Nullum crimen sine lege. Nulla poena sine lege.
On 20 March 1997 Sheriff Michael Fletcher authorised the state to take every animal in Powhillon's cattle herd. Procurator Fiscal David Howdle had asked for authority not merely to inspect or protect the animals temporarily, but to remove them all and permit Scottish Office veterinary officers to destroy, slaughter or sell them as those officers considered appropriate. Fletcher granted the warrant before a criminal trial, before any conviction and without determining who owned the cattle.
Howdle's involvement with Powhillon had begun at least four years earlier. He had personally brought the 1993 complaint charging Daniel with shooting three protected geese and breach of the peace. That prosecution placed Powhillon's agricultural condition, serious goose damage, failed scaring and unsuccessful licence applications before the court. Scottish Office agricultural officers gave evidence for the defence, Daniel relied upon section 4(3)(c) of the Wildlife and Countryside Act 1981 and he was acquitted on every charge. In March 1997 the same Procurator Fiscal returned to court seeking authority to remove the cattle which that grazing had supported.
The operation began the following morning. Officials later accounted for 193 cattle. Within weeks animals were being sold; others had died or been destroyed; the remainder generated costs which were deducted from the value of the herd. By the time the Crown's allegations should have been proved by evidence, the working herd had been dispersed. It could no longer be examined as a herd by the defence, seen by the trial court or restored to the farm after an acquittal.
The veterinary papers record serious allegations. At the moment Fletcher acted, they remained allegations. No witness had been examined at a criminal trial, Daniel Quinn had not been convicted and the surviving interlocutor recorded no findings explaining why all the cattle, rather than particular animals, required removal and possible permanent disposal. The law already distinguished inspection, emergency treatment of a suffering animal, temporary safe custody and deprivation after conviction. Howdle's petition collapsed those separate powers and safeguards into one irreversible result.
The petition was presented under section 134 of the Criminal Procedure (Scotland) Act 1995, which covered applications incidental to proceedings by complaint and, separately, applications for orders a court otherwise had power to grant. Fletcher’s interlocutor did not identify the substantive authority for permanent whole-herd disposal. Years later Lord Turnbull called the petition one brought “at common law”, but he too identified no common-law rule authorising the permanent disposal of another person's cattle before trial.
Long before the events at Powhillon, Scots criminal law treated domestic farm animals as property capable of being stolen. In his Commentaries on the Law of Scotland Respecting Crimes, Baron Hume wrote: “with respect to domestic creatures, or creatures domitae naturae, such as horses, sheep, poultry and the like, it is equally clear that these are the proper subjects of theft.” That settled classification did not prevent lawful intervention to protect a suffering animal. It meant that intervention still required authority capable of overriding the rights of whoever owned the herd.
The reported Scottish authority directly addressing the relationship between common law and animal cruelty was Shepherd v Menzies, 1900 2 F 443. Lord Kyllachy stated that cruelty to animals “is not so at common law, but it is made so by the Statute.” The limited common-law intervention discussed in the case concerned entry to ascertain and stop an offence in progress and to apprehend the offender. It did not extend to depriving an owner of animals or authorising their sale, slaughter or destruction before conviction.
Turnbull did not explain how Fletcher's warrant could pass from that limited investigative intervention to permanent whole-herd disposal. Nor did he reconcile the claimed power with the 1912 Act's separate provisions for emergency destruction, temporary custody and deprivation after conviction. The authority which should have connected common law to the result remained missing.
Powhillon alleges that the petition bypassed the distinctions Parliament had drawn between inspection, emergency intervention, temporary custody and deprivation following conviction. The documents show the powers already available, the breadth of Howdle’s request, Fletcher’s unexplained grant and the speed of the removal. They do not record why the prosecutor chose that route; the question is whether an identifiable power authorised the result.
That is the core of the Cattle Stolen story: legal authority was required before the herd was taken, not supplied years afterwards as a label for an accomplished act.
Powhillon's livestock history included bovine viral diarrhoea (BVD). In a signed letter dated 17 May 2004, veterinary surgeon G. A. Baxter of Firth Veterinary Centre confirmed an outbreak among R Hill & Co's suckler calves in spring 1986, resulting in numerous deaths from persistent BVD infections. R Hill & Co records that the disease continued to affect the herd in subsequent years.
