Judicial review supports UFU position on ‘intent’ in cross compliance breaches

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A judicial review taken by the Ulster Farmers’ Union has found in favour of their position, the Union has said.

The review was over the definition of ‘intent’ in relation to CAP direct support cross compliance breaches. Existing rules trigger a significant increase in the level of penalties imposed on farmers.

The case involved County Armagh farmer and former UFU president, Ian Marshall, who the UFU believes was treated extremely harshly when a modest pollution incident led to the loss of thousands of pounds of income through CAP payments.

Commenting on the decision UFU Chief Executive, Wesley Aston, said that while this was a welcome decision for the farmer involved, the UFU’s role in seeking a judicial review had been to protect the wider industry from harsh treatment for minor mistakes.

“It is not about pollution or indeed the scale of the incident,” said Mr Aston, “We accept there is no acceptable level of pollution. The case is about whether NIEA and DARD were right to effectively ignore the views of the independent external appeal panel which considered this was a negligent rather than intentional breach and had recommended accordingly.

“But NIEA/DARD considered it to be intentional and placed the burden of proof on the farmer rather than the Department to prove otherwise, imposing a much higher financial penalty and disallowing a large part of the associated CAP payment. We have always maintained that this should not be the case and today’s decision has clarified that the onus to prove intent clearly rests with the enforcement body,” said Mr Aston.

“We are no strangers to judicial reviews, and will no doubt do the same again in the future, if there are cases we believe have implications for our 11,500 members. They can be costly if unsuccessful but as a union our role is to defend our members against unfairness. Only through that collective strength can farmers take on the cost of legal action to defend a principle on behalf of the wider farming industry,” said Mr Aston.

The Union said that in this particular case, now that the precedent around proving intent has been established they are pleased that not only will ‘intent’ have to be proven more robustly in future breaches of cross compliance but also that all similar historic cases may now have to be re-examined.

The UFU was represented by Counsel with substantial experience of the operation of the Common Agricultural Policy (Hugh Mercer QC and James O’Brien) instructed by Andrea McCann of John McKee Solicitors, Belfast.