4. Significance of the Science in the Judgements at Winslade and the Upton case
In view of the published research papers of A.I.Donaldson,S.Alexandersen,J.H.Sorensen,T.Mikkelse about  virus transmission,  appearing publically in Vet Record for May 12 - but studied before this date by MAFF  who supported the research,  Mr Winslade was quite right to try to save his cattle and the Minister was acting most unreasonably
Even before the public publication of these papers, the government, ignoring international experts in the behaviour of the virus  (e.g. calling Kitching a "Neanderthal")  behaved unreasonably in setting in motion the contiguous and 3 km culling.  They have clung to para 3 (1) (b) of Schedule 3 of the Animal Health Act 1981 of course but knew full well that on its own it could not be said to give legal justification for the scale of the killing.
Nor can the judgement  of Winslade possibly be taken as giving legal carte blanche for the contiguous cull - as Whitty would have everyone believe.
The Ministry seems to have been quite desperate to employ any means at its disposal to avoid testing the legality of the Animal Health Act.  I think they went to court over Winslade because they knew that few legal minds understood Donaldson's research into transmission and that Owlaborough ( the IP that doomed Winslade)  did actually have postive blood test results. 
They KNEW  that only a positive blood test on an IP gave them any chance whatsoever. The blanket culling of animals without benefit of blood testing to show that they were indeed in danger was illegal.  This is why legislation was to be rushed through to give retrospective legality by means of the Anbimal Health Bill.
(Elsewhere, where they knew the results were negative,  they avoided going to court and used underhand means when they tried unsucessfully to force John Payne at Blackfordsby Farm to give up his animals {can't be cited of course but I happen to know hidden that soldiers threatened Mt Payne with drawn handguns saying "these are loaded", there was hidden surveillance, broken promises and - unbelievably - the disabling by means of a huge power surge the car of Mr Tony York who was supporting him}  .  We are told by a DEFRA  mole that they knew on the 2nd day of Mr Payne's holding out that the results that had put him on a form D were negative, and yet they still tried to get him to capitulate.  Any successful defiance presumably made exposure of the illegality of the culling more likely. )
Mr Winslade knew that
  • most of his cattle had been in the cattle shed
  • even those that weren't had been free of disease for nine days since the disease at Owlaborough had been detected.
  • there was no proof that the sheep grazing in the adjacent field to his own sheep were the ones that were infected
  • there were no cattle from Owlaborough anywhere near his own cattle
What Mr Winslade's counsel and the judge did not know was that Donaldson's life's work, supported by the Ministry itself,  of showing the limits of airborne spread of the virus had been made available to MAFF and studied before May 12th - yet the Ministry decided to kill Winslade's animals on May 14th.  Fred Landeg (or whoever the principal witness was) did not disclose the research - which clearly said:

"The action taken should be guided by the species at risk, the local circumstances and whether clinical and/or serological surveillance is appropriate."

"For cattle, intensified clinical surveillance would be an appropriate alternative to immediate culling,  since FMD in that species is easily recognised and any cases should be quickly identified and eliminated before there was a risk of infectious plumes of virus being generated."
The distances over which plumes of virus originating from cattle or sheep present a risk would be much less. The simulations predict that it would require 100 cattle or sheep to be infected at source for an infectious dose to travel a distance of 0.2 km and be sufficient to infect cattle. In the FMD situation in the UK, the level of clinical surveillance is such that it is unlikely that the number of infected cases in a cattle herd would be as high as 100.Furthermore,the emerging serological evidence suggests that infection has progressed slowly through sheep flocks during the UK epidemic and so there is a low probability that 100 sheep would be in the early acute phase of infection or clinical disease, simultaneously (R.P.Kitching, unpublished observations)."
 Vet Record Relative risks of the uncontrollable (airborne)spread of FMD by different species  May 12


 It would have made all the difference.
  •     the question of airborne spread was at the centre of the Winslade case
  •     the case depended on the idea that cattle  had grazed in a field where Owlaborough sheep - which may have included some infected   ones - had grazed
  •     It was assumed that a sheep could pass on the virus "through the hedge"  -- described by the Judge as a "substantial Devon hedge"
  •     According to Dr Donaldson, even as many as 10 infected sheep could not be expected to spread FMD further than 100 yards.
  •     The reason for the slaughter given by the judge was that if Winslade's animals had caught the disease they could pass it on to sheep not immediately adjacent to his farm but within half a mile - but as we read in Donaldson  it would require 100 cattle or sheep to be infected at source for an infectious dose to travel a distance of 0.2 km and be sufficient to infect cattle  Two hundred metres - Donaldson's maximum for spread even if as many as 100 cows were all breathing out virus - is nowhere near  half a mile.  What's more, Mr Winslade only had 64 cows.
The Winslade Judge gave his verdict in good faith of course and was trying to be fair.  He had no idea of the Donaldson papers.  Maff had not disclosed them  -

In the Upton case, the scientific papers submitted were dismissed by Mr Fred  Landeg (Head of Exotic Diseases at Maff) as "red herrings". 

In the Upton case, however, the Stephen Smith brought the Donaldson and Sumption papers before Lord Justice Harrison.  In refusing MAFF's demand for Mrs Upton's animals to be culled Judge Harrison said, "I am bound to say I am not impressed by Mr Landeg's dismissal of the two articles as red herrings...airborne transmission is a relevant consideration...the second article is directly relevant to whether or not the disease was likely to be transmitted to neighbouring livestock."
 "What, however, influences me most on this aspect of the matter (i.e. the possibility of onward spread)   is the scientific evidence before me that, even if the animlas do turn out to be infected, bearing in mind the number of the animals and the distances they are away from neighbouring animals, there would not be a risk to neighbouring livestock.  Bearing that  in mind and the fact that nine days have now passed since 12th June, during which there has been monitoring and happily, thus far, no sign of infection, and that there is only a further five days before the maximum incubation period will have expired, it seems to me that there is much to be said for the alternative of monitoring and blood testing.  It is something that is recommended by Dr Sumption in his report.  It is something which is not advocated by MAFF in Mr Landeg's second statement in which he said that in a Dangerous Contact case the degree of exposure is such that there is a very high risk that the animals are in the active disease process and that they insist on slaughter in those circumstances.  Consequently, a policy of inspection and/or blood testing is not thought to be appropriate.  However, it is a policy which is intended to have a degree of flexibility involved in it, albeit less than the policy relating to contiguous premises, and I bear in mind also what happened when, unwittingly, there was a MAFF vet at Hill Farm and it turned out he had been on infected premises some days before as a result of which the matter was dealt with by monitoring over a period." 
(From the Tape Transcription of the Judgement Ministry of Agriculture Fisheries and Food v. Mrs R.J.L.Upton  by Marten Walsh Chere Ltd)
        As we know, Judge Harrison refused the injunction and awarded costs against MAFF and no appeal was allowed.  Following this case no further injunctions were sought by Maff/Defra in Devon. Why not?  If there really were legal powers to allow this sort of action Maff would surely have gone on insisting where people resisted.  You don't stop using gunpowder simply because one batch got damp.