The condition of the farm buildings had also been disputed for years. On 26 March 1986, WWT's factor authorised demolition of the old byre and piggery and said these would then be deleted from the lease. On 7 March 1988, WWT's solicitors refused consent for a new shed and stated that the Trust would provide no financial assistance for its erection. On 8 April 1988, Austins described the proposed replacement as unnecessary, referring to repairs to existing sheds and a proposed inspection. The Trust had offered contributions towards specified repairs to existing facilities, not towards construction of the new shed.
Following an inspection of Powhillon, Health and Safety Executive Agricultural Inspector David G. Wood wrote to Daniel on 17 May 1990, requiring immediate steps to provide suitable cattle-handling facilities. Wood also raised concerns about the structural integrity of other buildings, which he identified as the landlord's responsibility, and proposed discussing those matters with WWT. In correspondence dated 14 June 1990, R Hill & Co's representative acknowledged WWT's subsequent consent for a replacement cattle building, general-purpose building, feed stance, midden and cattle-handling facilities. The letter recorded the continuing dispute over responsibility for the steading and the absence of financial assistance for the new building. Daniel Quinn has confirmed that he personally constructed the cattle shed in 1990.
R Hill & Co records that Daniel subsequently asked the Ministry for veterinary assistance, following which Robert G. H. Smith became involved. Smith and Divisional Veterinary Officer N. Winter inspected the cattle on 28 April 1994. In his letter of 4 May 1994, Smith told Daniel that there were more cattle than he could look after during winter “with the available buildings”. Newly calved cows and calves had to cross deep mud between silage and dry pasture. Smith also required better supplementary feeding for autumn-born stirks and action concerning uncastrated young stock.
Daniel accepted that the route through the mud was undesirable. Smith specified corrective measures, copied the letter to Daniel's veterinary surgeon and proposed another inspection. By then Daniel had already constructed additional cattle accommodation in response to the 1990 HSE intervention. Smith's assessment nevertheless expressly related the number of cattle that could be managed during winter to the capacity of the available buildings.
The condition of those buildings, together with drainage, water supply, fences, sea wall, ditches and merse, had entered the Damages Arbitration. The tenant alleged that WWT had failed to maintain fixed equipment necessary for the agricultural holding. Those disputed responsibilities remained unresolved when Howdle sought removal of the herd in March 1997.
On 4 March 1997 Scottish Office Veterinary Officer K. L. Kerr recorded serious concerns following visits on 27 and 28 February. She described inadequate nutrition, competition between weak and stronger animals, uncontrolled breeding, dangerous material in the yard, unsafe ring feeders, a lack of an effective dry lying area close to food and shelter, deficient identification and movement records, and four carcasses requiring removal.
Kerr's letter records that on 27 February Daniel “requested that I euthanase a weak and emaciated heifer which was down and unable to rise”. The description corresponds to the animal in charge 4 of the later complaint, which alleges that the heifer was destroyed on 27 February 1997. R Hill & Co states that the heifer did not regain her feet and that the partnership arranged euthanasia through the knackery after Kerr's visit, rather than the Ministry performing it. The family recalls Kerr directing Daniel to seek his own veterinary assistance, although her letter does not expressly record such an instruction; it says his veterinary surgeon could advise him. The difference between the charge's destruction date and the family's account requires verification against any knackery record. The Crown subsequently accepted the not-guilty plea to charge 4. Kerr also recorded Daniel's explanations about access to drier fields and omissions in his records. She proposed returning on 11 March to discuss the required measures and invited Daniel to have his veterinary surgeon present.
