Part II: Failures in the inspection regime at Burnside Farm, Heddon-on-the-Wall, effectively allowed illegal feeding activities to go unchecked and thereby led to the outbreak of FMD, which in turn led to the hasty imposition of the ban
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Background to the relevant events
Defra's comments in response to the complaint
90. The Anderson Inquiry concluded that all the available evidence suggested that on or around 7 February 2001 pigs at Burnside Farm, Northumberland had become infected with FMD. In other words this was probably the first or ‘index’ case of the disease and therefore the likely cause of the subsequent epidemic. In addition, the Inquiry confirmed that the most likely cause of the index case was that illegally imported meat infected with the FMD virus had been fed to pigs on this farm without being properly processed. A later enquiry by the Chief Veterinary Officer in 2002 reached the same conclusion. (It should be noted, however, that it is not possible to establish this for certain.)
91. Burnside Farm had, since October 1995, been run by two brothers who held the farm on an agricultural tenancy. They ran it solely as a swill feeding pig farm. Burnside Farm did not have its own swill processing plant; instead the brothers collected waste from catering outlets in the Newcastle area which they took for processing at the neighbouring farm, Heddon View, where the premises were licensed for swill processing. One of the three processing tanks at Heddon View had been allocated for the brothers’ personal use and they processed their own swill in this tank and provided their own oil to power the boiler. The brothers were licensed by Defra to consign swill from Heddon View, as well as to feed that swill to their pigs. Licences had to be renewed annually. (The brothers’ licence simply said that they were authorised to consign swill from the neighbouring farm and to ‘cause or permit processed catering waste to be fed to pigs or poultry on the said premises’.) The fact that the brothers were licensed meant they were subject to inspection by the SVS (paragraph 17). Throughout the six years that the brothers were at Burnside Farm the same vet, James Dring, based in Newcastle and employed by the SVS, carried out these inspections. Mr Dring inspected the farm twice annually (in January and July) until the outbreak of FMD in 2001.
92. There was no residential accommodation at Burnside Farm and no one lived there. The farm was very basic: it had five sheds in which pigs were housed and an old caravan that was used as an office. The brothers travelled to it from their home on a daily basis and this meant that all visits generally had to be announced in order that Mr Dring had access to the sheds. The feeding system was one in which processed swill was placed in a large holding tank and then pumped through a series of small pipes to the pigs’ troughs in the sheds. The brothers were experienced pig farmers (they had farmed pigs all their lives, as had their father) and they had one employee.
Key events
93. The key events are as follows. On 30 August 2000 Mr Dring made his normal unaccompanied biannual visit to Burnside Farm and found conditions unacceptable. According to Mr Dring’s account to my officers (the note of the interview is set out in full in Annex C), because of depression in the market the brothers were refusing to sell pigs for a low price, so pigs remained on the farm and grew very strong. In one of the huts they had broken through wooden partitions in their pens, smashing the interior to pieces. The result was pigs in very large pens, rather than 24 separate ones. (This meant that boars could meet and were likely to fight. Piglets born into this environment stood little chance of survival.) There were other problems in three other sheds. The farm slurry system was choked and overflowing with slurry backing up into pens, several of which were ankle deep in slurry, making them wetter and dirtier than they should have been. Two sows were dead in their pens.
94. By Mr Dring’s own account (Annex C) other business (relating to the then current swine fever outbreak) prevented him from dealing with the situation there and then. He said that he telephoned one of the brothers at 7.30pm that night (30 August 2000) and told him that he had been shocked and disgusted by what he had seen; he said that he was going to pretend the visit that morning had not happened and he would return to the farm early the following week when he expected to find an improved situation. (There is no record of this telephone call.)
95. On the Action Sheet dated 30 August 2000, Mr Dring wrote: ‘Visit made 30.8.00 – satisfactory. Pl. m/f for next visit due end Jan 01 in synch with re licensing visit of Heddon View’. A date stamp on the document shows that it was received at Defra’s Carlisle Office on 1 September 2000. Mr Dring said that he had made a second follow-up visit a few days after the above visit, when he found things had improved to an acceptable level. There is, however, no written record of this visit, and he did not report to his Divisional Veterinary Manager that there were problems at this farm.
