghan ensued, the outcome of which was that it was agreed that the excavator would be delivered to, and the cattle uplifted from, Slodahill Farm by Mr Callaghan on a Sunday afternoon.

[38] Eleven of the cattle being sold were at the Mark Farm, where the cattle passports for all twenty-one cattle were also kept, and so, as recounted by him, the Appellant on Sunday 14 June 2015 loaded the Mark Farm cattle into a trailer and set off for Slodahill to rendezvous with Mr Callaghan’s representative there and deliver the cattle and their accompanying passports to him. The Appellant was stopped by the police at Gatehouse of Fleet on account of the number plate on his trailer not matching that on the towing vehicle. The Appellant had to return home to change the number plate on the trailer and in consequence was late arriving at Slodahill Farm. The excavator had already been unloaded from the lorry and the cattle from Slodahill Farm loaded onto it. The Appellant looked over the excavator and the cattle tags were checked. The lorry driver, described by the Appellant as being of Romany descent, gave the Appellant Invoice No. 0581 dated 12/06/2015, headed “J & C Plant Hire”. The Appellant in turn gave the lorry driver the cattle passports and Invoice No. 201614, dated 14 June 2015, headed “A & H Thom”, which his wife had typed up for him.

[39] The Appellant spoke somewhat jokily of visiting the address given for J & C Plant Hire on Invoice No. 0581 dated 12/06/2015 in the Summer of 2017, whilst on other business in the area, in an effort to trace Mr Callaghan. He did not receive any assistance in this regard from the residents of the Doncaster site: people did not answer their doors to him, for which he blamed the fact that he was too well dressed, wearing a suit, at the time, so that it would have been assumed by them that he was visiting in some official capacity. The gossip around the marts the Appellant had heard suggested that Mr Callaghan, who had health issues, had returned to Cork, the implication we took from how the Appellant expressed it being that he was thought to have returned home to die.

The documentary productions said to corroborate the fact of the transaction

[40] The Appellant produced a bank statement for the period 30 May – 30 June 3015 to demonstrate that his business was operating close to its overdraft limit and thereby vouch for his inability to purchase TB14514289 [Document 3 in Production 35] with cash at the time. Also produced were print-offs from the computerised cash book of the business containing ledger entries recording a £13,000 purchase from “J & C Plant Hire” of a “Takeuchi TB145” on 14 June 2015 and a sale to the same value to Callaghan & Co of “19 cows/2 bulls”, along with a copy VAT return for the period 1 June 2015 – 31 August 2015 in which the amounts entered for the total value of purchases and all other inputs and of sales and all other outputs excluding any VAT included this input and output [Document 4 in Production 35]. No VAT was payable either way in respect of this transaction.

Ms Ansell’s evidence

[41] Ms Ansell has resided in her cottage on Slodahill Farm since Christmas Eve 2006. Her home is one of four semi-detached farm cottages accessed off a fork in the long drive that also serves the farmhouse and farmyard at Slodahill. Her cottage is situated in an elevated position relative to the farmyard, which consists of a top yard and a main bottom yard in which cattle handling and storage facilities are located. Her home’s elevated location affords her a view of most of the bottom yard.

[42] Following the attendance of the Appellant’s then agent, Mr Brewster at the review meeting with Mr Petrie at the SGRPID Dumfries Area Office on 7 April 2017, the Appellant submitted to the Respondents a letter addressed to David Brewster at his business address, The Control Tower, Perth Airport, Scone, Perth PH2 6PL. The typed letter, dated 20 April 2017 [Production 49], had been signed by Ms Ansell and was in the following terms:

“Dear Mr Baxter [sic],

This is to confirm that on the 14th June 2015, a lorry collected cattle from Slodahill Farm, Lockerbie.

I recall the event as the driver had to wait about 3 hours for Mr Thom to arrive with the necessary paperwork. Mr Thom telephoned me and asked me to tell the driver he had been stopped by traffic Police on his way to Slodahill for a faulty numberplate.

The driver was rather annoyed and I made him a cup of tea while he waited for Mr Thom to arrive. The lorry left the farm at about 7.00 pm.”