Howdle’s subsequent petition relied upon further Ministry veterinary observations on 11, 12 and 14 March, including allegations concerning a cow unable to rise and an emaciated calf said to require attention. The original complaint’s charge 9 referred successively to a Simmental-cross heifer, cow and heifer calf, finally alleging suffering to the calf. Gilmour’s later report focused on the calf and recorded the Crown’s account that Daniel had administered prescription antibiotic Depomycin but had not called out a veterinary surgeon for it. R Hill & Co states that Firth Veterinary had trained Daniel to administer prescribed antibiotics during the herd’s longstanding BVD problems and supplied those medicines for him to give. That background does not resolve the separate allegation about a veterinary visit to this particular calf. The older cow was known to R Hill & Co as Maggie. In his later signed report, Temporary Sheriff Jamie Gilmour recorded the Crown's account that Kerr had advised humane destruction on 11 March and that the cow remained at Powhillon on 12 March. R Hill & Co records that Daniel disputed Kerr's approach to Maggie's treatment on 11 March and requested another veterinary officer, referring to his earlier experience with Smith. R Hill & Co records that Maggie did regain her feet following continued care, but did not fully recover; the partnership arranged for her to be euthanised a few days later. Charge 8 gives 12 March as her destruction date; that date needs to be reconciled with the family’s account of her treatment and eventual euthanasia. She was not the heifer described in Kerr’s letter of 4 March. The partnership’s account is that subsequent Ministry visits were carried out without prior announcement or notification.
Kerr's 4 March letter proposed further discussion of remedial measures. On 18 March Howdle brought his petition for removal of the whole herd, and on 20 March Fletcher granted it, including authority for permanent disposal as the veterinary officers thought appropriate. The Ministry's observations and Daniel's account of the animals' care form part of the history of that application. The power to remove and permanently dispose of all the cattle before trial was a separate legal question.
On 18 March Procurator Fiscal David John Finlay Howdle presented an incidental petition under section 134 of the Criminal Procedure (Scotland) Act 1995. It described Daniel as a partner in Hill & Company, said that the partnership farmed Powhillon and recorded that the land was let to his mother-in-law by WWT. It alleged that Daniel was responsible in practice for approximately 164 cattle and was failing to provide adequate food, veterinary attention and shelter.
Howdle did not ask only for entry, examination or treatment. He asked for police officers, Scottish Office veterinary officers and SSPCA personnel to enter Powhillon, remove all the cattle and take them to other farms in Dumfries and Galloway or to the Lothian Animal Welfare Centre at Balerno. Once removed, the veterinarians were to be authorised to manage the animals as they considered appropriate, including by destruction, slaughter or sale. Sale proceeds were to be returned to Daniel only after transport, feeding, veterinary, sale, slaughter and upkeep costs had been deducted.
Permanent disposal was therefore not an unforeseen consequence which emerged after removal. It was part of the remedy Howdle sought from the outset. Yet the petition's own description distinguished Daniel from the partnership which farmed Powhillon, and it did not determine whether title to the animals belonged to Daniel, R Hill & Co, Mrs Hill or another legal person. The warrant would operate upon the property first and leave that question unanswered.
Howdle was not asking the sheriff to improvise temporary care while the law caught up. He placed sale, slaughter and destruction inside the order itself. When Turnbull later described the petition as one brought at common law, the legal choice became explicit: the permanent pre-trial result did not come from the deprivation provisions which Parliament had enacted for use after conviction. Powhillon's allegation is that Howdle resorted to an undefined common-law power precisely because the statutory scheme did not give him the result he sought at that stage.
What followed reinforces that inference. After the cattle had been taken, the criminal complaint proceeded upon statutory offences. The alleged cruelty was prosecuted under statute; common law supplied the description of the route by which the herd had already been removed and exposed to disposal. The difference is central. The statutory prosecution required proof and placed deprivation after conviction. The common-law petition achieved deprivation first.
Fletcher did not grant the petition when Howdle first presented it. On 18 March he heard the prosecutor alone, ordered that a copy of the petition be intimated to Daniel and fixed a hearing for 9:30 a.m. on 20 March. The direction concerned the petition itself: the written allegations and the extraordinary whole-herd order which Howdle wanted.
Daniel's account is that a police sergeant arrived at Powhillon at 5:30 p.m. on Wednesday 19 March and told him to attend court the following morning. No copy of the petition was delivered. The sergeant could say only that Fletcher had ordered Daniel's attendance. According to Daniel, the Depute Procurator Fiscal read the petition aloud in court the next morning, giving him his first knowledge of its full terms. No surviving execution of service has been found to show that the ordered copy was delivered.
Daniel opposed the removal. Howdle later confirmed the essential fact in writing: “He did oppose it but was unsuccessful.”
