THE Solicitor General for Scotland went to court yesterday to defend the Government regulations which led to the first prosecution in the UK for serving beef on the bone.

Mr Colin Boyd, QC, argued that a sheriff's decision to dismiss a prosecution against a hotelier who sold beef ribs at a ''prohibition dinner'' was based on an ''absurd'' interpretation of the law and could not be allowed to stand.

Mr James Sutherland, 45, held the dinner at The Lodge, Carfraemill, near Lauder in the Borders, on December 22, five days after Agriculture Minister Jack Cunningham introduced the beef-on-the-bone ban.

The offending beef was piped in ceremoniously to 150 farmers and their guests at the event which was also attended by two Borders Council environmental health inspectors whose report led to Mr Sutherland being prosecuted at Selkirk Sheriff Court.

He was charged with supplying for customers to eat, beef which had been roasted while still attached to the bone contrary to regulation 3(2) of the Beef Bones Regulations 1997 and the Food Safety Act 1990.

Mr Sutherland, who also owns a 1500-acre farm with 120 beef cattle and 1000 sheep, argued that the regulations were invalid and that the charge against him was incompetent and irrelevant.

His counsel, Mr Michael Upton, submitted that risk of infection to humans from beef bones was ''minuscule'' and decreasing and that the rules had been passed for an improper motive - in an attempt to re-establish the export market for British beef rather than for the benefit and protection of consumers from the risk of new variant CJD.

In his ruling Sheriff James Paterson said that regulation 3(2) stated that ''no person shall use any bone-in-beef in the preparation of any food or ingredient for sale direct to the ultimate consumer.''

The word preparation was defined as including manufacturing and any form of processing or treatment and treatment included subjecting food to heat or cold.

The sheriff concluded: ''As to subject meat to cold is to 'prepare' meat in terms of the (Food Safety) Act, every butcher and every caterer will by merely chilling a carcass or part of a carcass of beef be guilty of the offence of which the present accused is charged.

''That will make illegal the present distribution from slaughterhouses to caterers and butchers; illegal because all such meat so distributed is, when taken to the butcher shop or a hotel or restaurant, placed by the owners of such businesses in a chilled room.

''That is done to keep the carcass of meat wholesome for the benefit of the 'ultimate consumer.' Thus, in one short sentence, Parliament has destroyed the present system of meat distribution and undermined the protection of the consumer from eating bad meat. That is such a manifest absurdity that regulation 3(2) must be defective.''

Yesterday, the Solicitor General said: ''In my submission the regulations do no such thing.''

The word ''prepare'' had to be read in the context of food or ingredients for sale direct to the ultimate consumer - in Mr Sutherland's case the people who ate the roast beef.

That did not include processes such as the chilling, distribution and storing of meat which was part of the commercial process excluded from the regulation. That was not preparation for sale to the ultimate consumer.

''There's a clear difference between the butchering of beef and preparation.

''Preparation consists of things like cooking it, tenderising it, marinading it. It's that bit of the process which ends up with the product going to the ultimate consumer.''

The regulations allowed for the commercial sale from the slaughterer to the butcher and it would reduce the situation to absurdity if ''preparation'' went back to the slaughter of the animal, Mr Boyd maintained.

Mr Neil Brailsford QC, for Mr Sutherland, argued that the bone was the supposedly infective part and the policy behind the regulations was to keep that infective part out of the human food chain. That required the ''preparation'' to embrace the manufacturing, processing and treatment of the meat.

Storing and chilling was a means of preparing the meat in a fit state for human consumption.

Lord Cullen, the Lord Justice Clerk, who heard the appeal with Lords Coulsfield and Abernethy, will give a written decision later.