[43] It emerged in the course of her evidence that on some date prior to 20 April 2017, Ms Ansell had received a telephone call from a male person, whose name she could not remember but whom she assumed to be the subsequent addressee Mr Brewster (or Baxter), asking her to write a letter saying what it was she had seen about the lorry being on the farm and what had happened on that particular day. She had not herself written or typed the letter, although its contents accurately reflected her position. The letter had been sent to her for her to confirm its contents and sign. It having been explained to her that Mr Brewster was the Appellant’s agent, she assumed that it was written by him, although the validity of such an assumption sits somewhat uneasily with the salutation to “Mr Baxter”, it scarcely seeming credible that Mr Brewster, as the author of the letter, would have got his own name wrong. Ms Ansell could not remember how long before 20 April 2017 she had received the telephone call asking her to write such a letter. Giving evidence, Ms Ansell, who volunteered that she got “muddled up” with dates, initially confused the telephone call she had received from the person she now assumed to be Mr Brewster with another call she had received on her mobile on her birthday, 30 May, whilst out riding, from a man who was inquiring about the same subject-matter. She explained that where, as in that instance, a date could be associated with a particular event, she found it easier to remember. It was related by Mr Petrie in his report of the review that on 30 May 2017 he had spoken on the telephone with Ms Ansell about the contents of the letter dated 20 April 2017 she had signed, and so it seems likely that the telephone call she recalled receiving on her birthday took place on 30 May 2017 and came from him. Ms Ansell was clear in her evidence that the Appellant had not asked her to write the letter, but she thought that the Appellant must have told the person to whom she spoke to contact her, which would seem to imply that he must, at that stage, have indicated to her what event she was being asked to remember.

[44] Ms Ansell’s oral testimony did not significantly deviate from or elaborate upon what was recorded in the letter dated 20 April 2017 signed by her. She described the lorry driver as being average in build, about the Appellant’s own height but younger. She thought there had been a “wee and rusty” digger in the yard that afternoon that had not been there earlier, but her answers to that effect were somewhat tentatively given, and she could not, ultimately, say how it had come to be there. Why the incident had stuck in her mind was because the Appellant generally arranged his own livestock transport, and it was unusual for something to be happening on the farm without the Appellant himself being present. She was clear in her evidence that the animals were in the lorry when she went down to the yard: she could see the legs of the cattle through the ventilation gaps in the sides. She could not say whether they were being collected from the farm or being dropped off there. In the interests of completeness, we would note that, although she did not speak to this in her oral testimony, it is recorded in his review report that when Ms Ansell spoke to Mr Petrie over the telephone on 30 May 2017, she related to him that she remembered the specific day of the incident on the basis that it happened “after a local Gala Day which she attended.”

The Takeuchi and TER evidence

[45] The agreed evidence from the representatives of Takeuchi and TER was to the effect that TB14514289 was shipped from Nagano in Japan to Semco in Australia on 31 January 2005. In 2017, Takeuchi sold 2886 diggers through their distributors in the United Kingdom (“UK”). Ms Cooke, a Service Administration Manager with Takeuchi, who has worked for Takeuchi for eighteen years, could not comment on the costs involved in shipping a digger from Australia to the UK, but given the ease with which Takeuchi diggers can be sourced in the UK, it was, in her opinion, unlikely that TB14514289 was circulating on the UK market. Although this was not a matter of agreement in the Joint Minute, we would not understand it to be in dispute that Semco is not a Australian place name, but rather the name of an Australian heavy equipment sales and service organisation.

[46] TER maintains a database of thefts of plant and machinery. The database is available to the police and insurance companies for inspection. Members of the public can search the database on-line to ascertain whether plant or machinery has been registered as stolen, or is subject to outstanding finance. A check is carried out against the serial number of the plant or machinery. A member of the public wishing to use this service must first open an account with TER. This is done on-line. Customers must provide their name, email address, physical address and telephone number. Having done so, on payment of a fee, a customer may carry out a check against the serial number(s) of item(s) of plant or machinery. Customers require to pay per check. There are no “2 for 1” deals. On 18 January 2017, an account was opened by an Andrew Thom, who gave his business name as Slodahill Farms, and his address as Slodahill, Lockerbie, DG11 2NF. He supplied also an email address and telephone number. The email address is the same as that provided by the Appellant in his request for a review [Production 2]. A check was then carried out against both TB14514299 and TB14514289. The searches confirmed both serial numbers to be genuine and to relate to Takeuchi diggers. Neither digger had been reported stolen or been the subject of an insurance claim.