96. On 22 December 2000 Mr Dring visited Burnside Farm with an LA inspector (paragraph 13) following a complaint alleging poor standards of husbandry at the farm. (This complaint had apparently been made by people living near the farm to the RSPCA, which had passed it to the LA. The LA inspector had initiated the visit and invited Mr Dring to accompany him.) Mr Dring said that he saw one ill pig alone in an un-bedded pen, when it should have been in a hospital pen. It had a swollen, painful elbow and he instructed that it be moved into bedded accommodation. By Mr Dring’s account, he had then had a discussion with the LA inspector about mounting a prosecution for causing unnecessary pain and suffering, but decided not to do so because, although a case could be made, he considered the threat, rather than the actuality, of prosecution to be the most effective means of improving husbandry practices on the farm. Instead, he gave one of the brothers an oral final warning and told him that next time evidence would be collected and a prosecution would be recommended. Mr Dring made no written record of the oral warning. In the Farm Inspection Welfare Report which he completed following the visit, Mr Dring described welfare conditions at Burnside Farm as ‘less than ideal and always have been. Pigs are kept in bare concrete pens with no additional bedding. Problems are exacerbated at this farm by seeming inability to keep the pens dry. All the same the majority of pigs are well grown and well fleshed’.
97. On 24 January 2001 Mr Dring made his normal annual re-licensing visit to Burnside Farm and saw two pigs in hospital accommodation. He examined them and felt them to be adequately provided for. As he considered everything else on the farm to be acceptable, the brothers’ licence to consign and feed swill was renewed.
98. On 19 February 2001 signs of a notifiable disease were discovered in pigs at an Essex abattoir and on the following day the disease was confirmed as FMD. On 22 February 2001, as part of the tracing process to find the source of the infected animals, Mr Dring, accompanied by an SVS technical officer, visited Burnside Farm where they found evidence of disease in a number of pigs, which was confirmed the next day as FMD. Arrangements were made for the pigs to be slaughtered. On 24 and 27 February 2001 (with additional footage shot subsequently) a Trading Standards Officer (TSO) made video recordings to show the conditions on the farm.
99. Some time after the outbreak of FMD, and in readiness to submit to the enquiry that was then under way by Dr Anderson – paragraph 26, Mr Dring wrote a lengthy and detailed memorandum concerning his involvement with Burnside Farm. This suggested, with the benefit of hindsight, that his inspections at Burnside Farm might not have been rigorous enough. In terms of animal welfare, he said that basic welfare standards were acceptable and the pigs were generally thriving and disease free. However, there were problems if a pig became a casualty. Despite encouragement to take a proactive approach in considering the welfare of such animals, the brothers’ attitude had throughout been one of indifference. He said that when he visited with the LA inspector in December 2000, a case for prosecution for causing unnecessary pain or distress to a pig with a swollen and painful elbow could have been made. He accepted that the decision not to make such a case had primarily been his and it was a decision that, in retrospect, he regretted. He also accepted that he had failed to follow normal working practices in the way in which he had dealt with the totally unacceptable conditions that he had found at Burnside Farm when he visited in August 2000, in that he had not documented what he had found, or made an official record of his second visit. As a result the Divisional Veterinary Manager had not been made aware of what had happened at Burnside Farm as he should have been.
100. Mr Dring also acknowledged in his memorandum that he might have missed certain indicators that should have led him to suspect that unprocessed food was being fed. These indicators were:
- He did not realise the true significance of containers on the hard standing at the front of Burnside Farm.
- He did not notice until 22 February 2001 the presence of a macerator on the feeding system holding tank. Its recent appearance was indicated by a differently shaped tank lid (first noted in March 2001).
Mr Dring’s memorandum also notes (with respect to investigations on the farm after the discovery of FMD) that:
- He did not notice the presence of any cutlery laid around the farm until after 22 February 2001, after FMD was suspected on the farm. When its presence was drawn to his attention it took a short while for him to realise its significance.
- He did not realise when the pipe feeding system at the farm had ceased to function and that such a system could be used to feed unprocessed catering waste.
101. That memorandum, together with the TSO’s video (which my officers have seen), which showed very poor conditions at the farm, formed the basis of ASU’s complaint that the inspection regime had been inadequate. Neither the memorandum, nor the video, were submitted to the Anderson Inquiry.
102. In May 2002 a district judge convicted one of the tenants of Burnside Farm of various offences, including feeding unprocessed catering waste to their pigs. The brother was not, however, convicted of bringing unprocessed catering waste on to his farm, because the judge accepted that the brother had been ‘authorised’ by an LA inspector to leave the waste on the hard standing (despite the fact that the LA inspector had no powers to provide such an authorisation).
ASU’s contentions
103. ASU say that it was very clear that Burnside Farm was far more dirty and dilapidated than other swill farms, and that pigs were kept in conditions well below those normally required of a swill farmer. They contend that Mr Dring should not have allowed such conditions to exist and that, by his own account, as an experienced vet, he should have taken positive action to ensure that the brothers either complied with the law or had their licence rescinded, effectively putting them out of business. They say that he was grossly negligent not to do so.
