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When a summons arrives...

by 5m Editor
2 August 2004, at 12:00am

UK - Julie Robinson, a solicitor at Roythorne & Co's Newmarket Office, gives some pointers on how to deal with Trading Standard prosecutions

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When a summons arrives, it is not normally the first you have heard of it. There will usually have been an interview and a caution; a State vet or Trading Standards Officer may well have pulled you up on something at the abattoir or on farm. But it may still come as an unpleasant surprise. Months may have passed since the initial incident and you may have thought nothing would come of it.

Deciding how to plead

This is a key decision. The first thing to do is look at the list of offences and the supporting documentation that comes with it.

Strict liability offences

Many offences are strict liability offences e.g. not having ear tags or slapmarks, not completing or producing transport certificates. If an offence is strict liability, then however good your reason for not complying, you do not have a defence. Instead, you should consider admitting the breach as soon as it becomes clear that the prosecution have a case. Credit is given for an early guilty plea - this usually means a reduction in the fine of around one third.

At the same time, you should check the details of the offences and the accompanying paperwork carefully. If there are significant errors e.g. in relation to dates or events, then it may be worth considering a not guilty plea. It is also worth contacting whoever in the County Council is prosecuting the case to point out errors and ask for some or all offences to be dropped. Sometimes the prosecutor is willing to withdraw some of the offences in return for a guilty plea on others.

Animal welfare offences

Animal welfare offences are not strict liability - the prosecution has to show that you failed to meet a required standard e.g. that a pig was transported when it was not fit to travel.

Farmers experience particular difficulty when animal welfare comes into play. This is down to two things: first, whether a particular animal is fit to transport or likely to suffer unnecessarily is often a matter of judgement; one vet may say yes and another no. Secondly, at the mention of animal welfare, reactions tend to be more emotional than for 'paperwork' offences. But if the veterinary evidence and photographs back up the prosecution case, it can be an uphill struggle to dislodge that evidence in front of the magistrates.

At the same time, it must be remembered that the prosecution has to prove beyond reasonable doubt that the offence took place. Despite this, some farmers, when faced with the uphill struggle and the thought of giving evidence at trial, bite the bullet and plead guilty, whether or not they actually believe there has been a clear-cut welfare offence.

Veterinary evidence is crucial if you are going to successfully defend against a welfare prosecution. Statements from independent witnesses will also help. One problem frequently encountered is lack of physical evidence - the animal's carcase will often have been disposed of. This means that the State vet's statement as to the condition of the animal must be put in doubt without the help of an independent expert's evidence - not always an easy task.

Mitigation

If you decide to plead guilty to strict liability or other offences, the next step is to present arguments in mitigation so that the magistrates will be as lenient as possible when it comes to sentencing.

Examples of mitigating factors are that you made a prompt admission and guilty plea, that you have taken steps to remedy any gaps in your systems that led to the breach, that you have no previous convictions for similar offences, that the breach was an isolated incident and not a deliberate flouting of the rules. It is worth preparing a structured set of notes to speak from at the hearing.

You should also deal with your financial circumstances and ability to pay a fine and costs. If you do not, then the magistrates will assume that you can cope with whatever level of fine they impose.

The prosecution will seek to recover at least some of its costs from you. You should expect to be ordered to pay a significant proportion of these on top of the fine, unless you can show that your financial circumstances are such that it would cause significant hardship.

Legal Advice

One decision that needs to be made is whether to instruct a solicitor to help with the case. One of the most useful roles a solicitor plays is advising at the outset on the strength of your case, what plea is appropriate and what kind of sentence is likely. It may even be worth seeking help before the interview; a good interview following an incident can mean a summons not being issued at all.

Certainly, if you decide on a not guilty plea, you should seriously consider instructing a solicitor to prepare the defence and represent you on the day. Although magistrates' courts are intended to be user-friendly, conducting a trial and being cross-examined by an experienced prosecutor can be an intimidating experience.

If you decide to plead guilty to the offences, then you may feel able to turn up on the day and give your own arguments in mitigation. A half-way house between paying the full costs of the solicitor and none at all is to ask a solicitor to draft mitigation notes for you to speak from on the day. This could save a significant amount in fees (attendance at the magistrate court usually involves several hours of travel and waiting about).

Conclusion

Once a summons has been issued, it has to be dealt with. It is not going to go away. However, just because offences are listed does not mean they cannot be withdrawn or negotiated on - this is always worth bearing in mind. Equally, just because the maximum fine for many offences is 35,000 does not mean that fines will be at that end of the scale. Pleas in mitigation can bring fines down to a manageable level and, in some cases, where there has been a single isolated breach of a regulation, it is possible to come away from the court with a conditional discharge and no fine.

Source: National Pig Association - 2nd August 2004

5m Editor