[47] Under cross-examination, the Appellant acknowledged that his fourteen year old son Andrew, whom he described as a computer and digger geek, had carried out a TER search at his request before the sale of TB14514289 to Eastern Europe. The Appellant explained that he had been caught out before purchasing machinery upon which there was outstanding finance. When pressed as to why his son had searched against the two serial numbers, the Appellant speculated that perhaps he couldn’t read the serial number on the photograph of the plate he had given him. He also suggested that you got two searches for the price of one. This testimony was given by the Appellant two days before the Joint Minute agreeing the substance of the evidence of Ms Cooke and Mr Jenkyn was lodged, and so we take it that it is now accepted by him that TER did not offer any such “2 for 1” deal in January 2017.

[48] Put to him by Ms Thomson that if he had indeed already owned TB14514289 for some eighteen months, he would know it had not been reported stolen and was not subject to outstanding finance, the Appellant emphasised that you would check if the vehicle had been bought from a “dodgy dealer” like Mr Callaghan. You didn’t check against them when you weren’t selling them. You didn’t need to check before you bought if you were buying from a reputable dealer. It was put to him on behalf of the Respondents that he instructed the TER search because if it had been reported that a Takeuchi excavator bearing the serial number TB14514289 had been stolen, or that there was finance outstanding on it, that would “scupper your story to Scottish Ministers”: the only reason to carry out a search against both serial numbers a fortnight before submitting his application for a review of the Respondents’ decision on 10 February 2017 was to “ensure there was no spanner in the works”, because he knew the Respondents would themselves carry out such a check. This prompted from the Appellant the rejoinder that he similarly would be aware that the Respondents would check that he had checked, as it would, indeed, appear that they did.

The photographic evidence

[49] At the hearing, the witnesses and the members of the court were referred, in the absence of the actual vehicle(s) in question, to a number of poorly reproduced photographs of excavators and their serial number plates, and much time was spent poring over them as the Respondents attempted to demonstrate that they all featured the same Takeuchi TB145 excavator, and the Appellant that they showed two different vehicles. At one point, we found ourselves being asked to compare two versions of what we were told was the same photograph of the serial number plate of a Takeuchi TB145 excavator. The original image had been captured by a digital camera. It was sent by Mr Brewster as an attachment to an email to Mr Petrie on 5 June 2017 [Production 39] in the wake of Mr Petrie’s discovery that the Appellant had purchased TB14514299 in Ireland in 2012. The two versions of that image lodged by the Respondents as Production 41 we take to be downloads, printed off on a colour printer. One of the two, we were told, had been adjusted for contrast and/or colour by the Appellant with the intended object of rendering it easier to determine whether the serial number on the plate was 14514299 or 14514289. To the extent that the photographs of the serial number plate might be interpreted as showing the number 14514289, Mr Petrie expressed, somewhat tentatively, the view that the penultimate “9” on the actual serial number plate of TB14514299 may have been physically altered so as more closely to resemble an “8” when photographed.

[50] We were asked also to study screenshots of TB14514299, printed off from the Euro Auctions website [Production 45] and to compare what we saw depicted thereon with photographs of what, according to the Appellant, was TB14514289, whilst it was being put to witnesses on behalf of the Respondents that areas of rust discernible on the bodywork of the subject(s) of the photographs were substantially coincidental in both location and configuration. We initially were doubtful that the evidence elicited by this means was of any real value, given the limitations of the photographic images in question, and that initial impression was further confirmed when Mr Petrie, an impressive witness, who gave his evidence in an even-handed and objective manner and who appears to us to have conducted the review in a similar spirit, under cross-examination by the Appellant, readily agreed with him that it was to be expected that such vehicles would exhibit similarities in their rust patterns, having the same stress points and areas of weakness in their manufacture, and being susceptible to damage in the same places.