104. ASU point out that they are supported in their view of the conditions at Burnside Farm by the views of the other SVS vets who attended the farm in response to the identification of FMD in late February 2001, one of whom had publicly described the conditions there as the worst he had seen. ASU said that the TSO video clearly showed very dilapidated and dirty conditions at the farm, which in their view could not possibly have reached that state in the time since the last of Mr Dring’s visits.
105. ASU contend that, by Mr Dring’s own admission in his memorandum, he had failed to appreciate during his visits the significance, before FMD was identified on the farm, of the clear evidence on Burnside Farm of the feeding of unprocessed waste as swill. That included the presence of the waste containers holding unprocessed swill on the hard standing at the front of the farm (which ASU said was a clear breach of Article 21(2) of the Animal By-Products Order 1999 – see paragraph 16), and the alteration to the lid of the feeding system holding tank, which could only have been for the purpose of feeding unprocessed swill. But most significantly, he had failed to realise the significance of the large amounts of cutlery in the pens and around the farm. Nor had he noticed that the pipe feeding system had broken down.
106. In his memorandum Mr Dring had said: ‘Had this inspection been more rigorous … had the licence not been renewed, or renewed only subject to radical revision of [the brothers’] patently deficient feeding technique, then this awful 2001 epidemic would never have come about’. ASU said that it followed from that admission by Mr Dring that, had it not been for those failings, then swill feeding would never have had to be banned and the former swill feeders would not have lost their livelihood. They concluded that, in the light of that, Defra should compensate the former swill feeders for the effects of their maladministration.
Further evidence from ASU
107. When my officers met with ASU representatives, ASU made some further representations on this aspect of their complaint. They said that on 30 August 2000, when Mr Dring had visited Burnside Farm and found conditions unacceptable, he had agreed with the farmer that he would treat the inspection as if it had never happened and come back the following week. Two weeks later Mr Dring had apparently passed the farm as acceptable. No record had been made of a second visit, and two weeks seemed like too short a time to put the farm in order. ASU believed that the animal welfare issues should have been addressed at the first visit. Classical Swine Fever had broken out on 9 August 2000, so there should have been a heightened sense of bio security taken into account by Mr Dring. ASU also questioned whether Mr Dring had checked records of pig movements and waste processing as he should have.
108. ASU went on to say that when Mr Dring had visited the farm again with the LA inspector on 22 December 2000, and welfare problems had again been found, although Mr Dring and the LA inspector had discussed the possibility of mounting a prosecution, they had decided to issue a final warning instead. ASU said that Mr Dring’s account of the final warning given did not accord with usual practice. In their experience, final warnings had always been given in writing and were very strict. There should have been daily ‘to do’ lists and everything was supposed to be tightly monitored. ASU felt that Mr Dring had not mounted an appropriate investigation in response to the complaint about animal welfare, and that although Mr Dring might strictly speaking have followed his Defra remit (see paragraphs 8 to 10), he had a higher professional duty as a vet to ensure animal welfare. Furthermore, none of the problems at Burnside Farm had been fed back to Mr Dring’s line manager. That was clearly wrong.
109. On the following visit, ASU contended, it should have been apparent to Mr Dring that the containers holding unprocessed swill on the hard standing constituted a breach of Article 21(2) of the Animal By-Products Order 1999. Those containers would have been clearly visible to Mr Dring, and he must also have accepted that they were on farm premises, as he had instructed the farmers to put lids on them.
110. ASU went on to say that a second problem that had been identified was the alteration to the lid of the swill tank. The lid had been changed several times and, in his memorandum, Mr Dring had said that the hole in the lid which he had observed was subsequently found to be for a macerator to be fitted. However, ASU’s experience from other inspections was that an SVS inspector would ask how and why the plant worked. Plants varied and it was necessary for the vet to understand each one, and any alterations would be noted. The whole process should have been examined, from the transport of the swill to the feeding of the pigs. ASU pointed out that, in any event, untreated swill had a different smell to treated swill, and so should have been easily detectable. Had untreated waste not been allowed to be kept on the farm, the farmer would not have had the temptation to feed it to his pigs. ASU strongly felt that Mr Dring should have questioned the commercial logic of unloading untreated swill at the farm, and then reloading it to take it to the neighbouring farm for treatment.
111. ASU went on to say that, during the TSO visit to the farm in February 2001 when the video was made, 1,300 pieces of cutlery had been found. ASU said that these clearly should have been spotted earlier. ASU said that they accepted that Mr Dring would not have been able to see those at the bottom of the swill tank, but in their view he should, nevertheless, have spotted that the tank contained unprocessed swill from the smell and a temperature reading, and they remained convinced that there must have been some debris visible. It was their view that the difference between processed and unprocessed swill would have been readily apparent to anyone, qualified or unqualified, who looked at it. ASU insisted that the conditions at Burnside Farm had clearly been exceptionally bad; and that being the case, it showed significant failure on the part of the SVS inspection regime that no action had been taken on animal welfare grounds. ASU said that they did not accept that standards of animal welfare had been lower amongst swill feeders generally.
