A bone of contention

What was all the fuss about? Had my client been cleared of murder? No! I had just succeeded in having a charge of serving a roast rib of beef dinner dropped . . . ! What the general public saw and what the media published was just the tip of the iceberg.

I was acutely aware that the Scottish legal system would provide a unique opportunity for a root and branch challenge to the competency of the Government's beef on the bone regulations. Central to that challenge would be that Ministers at Westminster acted illegally and irrationally in creating the regulations - making totally invalid the ban on the supply of beef on the bone and, therefore, the case against Borders hotelier Jim Sutherland as well.

As soon as it became clear that our defence would question the competency of the case I knew that we would not only be taking on the procurator-fiscal but also confronting the Government head on.

My first consideration was to assemble a team to construct and ultimately present Jim's defence. So I immediately called on my colleague, Andrew Wilson, whose enthusiasm, diligence, and persistence were going to be crucial in the primary stages of constructing a compelling defence.

The third member of the team was an easy choice - advocate Michael Upton, whose expertise and brilliant presentation skills had impressed us in previous cases.

We knew that the time available to us to research and develop our defence was limited, and that we had to formulate in outline the grounds of our challenge by March 10. From then, we had just three weeks to develop and fine-tune our arguments for presentation to Sheriff James Paterson.

Now, three weeks may be a long time in politics but, as many lawyers would tell you, it is very little time to prepare a major case.

Fundamental to our research was the 1990 Food Safety Act. While this gives Ministers the power to make regulations it is implicit in the Act that, to be valid, any such regulations must have as their goal the prevention of any ''material risk'' to the health of the nation.

What we were going to argue, and what our research supported, was that when the regulations were made law, in December 1997, there was no evidence -scientific or otherwise - of any such ''material risk''. Moreover, in December 1997, the risk of harm from the supply of beef on the bone prepared lawfully under pre-existing legislation (including rules covering the age, nurture, and registration of cattle) was negligible. Even now, experts are saying that the risk to health is one billion to one.

With mountains of material to sift through and evaluate we turned to every lawyer's new friend - the Internet.

The more we ''surfed'', the more we found to support our case. We accessed key research documents, such as the Det Norske Veritas report (research commissioned by MAFF and SEAC into the risks of contracting nvCJD - new variant CJD - by eating food that contained dorsal root ganglia).

One of the principal conclusions of this report, which was available to the Government, was that a ban only reduced the already infinitesimal risk of CJD infection by a further 25%, not 100% as claimed by the Minister of Agriculture, Dr

Jack Cunningham.

We realised that our research was stacking up evidence in Jim's favour and pointing in the direction we wanted - that the Government's main aim in creating the regulations was for the improper purpose of placating Europe in an attempt to get an early lifting of the export ban on British beef.

An additional arm of our defence would be that the Ministers acted improperly by failing to follow the full and proper consultation process, particularly in Scotland, before the ban became law. The Government had been considering the introduction of these regulations for four months yet they allowed a consultation of only four working days, so that the regulations were tainted by procedural irregularity. However, after two and half days in court and 90 pages of submissions, the pivotal argument which underpinned the Sheriff's final decision to dismiss the case would revolve around the meaning of

the word ''preparation'' as used in the regulations.

Its use is either so absurd as to render the regulations invalid or so obscure as to make them unenforceable. Regulation 3(2) provides: ''No person shall use any bone in beef in the preparation of any food or ingredient for sale direct to the ultimate consumer.''

In the ''general interpretation'' section of the enabling legislation (Section 53 of

the Food Safety Act 1990) it stipulates that ''preparation'' of food includes ''manufacture and any form of processing or

treatment . . .'' The same interpretation section goes on to specify that ''treatment'',

in relation to any food, includes ''subjecting it to heat or

cold''.

Accordingly, ''preparation'' equals ''refrigeration'' and, so, refrigeration of raw beef at any stage after the beast has been slaughtered would consequently constitute a breach of regulation 3(2) and be a criminal offence. That is absurd.

Therefore, we argued, does regulation 3(2) in fact mean something else? It could mean that preparation starts at some later stage - after the initial slaughter and refrigeration. In that case, the question is, when does preparation begin?

Is it when the offal is removed at the slaughterhouse? When the carcass is skinned? When the carcass is dismembered into halves and sides etc? When the meat is hung to age it? When it is tenderised by machine or hand? At the butchery stage when it is cut, trimmed, rolled, or strung? No guidance is given.

Sheriff Paterson, in his robust ruling, answered all these questions: ''In one short sentence in a piece of subordinate legislation Parliament has destroyed the present system of meat distribution and undermined one of the main purposes of the Food Safety Act, namely the protection of the consumer from eating bad meat.

''That is such a manifest absurdity that regulation 3(2) must be defective.''

His ruling, I believe, fully vindicates our strategy of challenging the Government's competency in creating the ban on sale of beef on the bone and emphasises that, without the likes of Jim Sutherland being prepared to take a courageous stand against the Westminster establishment, such ridiculous legislation would remain unchallenged and in effect.

This was not only a personal victory for Jim, it was a victory for common sense.

The Government must be vigilant but it must also be aware that in creating such absurd and untenable legislation our confidence in it to act responsibly is badly shaken.

The procurator-fiscal is now appealing against the sheriff's decision, but we believe the credibility of the Beef Bones Regulations is so severely damaged that they should be confined to where they surely always did belong - an archive marked ''the law is an ass''.

n David Kidd is of Biggart Baillie.