[51] Attempting to resolve the conundrum of whether the Appellant ever owned TB14514289 through the medium of scrutiny and comparison of the contents of a small number of somewhat blurry photographs of serial number plates and areas of bodywork rust thus, unsurprisingly, proved to be an unsatisfactory and ultimately inconclusive exercise. Our concerns about the reliability of this evidence were heightened by the knowledge that one of the crucial images had been subjected to some level of digital manipulation or enhancement. No-one present in court possessed specialist knowledge of the many factors that may affect the quality of a photographic image, including brightness and evenness of illumination, contrast, resolution, geometry, colour fidelity and colour discrimination of an observed image. On the basis of the evidence we heard, and from our own personal examination of the photographs, we do not feel able to make any finding in fact as to whether the serial number on the plate shown in the photographs lodged as Production 41 was 14514289 or 14514299, still less whether a “9” numeral on a serial number plate had been physically altered to make it look more like an “8” in a subsequent photograph, and it is upon that basis that we consider that the photographic evidence falls to be treated as neutral on this issue.


[52] It is a striking aspect of the evidence we heard about the 14 June 2015 transaction involving the exchange of the twenty-one cattle for the excavator TB14514289 and attachments that gave rise to the off-movement notified by the Appellant to BCMS on 17 June 2015 that, with one possible exception, none of it derives from a source that confidently can be asserted to be other than the Appellant himself. By way of example, the only evidence that the elderly Irish “dodgy dealer”, Mr Callaghan, ever existed, is the word of the Appellant. If, as the Appellant implied, Mr Callaghan’s was a reasonably familiar face around auction marts in the South of Scotland and North of England in the years leading up to 2015, it seems odd that he should have left so little trace of his activities in those parts behind him. The Appellant did not seek to lead evidence from members of the local farming or auctioneering communities to speak to knowing, or at least having met and dealt with, Mr Callaghan, and he did not identify the person or persons who informed him that Mr Callaghan, in poor shape, may have returned to Ireland. The Appellant spoke to having transacted with Mr Callaghan on previous occasions, but he did not produce documentary vouching for any of those other transactions. His efforts to trace Mr Callaghan, once the importance of proving that the 14 June 2015 transaction actually took place was made clear to him, as he described them seemed to us to be curiously perfunctory: we do not believe that the Appellant made any real effort to trace Mr Callaghan, and we are strongly inclined to think that this was because the Appellant well knew that such an exercise would be either futile or counter-productive to his interests, in turn either because Mr Callaghan never existed, or, if he ever did exist, because the particular transaction to which he was said to have been a party did not take place.

[53] Even before we get on to the vexed issue of excavators and serial numbers, in the terms in which the Appellant described it, the 14 June 2015 transaction seems inherently improbable. Why would a dealer of the sort portrayed by the Appellant have agreed to pay him a “ridiculously large price” (albeit as represented by the value of the machinery being proffered in exchange) for a motley collection of cast cattle? In his written closing submission, the Appellant floated the idea that cattle that disappeared off the BCMS system might end up as part of the illegal meat trade, and that this might have been the fate of his twenty-one cattle, thereby explaining the absence of any notification of a corresponding on-movement in relation thereto to BCMS, but that is scarcely reconcilable with Mr Callaghan having paid him over the market rate for such animals. We would add at this point that, as a matter of law, we see no basis for the distinction the Appellant sought to draw between sales to dealers and sales to other purchasers, whereby the requirements of Article 8 of Commission Regulation (EC) No. 911/2004 were somehow diluted in relation to the former.

[54] The documentary evidence produced by the Appellant, in the form of invoices, VAT return and cash book entries, to corroborate the 14 June 2015 transaction either was, or could have been, generated by the Appellant himself. The veterinary evidence relating to the failed ET experiment does not identify the cattle which participated in it, and the schedule identifying nine of the twenty-one cattle as having been recipient cows in the ET experiment was assembled by the Appellant himself. Evidence confirming that a business known as J & C Plant Hire ever traded from the address at White Towers, Armthorpe Road, Doncaster DN2 5RT, as the invoice founded upon by the Appellant (absent VAT number, telephone number and email address) bore to represent, was conspicuous by its absence.