112. ASU insisted that it was self-evident that, had Mr Dring carried out his duties effectively, there would have been no need for a ban on swill feeding. Although they accepted that the EU had now banned swill feeding, ASU strongly believed that the UK would have been given a derogation for several years, like other countries (such as Germany). ASU concluded by pointing out that neither the TSO video, nor Mr Dring’s testimony, had gone to the Anderson Inquiry. My investigation was therefore the only type of enquiry to have all the evidence before it on this issue.
113. In subsequent comments on the facts, ASU said that they did not accept Mr Dring’s assertion (Annex C, paragraph 2) that the primary role of the SVS was to check on the welfare of the farm animals. In their view the function of the SVS had principally been to ensure that the terms of any licence to feed swill were being complied with. They said that they were also concerned that Mr Dring had been the only SVS vet who had visited the farm over a six-year period. For any inspection regime to be effective, the inspector and the inspected had to maintain an arms length relationship, and having the same inspector for that period was not conducive to that. The SVS should, in their view, have rotated the inspectors to avoid the sort of relationship that had clearly developed in this case.
114. ASU went on to say that one of the brothers from Burnside Farm denied that Mr Dring had ever made the telephone call he claimed to have made to the farm on the evening of 30 August 2000, and there were records that proved that. He also denied that any follow-up visit had been made. Given the lack of records to support Mr Dring’s account, ASU believed the brothers’ account to be more likely to be accurate. ASU said that they remained firmly of the view that Mr Dring both could, and should, have revoked the brothers’ licence to feed swill on the grounds that neither the licence nor the Animal By-Products Order 1999 were being complied with.
Defra’s comments in response to the complaint
115. The Permanent Secretary was asked for his comments on Mr Dring’s failure to take action in response to unprocessed catering waste apparently being stored on the hard standing at Burnside Farm. He said that, generally speaking, in the event of discovering unprocessed catering waste at the front of premises which were only approved to feed processed swill, a Defra vet should have informed the occupier immediately of their findings and insisted that the unprocessed catering waste be removed without delay. They would also have had the options of following this with a written warning and/or carrying out a repeat visit to check compliance. Article 27 of the Animal By-Products Order 1999 gave inspectors the power to serve a notice requiring the disposal of the catering waste as specified in the notice if there was non-compliance with the Order, or if it was thought necessary for animal health purposes. Suspension of the approval was a further option, effectively preventing the continuation of the operation. The local authority (as the enforcement body) could also have initiated a prosecution. The seriousness and frequency of the offence and the willingness of the operator to rectify the matter would have been considerations which the vet would have had to take into account in deciding which option(s) to pursue.
116. The Permanent Secretary went on to say that some unprocessed catering waste had been held temporarily in barrels on a hard standing in front of Burnside Farm, before being moved for processing at Heddon View. Judgment by District Judge James Prowse on 30 May 2002 in the case of Northumberland County Council v Robert Waugh (which my officers have seen) had concluded that, whether or not it was taken direct to Heddon View or unloaded at Burnside Farm, depended on which collector had collected it. One had fallen out with the processor at Heddon View. He therefore unloaded the material at Burnside Farm and another collector would take it to Heddon View shortly afterwards.
117. The Permanent Secretary said that Mr Dring had not considered that unloading the material on to a hard standing at the front of the farm was in breach of the Order. The hard standing adjoined the main road and was well away from the pigs, or any activity involving the pigs. He had also understood that it was being taken to Heddon View for processing without undue delay, as required by the Order. The judgment from the trial had shed some doubt on whether the hard standing was in fact outwith the premises, as the judge had accepted the farmer’s claim that the local authority had given tacit agreement to his holding the unprocessed material on his hard standing. The judge had, therefore, found that the farmer had a lawful excuse for this practice.
118. During Mr Dring’s visits to Burnside Farm he had twice warned the farmer about barrels of unprocessed catering waste being left on his hard standing. However, the issue had been that the catering waste had been left uncovered, not that it had been there at all.
119. Asked whether he considered Mr Dring’s response to finding unprocessed swill at Burnside Farm, apparently on several occasions, to have been reasonable in the circumstances, the Permanent Secretary said that it was not appropriate for headquarters staff to try to anticipate every eventuality and to provide instructions for each one. Rather, general guidelines were provided within which veterinary field staff had to take account of the circumstances in each individual case and exercise their judgment accordingly, seeking advice from others as appropriate. Mr Dring acted in accordance with the instructions and his assessment of the situation at the time.
