Attorney General (Corbett) v Halford

• Jurisdiction: Ireland
• Judge: KENNY J.:,Griffin J.
• Judgment Date: 05 April 1976
• Neutral Citation: 1975 WJSC-SC 406
• Docket Number: [S.C. No. 113 of 1974],(113–1974)
• Court: Supreme Court
• Date: 05 April 1976

1975 WJSC-SC 406

THE SUPREME COURT

HENCHY J.

GRIFFIN J.

KENNY J.

(113–1974)

Attorney General (CORBETT) v. HALFORD

ATTORNEY GENERAL (CORBETT)

v.

HALFORD

1 JUDGMENT OF HENCHY J. DELIVEREDthe 5th of APRIL 1976

2 The defendant was charged with a breach of a prohibition of movement served on him under a foot-and-mouth disease Order.

3 The Order allowed the prohibition to be made in respect of the defendant if a veterinary inspector had reason to believe either (a) that the defendant's movement to or from any place may be or may have been attended with the risk of spread of foot-and-mouth disease or (b) that the defendant has been exposed to the infection of the disease.

4 The question that has arisen is whether in a prosecution of the defendant for a breach of the prohibition it was sufficient for the prosecution to prove the prohibition, or whether it was also necessary for the inspector to give evidence that he had reason to believe either of those matters.

5 In my opinion the inspector's evidence to that effect was necessary. The prohibition recites the basis for making it, but it would require a provision in a statute or a statutory instrumentso permitting before the recital could be taken as proof of what it recites. Since there is no such provision, and since proof of what is recited is necessary for the validity of the prohibition, what is recited must be proved in evidence by the inspector.

6 I would answer the question in the case stated by saying that it was for the inspector to give evidence not alone that he believed but that he had reason to believe that the defendant had been in Great Britain within the period of 21 days before being served with the prohibition; that he might thereby be attended with the risk of the spread of foot-and-mouth disease; and that the inspector made the prohibition for the purpose of preventing the spread of the disease.

7 As the missing evidence was of a formal nature, affecting the technical proof of the making of a valid prohibition and not being a matter of substance going to the question of the defendant's guilt in breaching the prohibition, the Circuit Judge will have jurisdiction to receive it when this case now goes back to him; see Attorney General v.McTiernan 87 Ir.L.T.R. 160; The People (Attorney General) v.Griffin 1974 I.R. 416; and the cases referred to in Stone's Justices Manual (1971) I. 362.

8 JUDGMENT delivered on the 5th day of April 1976by Griffin J.

9 It is agreed that the only question requiring an answer in this case stated is whether it was necessary for the prosecution to prove that at the time he served a notice in writing on the defendant under Article 19(1) of the Foot-and-Mouth Disease Order 1956, prohibiting the movement of the defendant to or from any of the places specified in the Schedule to the notice and in particular "any building or other land on which animals are present or to which animals have access for the time being", the veterinary inspector had reason to believe that the movement of the defendant "may be or may have been attended with the risk of the spread of foot-and-mouth disease".

10 I am satisfied that the terms of Article 19(1) of the said order make it clear that the prohibition of movement which wasserved on the defendant, and which he is charged with breaching or contravening, could not have been validly made unless and until the veterinary inspector had reason to believe and that in fact he believed that the defendant's movement as specified would be attended with that risk. Therefore one of the facts on which the prosecution depended was the existence at the relevant time of reason for such belief on the part of the veterinary inspector.

11 Section 53 of the Diseases of Animals Act 1966specifies certain matters of which no proof shall be required, but the fact in question in this case is not included in such matters not requiring proof. If a statutory provision had allowed the written prohibition to be prima facie evidence of that fact, or if it were provided that the onus of disproving the existence of that fact passed to the defendant, the prosecution would not have to call the veterinary inspector to prove that fact. As there is no statutory provision permitting proof of that fact in that way, it would be necessary for the prosecution to call the veterinary inspector to prove that, at the relevant time, he had reason to believe and believed that the specified movement of the defendant would be attended with the risk of the spread of foot-and-mouth disease. With that fact proved in that way, then having regard to the facts proved or admitted at the hearing of the appeal, there would existall the evidential ingredients of a successful prosecution. I agree with Henchy J. that it is for the Circuit Judge...