Section 140(2) of the 1995 Act ordinarily allowed an accused at least 48 hours between citation and a summary diet unless special circumstances justified less. Whether that provision governed an appearance on this standalone section 134 petition has not been determined in the surviving proceedings. What the record does determine is narrower and direct: Fletcher ordered a copy of the petition to be intimated, while the family account is that Daniel received only an oral instruction sixteen hours before the hearing and entered court without it.
On 20 March Fletcher heard the Depute Procurator Fiscal and Daniel in reply. His handwritten interlocutor then recorded the result in three words: “grants warrant as craved.” It contains no reasons, no finding about ownership and no explanation of why measures short of permanent whole-herd disposal were inadequate. It identifies no animal-welfare statute or rule of common law which conferred the substantive power Howdle had asked him to exercise.
The absence of reasons mattered immediately. The warrant did not merely preserve the position until a trial. It transferred control of a productive agricultural herd to public officials and authorised them to make irreversible decisions before the allegations had been proved.
Removal began the next morning. The Powhillon account records Scottish Office veterinary personnel, police officers, quad bikes and twelve livestock lorries arriving on Friday 21 March. Dr M. H. Lamont later confirmed that the Ministry removed 191 cattle on Friday 21 and Saturday 22 March and found two further calves at Powhillon afterwards.
Moving almost two hundred cattle required vehicles, drivers, veterinary and police personnel, receiving farms and provision for continued custody. Howdle's petition had already named other farms and the Balerno centre as possible destinations. The surviving archive supplied to Powhillon does not contain the lorry bookings or instructions to the receiving premises, but the scale of the operation and its readiness the morning after Fletcher's decision establish that substantial operational planning preceded the final grant.
Powhillon alleges that the removal and disposal had been decided in substance before Daniel entered court. The present documents do not contain an instruction saying that Fletcher's decision itself was predetermined. They establish something still consequential: the state had prepared to execute a whole-herd operation immediately; Daniel says he received no petition; the hearing ended on Thursday; and execution began on Friday and continued into the weekend.
There was no meaningful practical interval in which to obtain the missing papers, secure legal advice and seek suspension before the herd was dispersed. By the time a challenge could have been prepared, the irreversible result Howdle had requested was already being carried out.
No crime without law. No punishment without law. The principle of legality requires coercive state power to have an identifiable legal source and keeps criminal consequences within the limits Parliament and the common law have actually established. A professional cannot replace that source with an outcome thought convenient or desirable.
The March order was described as an incidental warrant rather than a sentence. Its substance was nevertheless a deprivation which the 1912 Act expressly addressed after conviction: control of the cattle passed to officials, the herd was dispersed, costs were taken from its value and return became impossible. Calling that result incidental did not release Howdle or Fletcher from identifying the law which authorised it before guilt was proved.
That requirement was already part of Scots criminal law. In Jamieson v Dow (1899) 2 F (J) 24, the Lord Justice-Clerk held a criminal complaint irrelevant where it failed to charge conduct which was necessarily illegal. He described a complaint which suggested “an offence is being charged which has never been precisely defined” and which had “not necessarily anything illegal in it.” The conviction was quashed.
Jamieson did not concern cattle, animal welfare or a disposal warrant. Its significance at Powhillon lies in the question which had to be answered before Howdle could obtain the order he sought: what existing rule of law authorised that result? Neither a prosecutor's application nor a sheriff's signature could create a criminal power which had not already been established by law.
Howdle alleged cruelty but sought something extending far beyond investigation or temporary protection: removal of the entire herd followed by sale, slaughter or destruction before trial. Fletcher granted that application “as craved” without identifying a statutory enactment or a defined common-law rule authorising permanent pre-trial disposal. The later statutory complaint could not supply that authority retrospectively.
Fletcher's March interlocutor did not identify the substantive source of the power. Section 134 of the Criminal Procedure (Scotland) Act 1995 covers applications incidental to proceedings by complaint under subsection (1)(a); subsection (1)(b) also covers applications where a court already has power to grant an order, even if no subsequent complaint follows. The section prescribes how such applications may be brought by a prosecutor’s petition. Neither alternative expressly confers a new substantive power to deprive an owner of an entire herd or authorise its permanent disposal before trial.
That distinction is visible in the words of the section. It applied to an application incidental to a complaint and to an application made “where a court has power to grant any warrant or order of court” even if no complaint followed. It prescribed a petition by the prosecutor and implied authority to break open locked premises where necessary. It told Howdle how to apply. It did not say what substantive orders a sheriff was legally entitled to grant.