[55] The consequence of the Appellant’s apparent propensity for dealing in large sums of cash, which sums are not subsequently lodged in any bank account, is that we cannot “follow the money”; in other words, there is no means of verifying whether the Appellant did succeed in selling on TB14514299 for a profit to an unnamed farmer from Shropshire from the forecourt of the auction site at Dromore in June 2012, or TB14514289 to the similarly elusive Mr Mazadjec in January 2017. The only evidence before us that these two other transactions ever took place is the word of the Appellant himself. The agreed Takeuchi evidence renders it, in our view, highly improbable that TB14514289, which was sent from Japan to Australia in 2005, ever made the long journey around the World to end up in Scotland, and leaving aside the inconclusive photographic evidence, the only evidence that it did derives from the Appellant itself. Accordingly, our assessment of the Appellant’s own credibility becomes the issue central to the determination of this appeal.

[56] The sole chapter of evidence led on behalf of the Appellant that at least ostensibly derives from a source independent of the Appellant himself is that of Ms Ansell, and so we have subjected it to our most anxious scrutiny. We should say at the very outset that we have no reason to believe that Ms Ansell was not trying to tell the truth, as she understood it to be, and indeed Counsel for the Respondents at no point in the course of the proceedings suggested otherwise. Her cross-examination of Ms Ansell was conducted not on the basis that she was lying, but rather on the basis that she may have been muddled as to the date on which the incident, the circumstances of which she had related, took place.

[57] Before going on to explain what we ultimately made of her evidence, we must address the criticism advanced by the Appellant in his written closing submission of Counsel for the Respondents’ handling of the cross-examination of Ms Ansell. The Respondents’ legal team, he submitted, were well aware that she had anxiety issues, but despite their lawyer’s assurances, she was “cross examined aggressively”, as a result of which she had become “confused and disorientated” regarding the letter dated 20 April 2017 signed by her. The Appellant went on to assert that “As a result of this cross examination she was unable to return to work due to the return of her anxiety and depression issues.”

[58] Having been forewarned by the Appellant that she was extremely anxious about giving evidence, the court made special effort to accommodate Ms Ansell, arranging for her to attend at 2 pm on Friday 29 June 2018 to be taken as an interposed witness during Mr Petrie’s testimony so that she might be spared having to hang around the court building waiting to be called. Ms Ansell presented as a somewhat fragile, potentially vulnerable, witness, and had the manner in which she was being cross-examined overstepped the bounds of what was proper and reasonable, we would not have hesitated to intervene. In the event, we consider that Counsel for the Respondents conducted her cross-examination of Ms Ansell in a sensitive and responsible manner and we reject the Appellant’s characterisation of it as aggressive.

[59] Ms Ansell was not alone in being, to borrow the Appellant’s own phrase, “confused and disorientated” by the letter dated 20 April 2017 she signed but did not write: we were left feeling much the same way about it. The circumstances in which it came into being remain murky, with Ms Ansell not recalling to whom it was she spoke before it was prepared for her to sign, and the distinctly odd discrepancy it exhibits between the names of the addressee (Mr Brewster) and the person (Mr Baxter) to whom the salutation is directed. Mr Brewster did not feature on the Appellant’s list of witnesses, and so we did not have the benefit of his take on events in connection with this adminicle of evidence. Putting aside all our reservations about its source, however, the real question for us now is how far we can rely on its contents, to which Ms Ansell in the witness box adhered.

[60] Ms Ansell could not recall when she received the telephone call from the man who asked her about her recollections of the events of 14 June 2015, but it seems reasonable to assume, as she herself did when asked that question in the witness box, that it must have been some time shortly before 20 April 2017, being the date of the letter she subsequently received to sign. The question is begged how, when first asked in April 2017 about what, at the time it occurred, she must have regarded as a trivial incident, Ms Ansell could have recalled, some two months short of two years later, that it had occurred on 14 June 2015. Ms Ansell cogently described how, whilst she did sometimes find it hard to remember dates, it was easier to recall a date if she could associate it with a particular event. Thus, she was able to recall the date of the telephone call she had received from Mr Petrie because it happened on her birthday. Mr Petrie, in his review report, records her as mentioning to him during their 30 May 2017 telephone conversation a local Gala Day, which suggests that she may have had a similar memory prompt to assist her in remembering that it was on 14 June 2015 that she made a cup of tea for a waiting lorry driver at Slodahill Farm, but neither party followed up this reference with her at the hearing, and in the absence of further and better particulars (e.g., as to which local Gala Day she was referring, and confirmation of the date on which it took place in 2015), it does not seem to us that we would be justified in attaching weight to it.