120. As part of the investigation, my officers interviewed Mr Dring about the role that he had played in these events and the memorandum that he had written. A summary of the key points covered in that interview is at Annex C.
The LA inspector’s comments
121. My staff also interviewed the LA inspector who had accompanied Mr Dring on the visit to Burnside Farm on 22 December 2000 (paragraph 96). He explained that the visit had been in response to a complaint that had come via the RSPCA. The complaint was that there were dead pigs lying around Burnside Farm, and that both the pigs and the farm were in a generally poor condition. The visit was not pre arranged, and the brothers who owned the farm were not expecting it.
122. The LA inspector explained that, with this type of visit, the LA was the prosecuting authority, and he, as an LA inspector, was responsible for enforcing the law. Any action that he took would probably be for causing unnecessary suffering to an animal under the Protection of Animals Act 1911 (paragraphs 9 and 13). He would, however, be totally reliant on the SVS vet for expert evidence to prove that an animal had suffered unnecessarily. If the vet was not prepared to give a statement saying that, he could not commence a prosecution. In addition, although an LA inspector had certain powers of entry, he was not empowered to enter premises to deal with animal welfare issues. Only a Defra vet had this power. He therefore needed Mr Dring with him so that they could legally enter the premises.
123. The LA inspector said that on 22 December 2000 he had met Mr Dring at the bottom of the road leading to Burnside Farm, and they had then gone to the farm together. To the best of his recollection they had spent just over an hour at the farm and visited each of the pig sheds. The LA inspector said that he had had no previous experience of pig farms and could not say how Burnside compared with others. This had also been the first time he had been to Burnside Farm. However, his general impression had been that the farm was in poor condition. He had felt that it should be cleaner, and that the pigs should have had more bedding. Nevertheless, all the pigs had been in good bodily condition. Two were lame, but even those had been in otherwise good condition. Mr Dring had told the farmer to move those two pigs into pens where they could be separate from the herd and recover.
124. On the basis of these two pigs Mr Dring had not been prepared to give a statement to support a prosecution for causing unnecessary suffering. The LA inspector said he had not been entirely happy about that, and would have preferred for a prosecution to be instigated, but he had had to accept the vet’s view. The LA inspector said that it was not that he strongly disagreed with Mr Dring, he had just felt that the animals had suffered and that that merited prosecution, whereas Mr Dring had preferred to obtain compliance through advice. The LA inspector had been concerned that they would be leaving the ill pigs with no guarantee that a vet would be called to them, and that the authorities would have no further control over what happened to them. Mr Dring had, however, indicated to the brothers that the conditions needed to improve. The LA inspector said that, although he would have preferred Mr Dring to have given a statement, he had had to accept that it was unlikely that a prosecution would have achieved very much. The brothers would not have been banned from keeping pigs, just because two pigs out of an otherwise healthy herd had suffered unnecessarily.
125. The LA inspector confirmed that conditions had to be bad to justify a prosecution for causing unnecessary suffering. Basically you were looking for a problem reflected in the animals so if, as at Burnside Farm, the animals were healthy and thriving, it was extremely difficult to say that they were suffering unnecessarily. Defra vets had their own animal welfare codes (paragraph 9) which said that animals should have a dry lying area and bedding, but these were not legally enforceable, and breach of them was not an offence in itself.
126. The LA inspector said that, in his view, pigs would be alright at Burnside until they became ill, when it seemed unlikely that they would be looked after properly or treated by a vet. In his view, Mr Dring’s relationship with the brothers had been professional, and certainly not ‘pally’.
127. On 22 December 2000 it had not been possible to inspect any documentation because the brothers claimed that the relevant documentation, in terms of pig movement records and records of the administration of veterinary medicines, was at their home.
128. The LA inspector said that he had returned to Burnside Farm with Mr Dring on 24 January 2001 when the movement records had been inspected, and found to be in order. The LA inspector said that prior to changes brought about by FMD, and computerisation, it had been extremely difficult to check whether entries were correct or that all entries had been made. The only way to check would have been to visit the claimed destination for any pigs that had been moved, and that could be many miles away. The only identification on a moved pig was a temporary identification mark sprayed on to the pig’s hide, so it was hard to trace a particular pig. Those problems meant that, prior to FMD, records had not been as comprehensive or as useful as they were now. At that time it had only really been possible to check the format of records. It had been almost impossible to verify the content.
129. The LA inspector said that his second visit to Burnside Farm was Mr Dring’s normal annual licence renewal visit, both to Burnside and to the neighbouring farm, where the brothers processed their swill feed. He had not been sure that the two pigs that had been ill in December 2000 had still been at the farm at the time of this second visit. Otherwise, conditions on the farm had seemed to him to be more or less the same. During the visit he had worked separately from Mr Dring who, he presumed, had been checking the welfare of the animals and the feeding arrangements, but he had not personally seen how he went about this.