Nor was a whole-herd warrant required simply to allow Government veterinarians to inspect the cattle. Section 6 of the Agriculture (Miscellaneous Provisions) Act 1968 already allowed authorised officers to enter agricultural land at reasonable times, inspect and examine livestock, take tests or samples and obtain access to livestock accommodation for statutory purposes. Kerr and other veterinary officers had already entered Powhillon and examined the animals.
Howdle's petition sought something fundamentally different from inspection. It sought compulsory possession followed by sale, slaughter or destruction. That permanent result required its own lawful source.
The Protection of Animals (Scotland) Act 1912 made cruelty and causing unnecessary suffering statutory offences. It then distinguished the powers available at different stages and for different purposes.
Section 10 dealt with an individual animal so severely injured, diseased or physically compromised that it would be cruel to keep it alive, ordinarily supported by veterinary certification. Section 11 allowed a police constable who apprehended the person in charge for a cruelty offence to place animals in safe custody until the proceedings ended or the court directed their return. That was protective custody, not an immediate transfer of ownership.
The court's powers to order destruction or deprivation as part of the criminal case appeared after conviction. Section 2 permitted a court, following conviction and the required evidence, to order destruction of an animal where continued life would be cruel. Section 3 permitted deprivation of ownership after conviction where the court was satisfied that leaving the animal with the convicted person was likely to expose it to further cruelty.
The statutory sequence protected animals without treating ownership, proof and timing as irrelevant: emergency action directed to an animal in immediate suffering; temporary custody while proceedings remained unresolved; destruction or deprivation after conviction upon the specified conditions. None of those provisions conferred a power to remove and dispose of every animal before trial. Fletcher's warrant did not identify another statute which did.
The 1912 Act did not transfer ownership merely because animals were placed in safe custody. Section 11 left ownership in place while the proceedings continued. Section 2's reference to an owner's assent concerned the evidence required for a post-conviction destruction order; it was not a general power to obtain surrender of the animals or transfer their ownership. An owner could separately agree to surrender or transfer property voluntarily under ordinary Scots law, but that depended upon consent rather than compulsion under the Act.
There was no such consent at Powhillon. Howdle later recorded that Daniel “did oppose it but was unsuccessful.” No document records Daniel or R Hill & Co voluntarily relinquishing or transferring ownership of the herd, and Fletcher made no determination of title before granting the warrant. The cattle were taken under compulsion, not surrendered.
Voluntary relinquishment therefore cannot supply the missing bridge from temporary protection to permanent disposal. If ownership was to be removed without consent, the 1912 Act placed deprivation after conviction and required the statutory conditions to be met. The warrant instead authorised sale, slaughter or destruction before trial while leaving ownership undecided.
Section 11's temporary-custody power began with a police constable apprehending the person in charge for a cruelty offence. That did not happen at Powhillon. In a later letter, Chief Inspector Kate Thomson of Dumfries and Galloway Constabulary confirmed that the alleged offences had not been reported to the police and that no police officer had arrested or formally charged Daniel in relation to them.
The dates show what occurred instead. Fletcher granted Howdle's warrant on 20 March. Removal began on 21 March and continued on 22 March. On 22 March WPC Susan Amanda Kerr served Daniel with the formal complaint setting out the charges at Howdle's instance. Those charges alleged statutory offences. They were delivered only after the whole-herd operation had begun under the separate warrant which Turnbull later described as having been brought at common law.
The complaint commenced the criminal proceedings, but it could not retrospectively turn Fletcher's warrant into section 11 custody. The statutory gateway—apprehension by a constable—had not occurred. Section 11 would in any event have authorised safe custody pending the proceedings, not sale, slaughter or destruction before their outcome. The later complaint therefore reinforces rather than fills the gap: Howdle and Fletcher still required another lawful source for the permanent result they had already set in motion.
The reported Scottish authority was Shepherd v Menzies, 1900 2 F 443. Lord Kyllachy stated the starting point plainly: cruelty to animals “is not so at common law, but it is made so by the Statute.”