[61] We can accept that such an event did indeed occur on some occasion in the past, but we cannot be satisfied, on the evidence we heard, that it happened on 14 June 2015. Further, and in any event, in contrast to her position on dates, Ms Ansell was quite clear in what she did, and did not, see on that occasion. She did not see an excavator being unloaded from the lorry. She did not see cattle being loaded onto the lorry. She did see that there were cattle in the lorry, but she could not say whether they were being delivered to, or uplifted from, Slodahill Farm. She did not see the Appellant when he finally arrived at Slodahill Farm and so did not observe his interaction with the driver. It follows that, even if we could be satisfied that the event Ms Ansell described did take place on 14 June 2015, the facts to which she was able to speak do not themselves corroborate the transaction by way of exchange of the twenty-one cattle for TB14514289 and attachments that the Appellant contends gave rise to the off-movements of cattle notified to BCMS on 17 June 2015.


[62] Were the twenty-one cattle uplifted from Slodahill Farm by or on behalf of Mr Callaghan in implement of a transaction under which the Appellant received in exchange TB14514289 and attachments, or not? Having heard all of the evidence of new, we are forced to conclude that, on the balance of probabilities, they were not. There are simply too many implausibilities and bizarre coincidences in the Appellant’s account of events for us to be able to accept it in the almost complete absence of corroboration from another independent source upon which we could rely. At the close of evidence, we were inclined to think that one of the most potent considerations militating against such a conclusion was the sheer unlikelihood of someone being capable of the degree of premeditation necessary to prepare the ground for such a convoluted tale, but as we pieced together the chronology of events, we came to realise that the circumstances, properly understood, pointed to this being not a story the Appellant had carefully worked out in advance, but rather one that he had to innovate on and adapt over time as an initial lie begat another and then another.

[63] Whilst we shall never know precisely what happened here, it seems likely to us, on the basis of the evidence we heard, that in the wake of the June 2015 inspection of his holding, the Appellant, in anticipation that it would be followed up in due course by a livestock inspection, sought to plug gaps in his cattle records. He notified a fictitious off-movement of the twenty-one for whatever reason unaccounted for cattle to BCMS, and inserted into his own holding register a corresponding entry to explain that off-movement, namely the sale of the cattle to a Mr Callaghan. We infer that the Appellant underestimated the lengths to which the Respondents were prepared to go to test the veracity of his story, and he may too have been unaware of the scope of the powers conferred on the Respondents by the legislation to investigate such matters: the Respondents did not accept at face value either the entry in the CATTLE RECORDS section of his holding register recording the sale to “Callaghan” or Invoice No. 201614, dated 14 June 2015, forcing him to devise an explanation for his inability to demonstrate receipt of the £13,000 that Invoice No. 201614, dated 14 June 2015 stated as being the sum payable by the purchaser of the cattle. The introduction into the story of a Takeuchi excavator occurred at the follow up cross-compliance meeting on 24 February 2016, at which the J & C Plant Hire Invoice No. 0581 dated 12/06/2015 made its first appearance. When, at the review stage, the net around the Appellant tightened further, upon the discovery by the Respondents that he had purchased a Takeuchi excavator (TB14514299) of the same model identified (albeit not by serial number) on the J & C Plant Hire Invoice No. 0581 dated 12/06/2015 in Ireland three years previously, the Appellant, in an attempt to shore up his story, had to resort to claiming that the Takeuchi excavator he had acquired from Mr Callaghan was not TB14514299 but TB14514289, an identical model with a serial number only one digit different, and that TB14514299 had been sold on by him from Ireland to Shropshire without ever coming home to him in between.