130. The LA inspector said that on both occasions when he had visited Burnside Farm a large fire had been smouldering. It could be seen from the road, and smoke from it had often blown across the major dual carriageway nearby. He knew there had been complaints from neighbours about the fire. The LA inspector went on to explain that, at that time, farmers had been allowed to dispose of dead pigs by burying or burning. Burnside Farm had hardly had any land for burying, so the brothers could only dispose of pigs by burning, and as far as he knew that had been the main reason for the fire.
131. The LA inspector could not remember whether any containers were on the hard standing at the front of the farm. He said that he would not have specifically looked for that, because enforcement of the law relating to processing and feeding was not his role. The LA inspector said that, in his view, LA staff tended to be minded towards enforcement and prosecution, and were aware of the legal requirements for ensuring that evidence would be admissible in court, whereas Defra staff appeared generally to favour a much softer approach of encouragement, and maintaining a good relationship with the farming community. The LA inspector said that he believed Mr Dring to be conscientious; he would not leave problems unaddressed.
132. The LA inspector concluded that, although the enforcement of the regulations relating to swill processing and feeding had not been his responsibility, it was his opinion that this law had been unenforceable, and easily abused by a pig farmer who was unscrupulous. Mr Dring only visited Burnside Farm twice a year. To be certain that unprocessed swill was not being fed, someone would have needed to be at a farm for 24 hours of each day.
Findings
133. I consider first ASU’s contention that the general conditions at Burnside Farm, and the animal welfare problems identified by Mr Dring during his visits, particularly in August and December 2000, were so severe that he was grossly negligent not to either force the brothers to comply with the law, or have their licence rescinded (paragraphs 99 and 100). ASU say that the evidence of the TSO video (paragraph 98) and the comments of the other SVS vet are sufficient strongly to support such a finding. I do not, however, agree with them on that point. The video was taken several days after the brothers had effectively stopped doing anything on the farm and I note the comments made by Mr Dring in his statement (Annex C, paragraph 14), which seem to me to provide a reasonable explanation for a very quick and significant deterioration in the conditions on the farm. The other SVS vets also only saw the conditions on the farm after the FMD outbreak and for the same reasons, I do not think it is possible to assume that what they saw at that time was necessarily indicative of what Mr Dring had seen over the previous year.
134. It is not, of course, possible to say now exactly what the conditions at Burnside Farm were like throughout the period when Mr Dring was inspecting it. It is clear that Mr Dring considered them to be at the absolute minimum of what was acceptable in animal welfare terms. But it is also clear to me, given that his inspection visits were usually pre-notified, that if the farm conditions were normally very poor, the brothers could easily have cleaned them up before the visit. I also take the LA inspector’s point that in order to get a successful prosecution, the vet would have to identify a problem reflected in the animals and that where, despite the conditions, the animals were healthy and thriving, it was extremely difficult to say that they were suffering unnecessarily. This view is supported by the fact that when in August and December 2000 the vet identified an animal welfare problem he regarded it as unusual and took action to deal with it. I note also the LA inspector’s comment that even a successful prosecution in relation to just one or two animals would not have been sufficient grounds for them to ban the brothers from keeping pigs.
135. It is also impossible now to determine whether the visit Mr Dring made on 30 August 2000 was his first or second visit at that time. The fact that Mr Dring said that he would pretend that the first visit had not taken place and then submitted the action sheet showing that the 30 August visit was satisfactory strongly suggests to me that that was the date on which he made his second visit. Indeed, that would explain why there were apparently no records of his alleged call to the brothers on that evening (as ASU contend). But is Mr Dring being honest in saying he visited twice, or did he simply find an unacceptable situation on the farm, ring one of the brothers about this, and then put the form in showing that the visit was satisfactory? I cannot be certain whether Mr Dring made two visits, but in view of his openness in so many other matters, and in view of the LA inspector’s objective comments on Mr Dring’s general professionalism and that he did not believe that the vet would leave such matters unaddressed (paragraphs 126 and 131), I am prepared to accept that he did make two visits. I also believe that Mr Dring was entitled to use his discretion in deciding what action should be taken in dealing with the conditions he found on the farm. However, I do find that he failed significantly not just in failing to report what he had found on the first visit (which is hard to understand if conditions were as bad as he has said when he visited the farm, and in the context of an outbreak of swine fever, which would have pointed to the need for even greater punctiliousness in reporting unsatisfactory conditions), but in knowingly submitting what was effectively a false report. That could only mislead his managers and anyone else who might subsequently have dealings with the brothers. It is difficult to know why a long-serving and apparently dedicated vet would decide to make a false report. I am prepared to accept his explanation that it was because he was working under severe pressure due to staff depletion caused by the swine fever epidemic, but even so, his behaviour fell far below an acceptable standard, and I find it surprising that Defra appear to have accepted it with equanimity. It also seems to me to have been unprofessional for him to have indicated to one of the brothers that he would ‘pretend a visit had not taken place’, although again, I accept that in doing this he was trying to use informal means to achieve compliance.
