At least four cases have come to the Court of Session as a result of the foot and mouth outbreak in Dumfries and Galloway and elsewhere in the UK, and the Government policy of containing and eradicating the disease by means of a cull of all hoofed animals within a 3-kilometre radius of any farm where an outbreak had occurred. In Westerhall Farms v The Scottish Ministers, 25 April 2001, 2001 GWD 14-537, Lord Carloway refused an interim interdict to prevent a cull of cattle and sheep on the petitioners’ farm, rejecting arguments, inter alia, that it was a breach of Article 1 of the First Protocol to the European Convention on Human Rights (peaceful enjoyment of possessions). The petitioners had claimed that the only part of their farm within 3 kilometres of the outbreak was a high boggy area where the sheep did not go, while the prevailing wind was from theirs to the infected farm.
In Shepherd v The Scottish Ministers, 1 May 2001, 2001 GWD 15-570, Lord Carloway refused to interdict the slaughter of livestock at a farm in Sutherland, where the farmer in question had visited his brother’s farm in Cumbria during April and that farm had subsequently been declared an infected area. The farmer’s human rights argument was rejected on the basis that he would receive compensation for the animals killed and the government response to the problem was not disproportionate.
In a third case, Carolyn Hoffe of Glasserton sought unsuccessfully to prevent the slaughter of her five pet sheep (Dutch Zwartbles named Maggie, Matthew, Melissa, Emily and Eva) following an outbreak at nearby High Bishopton Farm. She had previously barricaded the sheep in the living room of her house, having first taken out the carpet and furniture, and argued that they were not exposed to the risk of infection. Lord Clarke, although not wholly convinced that the petition was without merit, held on 4 May that he was not prepared to order the suspension of the operation, and the slaughter was carried out that evening.
On 10 May 2001 Lord Clarke refused to interdict the culling of 17 goats and 9 sheep at the Mossburn Animal Sanctuary near Lockerbie, even although the last confirmed case within three kilometres of the sanctuary was on March 26 and the incubation period for the disease in sheep and goats had long passed. However, on 11 May the judge granted a stay of execution, to allow the putting of a new argument, to be heard on 15 May, to the effect that the decisions on the culls by the Scottish Executive being contrary to the European Convention on Human Rights, there was a devolution issue which should be referred to the Privy Council. On 14 May the Scottish Executive announced a change of policy and that possible culls would now be considered on a case-by-case basis, rather than taking place automatically if the 3 kilometre criterion was met, and the court action about Mossburn was adjourned, to allow testing of the animals and checking of the bio-security measures.