[64] We commented earlier that our assessment of the credibility of the Appellant has become the issue central to the determination of this appeal. Having had the opportunity to observe him over a number of days representing himself in court, we can say that the Appellant is a man of considerable, albeit sometimes misdirected, intelligence, combative in nature and possessed of a high degree of self-assurance. Whilst he initially seemed nervous at the procedural hearing in Edinburgh on 13 June 2018, it quickly became apparent to us at the hearing in Dumfries Sheriff Court that he was beginning to enjoy his time in court, and in particular the opportunity it afforded him to joust with Mr McMiken and Mr Petrie. Whilst he was never less than courteous in his interactions with the members of the court, we perceived in his attitude to the Respondents’ officials a propensity to chafe against the exercise of authority by those he considers to be his intellectual inferiors, and it was telling that in his written closing submission, he should have made the observation that “Not many students attend agricultural college in order to forge a career as a Government Inspector”, and to attribute what he would characterise as their excessive zeal in pursuing his perceived infractions of the applicable regulations to jealousy of someone who had succeeded in breaking into farming without the assistance of established family connections in the industry. It is only fair to record at this point that the Appellant’s belief that the “penalty was applied against a background whereby the Principle [sic] Agricultural Officer for the South of Scotland had an agenda to damage the Appellant’s business” is not without substance: Mr Donald, the Principal Agricultural Officer at the SGRPID Dumfries Area Office was on 3 April 2017 picked up on the Appellant’s answerphone, after leaving a message in connection with an application by his wife, Mrs Helen Thom for review of another decision of the Respondents, in conversation with a colleague expressing a desire to do just that [a transcript of that telephone call was lodged as Production 12]. We shall have more to say about that in the Note appended to our decision in Mrs Helen Thom v Scottish Ministers (RN SLC/65/17) issued of even date with these presents.

[65] The impression we formed of the Appellant, based on the evidence he gave, is that he is by nature a risk-taker, and in circumstances in which his initial lie was in danger of being exposed as such by new information discovered by SGRPID officials, we think it would be entirely in character for him to “double down” on it, rather than concede defeat at their hands. We ourselves were afforded the opportunity directly to observe the Appellant’s sometimes somewhat cavalier, bordering on reckless, attitude towards the truth in an exchange he had with Mr McMiken in the course of the latter’s cross-examination. In response to a question posed by the Appellant about the level of Mr Donald’s input into the Respondents’ original decision, Mr McMiken had, it seemed to us somewhat gratuitously and irrelevantly, shoehorned into his answer a reference to the Appellant having been subject to “other animal health cross-compliance penalties.” The Appellant immediately challenged Mr McMiken on what he had said, vehemently insisting that he had never had penalties imposed on him on animal health grounds. He then went even further, insisting to Mr McMiken that he had “absolutely no knowledge of what you’re talking about.”

[66] In re-examination of Mr McMiken, Counsel for the Respondents sought, and was granted, leave to lodge, essentially by way of rebuttal (whilst acknowledging that the Appellant had not been on oath when he had made those assertions), as Production 56, a copy of an appeal lodged by the Appellant with the Land Court against a decision of the Respondents, confirmed by them on review on 26 January 2017, to reduce his 2017 CAP support scheme payments by 3% as a penalty for negligent non-compliance with SMR 13 relating to the welfare of farm animals. That appeal (RN SLC/40/18) is currently pending before the Land Court. As we understood him, the Appellant’s explanation for having disputed what Mr McMiken had said was that the circumstances that gave rise to the imposition of that penalty were not such as, in his view, constituted an animal welfare issue, but that is to indulge in mere semantics, and cannot possibly justify his categorical assertion that he had absolutely no knowledge of what Mr McMiken was talking about. We have no doubt whatsoever that he well knew to what Mr McMiken was then alluding; and that was to what the Appellant himself referred to familiarly, after Counsel for the Respondents had lodged in process the copy of his appeal, as “the barbed wire case”. What strikes us as quite extraordinary is how the Appellant could possibly have believed that his disavowal of any knowledge of what Mr McMiken was talking about, a matter of public record relating to proceedings currently awaiting a hearing in this very court, would not be exposed as untrue.