Lord Kyllachy considered that the police might possess a common-law power to enter property to ascertain and stop an offence in progress and apprehend the wrongdoer. The other judges resolved the case upon statutory authority and stressed that it gave no encouragement to general inquisitorial entry or invasion of private rights. The decision concerned entry, investigation and the stopping of an ongoing offence. It did not authorise permanent pre-trial disposal of the owner's animals.
The distinction cannot be crossed by changing the label from statute to common law. A power to enter land and stop immediate cruelty is not, without more, a power to sell the herd, destroy animals which cannot be sold, deduct the costs and leave the owner with whatever money remains.
Hay v HM Advocate, 1968 SLT 334 explained the common-law warrant as a controlled means of reconciling criminal investigation with the individual's liberty and property. Before apprehension, the recognised warrant was directed to search or examination for evidence. The independent judicial officer was the safeguard against an order which was too general or oppressive.
Howdle did not ask Fletcher to preserve evidence by searching Powhillon. Government officers already had statutory access and had inspected the cattle repeatedly. He asked for an order converting an unproved allegation into irreversible control of the farm's property. Neither Hay, Shepherd nor section 134 identifies that broader power.
Scottish authority recognises that legislation does not automatically abolish every pre-existing common-law power touching the same subject. In Watson v Muir 1938 JC 181, the High Court held that regulations governing inspection of a motor vehicle had not restricted the procurator fiscal's common-law power to search and test the vehicle in the circumstances of that case. In Normand, Complainer 1992 SLT 478, statutory provisions concerning bankers' books did not displace the common-law power to grant a warrant to inspect, copy and secure material as evidence before proceedings had begun.
Those decisions began with an established evidence-gathering power and asked whether later legislation had restricted it. They did not recognise a free-standing power to deprive an owner of property, sell it, destroy it or use its value to meet official costs before trial. They therefore cannot carry Howdle's petition across the boundary identified in Hay: from search, examination and preservation of evidence to irreversible disposal.
The order of the legal questions matters. First: did the claimed common-law power exist? Second: what was its scope? Only then does it become necessary to ask whether Parliament restricted it. Turnbull's statement that the 1912 Act did not restrict the sheriff's common-law powers began at the third question. It did not identify the power at the first or show that its scope at the second extended beyond temporary protection to sale, slaughter and destruction of the herd.
The capacity in which a sheriff deals with a prosecutor's warrant application was later stated clearly. In McMillan v Procurator Fiscal, Dumfries [2017] SAC (Crim) 2, Sheriff Principal M. M. Stephen QC said that the prosecutor's motion is put before “a judge of the court” and that, in deciding whether to grant it, the sheriff is “exercising his administrative powers and is not sitting as a court of summary jurisdiction.”
That followed the High Court's reasoning in McWilliam v Harvie [2016] HCJAC 29, where Lady Dorrian, referring to Lord Gill's opinion in Brown v Donaldson 2008 JC 83, stated: “In granting such a warrant the sheriff is not sitting as a court.”
Those cases concerned the procedural character of prosecutorial warrant applications. Their significance at Powhillon is direct. On 20 March 1997 Fletcher was not conducting Daniel's trial, deciding guilt or exercising the post-conviction jurisdiction created by section 3 of the 1912 Act. He was a judge deciding whether to grant Howdle's application. His intervention supplied independent scrutiny only if he tested whether the requested order was competent, whether a substantive power existed and whether its breadth was justified.
The distinction deepens the problem rather than curing it. Section 3 entrusted deprivation after conviction to the court which had heard the criminal case and could assess the evidence. Fletcher's administrative grant of a pre-trial warrant could not become that statutory adjudication. Daniel's appearance before him did not create a jurisdiction which neither the petition nor the interlocutor identified.
Fletcher's decision cannot be separated from a judgment he had delivered only five months earlier in the Damages Arbitration on 3 October 1996. Within the tenant's overall claim for damages for alleged breaches of the lease, £220,800 was separately itemised as the estimated cost of remedying defects in buildings, drainage, water supply, roads, dykes and fences. WWT did not introduce that figure; it argued that this particular monetary measure should instead be treated as specific implement “by the back door”.
Fletcher accepted WWT’s characterisation of the monetary head. He reasoned that work affecting buildings owned by WWT called for the protection of a Sheriff Court action for specific implement, with disputed facts referred to arbitration and any resulting works supervised by the court. He described the court procedure as “an essential safeguard” for the landlord’s property. But the tenant had asked for damages, not authority to carry out works. Fletcher excluded the whole £220,800 damages head before proof established the nature of the defects, any contractual breach or the resulting loss.