136. I turn now to the December 2000 visit with the LA inspector, when one or two pigs (the evidence of the LA inspector and Mr Dring differs on this point but I do not see that as of particular significance) were found to be suffering from a sore elbow. Mr Dring could have decided to take more formal action, and I note his regret with hindsight that he did not do so (paragraph 99), but he has explained why he took that decision. I accept that there was a difference of opinion between Mr Dring and the LA inspector on the animal welfare issue, but it seems to me that the LA inspector’s evidence suggests that that was more about the difference in approach taken by the two respective roles, as described by the LA inspector (paragraph 131) rather than any disagreement that there was a problem identified that needed to be tackled. I note also that the LA inspector, whilst not agreeing with Mr Dring’s approach in some respects, commented that the approach that he had favoured (namely a recommendation to prosecute) was unlikely to have affected the course of events significantly (paragraph 124).
137. In considering the professional judgment to be exercised by an SVS vet, it seems to me that Defra are entitled to allow such a person considerable discretion as to how they deal with issues they come across. There must, however, be some limits to that discretion. If not, a situation will emerge in which people are being treated differently by different vets in respect of the same or similar matters, and inconsistent regulatory standards will be being applied. That is why, I assume, that although Defra have provided only limited guidance to SVS field staff about what action they should take in relation to the failings they identify, there is a clear requirement in the instructions given to staff that all serious failings found should be clearly documented and reported, so that broadly consistent decisions can be taken on a wider level on what enforcement action to recommend (paragraph 10). In the light of that, I find it a matter for concern that the final warning Mr Dring gave the brothers in December 2000 was once again not given in writing and reported for future action or reference. Although I note that Mr Dring implied that it was for the LA to issue the written warning, as the LA inspector had been in the lead on the visit, I do not think that that was sufficient, particularly in the light of the August 2000 visit, when welfare failings had been identified. It seems to me that there remained an obligation on him either to write himself, and report his own findings to the Division, or to check whether the LA inspector would issue the written warning. (This confusion between Mr Dring and the LA inspector as to who was responsible for issuing the written warning in these circumstances seems to me to highlight the confusion which can arise from the fact that the LA and SVS have overlapping responsibilities, both in the relevant legislation and in practice, in relating to animal welfare issues.) Mr Dring’s failure to complete appropriate reports, both in August and December 2000, and to forward them to the Divisional Manager appeared to me to demonstrate a failure on his part to understand the importance of maintaining appropriate records and following proper procedures. In summary, therefore, I have not seen any evidence to suggest that Mr Dring’s professional judgment, in terms of the seriousness of the animal welfare issues he identified and in the exercise of his discretion as to how best to handle those (in the sense of prosecution or a warning), was fundamentally flawed. I do find, however, that his failure to follow proper procedures, and to make and submit appropriate records, meant that he did not carry out his duties in this regard to an acceptable standard, and that given the possible consequences of such omissions, those failings were, therefore, sufficiently serious as to constitute maladministration.
138. That brings me, however, to Mr Dring’s other responsibilities when inspecting the farm, namely to satisfy himself that the brothers were keeping to the conditions of their licence to consign and feed swill. I should say at the outset that, whilst I recognise the practical convenience of requiring SVS vets to carry out these duties, they are, of course, outside a vet’s normal professional ambit. Accordingly, given the clear and substantial risks involved if they did not carry out these responsibilities to an acceptable standard, I find it a matter of concern that SVS vets appear to have been given no clear guidance or technical support by Defra as to what they should be doing when inspecting for these purposes.