[67] In continuing to maintain his increasingly beleaguered story, and in modifying it on the hoof as necessary to reconcile it with the new information SGRPID officials had discovered that tended to undermine it, we suspect that the Appellant was motivated almost as much by the opportunity these circumstances afforded him to be seen to outsmart or get one over SGRPID officials as by more practical monetary considerations. Counsel for the Respondents, in her closing oral submission, characterised the Appellant’s testimony as wholly incredible, unreliable and dishonest. That was not, she emphasised, something she would say lightly. For our own part, the story as spun by the Appellant at root simply does not ring true in any of its critical elements, and we are forced to conclude, on the basis of our assessment of the evidence he led in support of that story and of his own credibility, upon which so much of that evidence entirely depended, that it is not true.

[68] This appeal was contested by both sides on an all or nothing basis. Had we found for the Appellant, accepting that the twenty-one cattle did move off the holding on 14 June 2015 as reported, he indicated in his written closing submission that he would be content to accept the imposition on him by way of penalty of a 5% reduction in his 2015 CAP support scheme payments, based on a finding of non-intentional (i.e. negligent) non-compliance with SMR 7. It was at no time suggested to us that, were we to hold that the Appellant’s non-compliance was intentional, the 75% penalty originally imposed and confirmed on review should be departed from. No issue was taken by the Appellant with how the Respondents’ cattle penalty calculator and payment reduction matrix were applied in the circumstances of his case, but at the hearing, the members of the court queried whether, in applying multiple CII codes against each of the twenty-one cattle, the Respondents might be double counting, in that the multiple codes applied appear to proceed upon the basis of different, and mutually exclusive, hypotheses of fact. The Respondents having concluded, in their review report dated 5 June 2017, that “on balance, rather than having moved off the holding, … [the cattle] are more likely to have died on farm at some point since their birth/movement onto the holding”, CII codes NF and DD would, on that hypothesis, clearly be engaged, but how could FM and MV, which contemplate that the cattle did move off the holding, be engaged at the same time? By a similar token, if it be the view of the Respondents that, on balance, the cattle did not leave the holding, how is that conclusion consistent with the Appellant’s breach being held to have had off farm effect? The issue may not be live for decision in this appeal, because (at least so we were informed), even if what we, rightly or wrongly, have perceived may amount to double counting, were to be weeded out, the Appellant would still, on the operation of the Respondents’ cattle penalty calculator and payment reduction matrix, be liable to the same level of penalty. It does seem to us, however, that this is an issue that may need to be revisited, ideally with the assistance of full submissions, on a future occasion. Meantime, we expressly reserve our opinion thereon.

[69] It follows from all of the above that we are not persuaded that reason exists to amend or alter the decision of the Respondents to apply a 75% reduction to all 2015 CAP support scheme payments to which the Appellant otherwise would have been entitled, based on a finding of his intentional non-compliance with SMR 7 relating to identification and registration of bovine animals. We refuse the appeal, and confirm the decision of the Respondents.


[70] At the conclusion of her oral submission on 4 December 2018, Counsel for the Respondents moved at the bar that, should the Respondents succeed in resisting the appeal, expenses should be awarded in their favour in conformity with the ordinary rule of expenses following success. Any such award should include the expenses occasioned by the Appellant’s unsuccessful motion for discharge of the continued hearing. She also moved the court, under reference to rule 89(1) of the 2014 Rules, to sanction the employment of junior counsel under reference to the circumstances mentioned in paragraphs (a) (difficulty or complexity of the case) and (b) (particular importance or value to party represented) thereof. In our order dated 4 December 2018 appointing the Appellant to lodge his closing submission in support of his appeal, we invited him also to address the issue of expenses. In asking the Court to find in his favour and award him the expenses of the appeal, the Appellant was implicitly acknowledging the application of the ordinary rule in the circumstances of this case, and we in turn can see no reason to depart from it. We hold that the Respondents are entitled to an award of expenses of the appeal in their favour, which award will extend to include the expenses occasioned by the motion for discharge, just as it will the expenses of all the other incidental procedure, without the necessity of particularisation in the court’s final order. We are satisfied that it would be appropriate also to sanction the employment of junior counsel, under reference to the circumstances mentioned in paragraphs (a) and (b) of rule 89(1) of the 2014 Rules.