Making No Bones About IT – A Case Study of Use of the Internet

April 30, 1999

On the 22nd of December 1997, assembled diners at the Lodge Hotel,Carfraemill, sat down to enjoy ye Roast Beef of Olde Scotland. The only problemwas that the beef still adhered to the bone and so, as every carnivorousgastronome knows, fell foul of the Beef Bones Regulations 1997 introduced justseven days previously. The proprietor, Jim Sutherland was duly charged. The caseattracted considerable media interest and the initial judgment, in MrSutherland’s favour, was doubtless celebrated long into the night. Of someinterest, is the use of the Internet in preparing the defence.

Although the case in the first instance eventually turned on theinterpretation of the word `preparation’ in reg 3(2) of the Beef BonesRegulation 1997, the legal teambegan with the intention of challenging the viresof the Regulation as the enabling act, The Food and Safety Act 1997, required anestablished `material risk’ to the health of the nation as a prerequisite forthe introduction of such regulations. The existence of `material risk’ couldonly be determined by scientific evidence.

The team’s initial findings suggested that there was no such evidence.Procedure in the Sheriff Court under the summary cause rules meant that the teamhad effectively three weeks to prepare for a preliminary hearing set down forfour days. The widespread and consuming interest (in every sense) in the casehad resulted in much useful information being sent in by well-wishers – much ofit downloaded from the Internet. This suggested the possibility of tracking downmore, particularly in the form of published articles supporting the view thatbeef on the bone constituted `material risk.’ Searching the Net and postingquestions produced no scientific articles in support of the Regulations. Thescientific experts, already long established Internet aficionados, began throughnewsgroups to bring together the most up-to-date scientific information fromaround the globe.

It was recalled that during a House of Lords Debate on the Regulations,reference had been made to a report by Det Norske Veritas into the risks ofcontracting CJD by eating dorsal root ganglia. The Report concluded that evenwith the ban in place this only reduced the already infinitesimal risk of CJDinfection by a further 25% and not the 100% claimed by the Minister ofAgriculture! The discovery that Det Norkse Veritas had a website lead to thediscovery of the text of this key document.

Tracking down the text of the Regulation itself was an initial problem. Until20 January 1998, it existed uniquely in a copy in the House of Commons Library.(Although it subsequently transpired that it had been published on the Ministryof Agriculture’s Web site.) The Ministry’s Web site also provided other usefulinformation (particularly their BSE site) as did other government sites. Anothervaluable source of information was the electronic BMJ. Within the time scaleavailable,. it would not have been possible for the team to assemble and analyseits scientific evidence and opinion to the extent that it did, without use ofthe Internet.

Incidentally, the Ministry of Agriculture published the Sheriff’s decision infull on their Web site – thus making a little bit of legal history as this(other than those of Scottish cases in the House of Lords) appears to be thefirst publication of a Scottish judgment on the Internet.

The Crown successfully appealed the Sheriff’s decision and remitted the caseback to him. After further arguments the Sheriff repelled Mr Sutherland’sobjection to the competency of the charge. Mr Sutherland is currently appealingagainst that decision which had the effect of sending the case to trial atSelkirk in May. It was hoped that the Government would lift the ban in March,but the ban has now been extended for a further six months. Doubtless MrSutherland’s defence team will be making further use of the Net to review theevidence in the light of the current scientific view of the material risk ofdying from eating a T-bone steak to be about one in two billion (The Times5 February 1999).

(A version of this article was published on the Scottish Home Page of the SCLwebsite in July 1998. Reference is made to David Kidd’s account of the case`Preparation is everything’ in the May 1998 issue of the Journal of the LawSociety of Scotland. The author of the present article is most grateful to DavidKidd and to Andrew Wilson of Biggart Baillie for their kind assistance.)