139. Further, it is clear that Mr Dring (and his managers did not correct him) saw his animal disease prevention and welfare duties as paramount. In my view, however, given the risks involved if licence conditions were not fully adhered to, both sets of responsibilities should have been regarded as significant and important at each inspection. Perhaps as a result of that attitude, Mr Dring appears to have adopted exactly the same approach to compliance in respect of the licence as he did to his other duties, namely to encourage compliance, warn when there were possible infringements and then make follow-up visits to monitor progress, rather than considering suspension or removal of a licence, or recommending prosecution to his Divisional Manager. I acknowledge, of course, that the question of how best to obtain compliance is not at all an easy or straightforward one, and I take the SVS’s point that there is plenty of case law to support the argument that you do not take away a person’s livelihood (and in the case of farmers possibly their home as well) lightly. In addition, I recognise that what happened on this farm was highly unusual, so whilst the impact of the risk was high, the likelihood was quite properly considered to be low. Nevertheless, I think that the existence of a clear checklist for SVS vets to follow when inspecting for licence purposes (such as to visit at feeding time in order to see the feeding system in action), and what sort of indicators to look out for, might well have made their responsibilities in these matters clearer and even helped to encourage compliance. I therefore invited the current Permanent Secretary’s comments on that point. She replied that since the events described in this report the new agency, Animal Health, had been reviewing the instructions and training provided to its field officers. The field instructions (VIPER – Veterinary Instructions, Procedures and Emergency Routines) had been substantially updated, with improved guidance and visit reports which were designed to provide a checklist style approach in line with my above recommendation. This guidance was reinforced by a system of Lead Veterinary Officers who provided a point of contact, support and expert advice for colleagues within the field, and had been recently incorporated into a Network of Expertise, to allow that advice to be more widely shared and maintained in a consistent manner. In addition, Animal Health had been developing a Veterinary and Technical Development Pathway, which outlined all areas of technical knowledge and skills which staff in such roles needed to acquire in order to perform their duties effectively, along with a variety of methods for delivering that training. Looking to the future, an Operations Manual was currently under development to replace VIPER, which would allow timely updates to be easily made available to staff, and to ensure that all staff had access to accurate, and consistent, instructions. I welcome those developments.
140. I turn now to the four issues that Mr Dring himself identified in his memorandum as indicators of the feeding of unprocessed waste which he felt, at the time of writing the memorandum and with hindsight, he should have noticed. The first of these were the containers of waste food on the hard standing at the front of Burnside Farm. It is a matter of legal interpretation, and not a question for me, as to whether the containers were actually illegally on Burnside Farm, or whether they were being taken ‘without undue delay’ to Heddon View for processing. I do not doubt that Mr Dring honestly believed the latter to be the case, and that he thought that they were in transit to the processing premises. It seems to me, however, that irrespective of that question, Mr Dring should have taken more interest in them than he apparently did. I note that he accepts that they were sometimes uncovered, and so presented an infection risk, and that in response to that, he had asked the brothers to make sure that they were covered. As I see it, however, knowing that they held unprocessed swill, he should have established why, and for how long, they had been there, and taken advice on whether or not that met the legal requirements. I find his failure to do so a matter of concern, and perhaps once again indicative of his general view, and that of Defra, that his priority in inspection terms was animal welfare, and not the oversight of the licence conditions.
141. The other issues Mr Dring identified related to his failure to notice the presence of a macerator on the feeding tank, the cutlery in the pigs’ troughs and around the farm, and that the pipe feeding system was blocked. I have seen no evidence to suggest that the macerator was actually fitted to the tank when Mr Dring visited in January, but note in any event that that in itself was not an indication of feeding unprocessed swill. It could have been there for other legitimate reasons (as the brother argued in court). But it is now impossible to say whether it was there, and Mr Dring did not notice it, or whether he should have been able to identify that the lid to the holding tank had been adapted for some purpose, which ought to have raised his suspicions. As for the cutlery, I note that Mr Dring is insistent that in his statement he was not saying that he had seen or must have seen cutlery in the pens or around the farm before the February 2001 visit following the FMD outbreak, but that he had failed to notice it. He was referring solely to his failure immediately to notice it or register its significance during the visit in February 2001. Again, I note that the LA inspector, who went around the farm himself in December 2000 and January 2001 with Mr Dring, did not say that he saw any cutlery. That would suggest to me that it was not clearly visible at that time such that Mr Dring should have noticed it. Finally, I note that it is not known exactly when the pipe feeding system became unserviceable, and therefore whether that was something that Mr Dring might perhaps have picked up on. Accordingly, overall, I have not found evidence that would demonstrate that Mr Dring failed to pick up on clearly identifiable indicators that the brothers were not meeting their licence conditions.
Summary of findings
142. In summary, I have not found that Mr Dring clearly failed to take appropriate enforcement action in response to the general conditions and animal welfare problems he identified at Burnside Farm. Nor have I found that he clearly failed to identify indicators that the brothers were not meeting the conditions of their licence to consign and feed swill. I have found two matters of concern, namely:
- that SVS vets were not given clearer guidance about what checks to make and indicators to look for when inspecting for licensing purposes; and
- that, perhaps because of the absence of such guidance, Mr Dring did not question the brothers more robustly about the presence of the containers on the hard standing.
Nevertheless, I did not see those concerns as clearly indicative of maladministration.
143. I have, however, found that Mr Dring’s failure to follow proper procedures, and to make and submit appropriate records in relation to animal welfare matters, was sufficiently serious as to constitute maladministration.