In the same arbitration, Sheriff K. G. Barr had ruled on 27 March 1995 that section 60 of the Agricultural Holdings (Scotland) Act 1991 gave Marshall statutory jurisdiction to determine alleged breaches of the lease and award damages. Barr’s judgment identified anticipated expenditure on remedying Powhillon’s defects among the matters in dispute. WWT had relied on the arbiter’s inability to order ad factum praestandum in its unsuccessful attempt to restrict damages jurisdiction generally. Before Fletcher it accepted consequential damages but argued that the separately itemised £220,800 should be classified as specific implement instead. Fletcher’s written judgment did not refer to Barr’s earlier ruling or explain how excluding this monetary head fitted with the damages jurisdiction already confirmed. The two decisions and their different legal questions are examined in the Damages Arbitration.
On 20 March 1997, five months after that judgment, Fletcher granted Howdle’s warrant to remove the cattle and permit their sale, slaughter or destruction before trial. His surviving interlocutor recorded no determination of ownership, no reasons addressing the breadth or irreversibility of the order, and no identification of the substantive legal power relied upon. In October, he had treated the possibility of unsupervised works to WWT’s buildings as requiring an essential safeguard, although the tenant sought damages rather than permission to do those works. In March, he authorised the removal and disposal of cattle without recording equivalent consideration of ownership or reversibility. The buildings remained at Powhillon; the herd was dispersed.
The connection reached beyond property in the abstract. The tenant's case was that WWT had allowed the agricultural fabric of Powhillon to deteriorate. Howdle's petition then relied in part upon inadequate shelter and conditions within the same holding. Fletcher had excluded the separately itemised monetary damages head measured by remedial costs without proof of the defects or loss; five months later he authorised removal of the cattle kept at the holding before the criminal case was tried. Daniel's account is that he reminded Fletcher of the October judgment at the warrant hearing. Fletcher's March interlocutor did not answer the conflict.
The warrant was used as authority not only to hold the herd but to dismantle it. On 22 April 1997 Procurator Fiscal Depute R. T. Morrison wrote to Daniel. An intermediate diet was fixed for 4 June and trial for 19 and 20 June. The Crown was still identifying amendments required to the dates in two charges. Yet Morrison said that cattle with the necessary records were already being sold.
Morrison said undocumented animals could not be sold and could only be destroyed under the BSE regulations. He asked whether Daniel objected to their destruction and requested any Cattle Control Documents without delay. He wrote that the veterinarians had power to sell under Fletcher's warrant and that net proceeds would be returned to Daniel after veterinary, feeding and other expenses.
That letter fixes the chronology in the Crown's own words. The prosecution had not reached trial. The charges were still being adjusted. The herd was already being converted into sale proceeds or exposed to destruction. Morrison's statement describes how officials were using the warrant; it does not identify the substantive legal power which permitted Fletcher to grant it.
The loss was evidential as well as agricultural. Once animals were sold or destroyed, they could not be examined by a defence veterinarian, seen by the trial court or returned after an acquittal. The state acted irreversibly upon the allegation before assuming the burden of proving it.
Daniel continued asking what had happened to the animals. On 13 May he telephoned the Animal Health Office seeking a welfare report. In his reply of 15 May, Dr M. H. Lamont recorded the Ministry's first complete numerical account.
Lamont said “we removed” 191 cattle on 21 and 22 March and that two calves found afterwards brought the total to 193. By 15 May, three cows and eleven young animals had died or been “humanely destroyed”; the letter did not separate those outcomes. Seventy-seven cattle had been sold. One hundred and two remained in official care. Sale proceeds had been forwarded to the SSPCA, which was using them to meet treatment and management costs.
Lamont did not identify the fourteen animals, distinguish death from destruction animal by animal, record their clinical condition or explain the authority for each decision. Once the herd had been taken, responsibility for its continuing welfare, identification, treatment and disposal lay with the Ministry veterinary service and the SSPCA. Their custody requires the same animal-by-animal record which officials had demanded from Powhillon.
Kerr had recorded deficient identification and movement records before Howdle sought the whole-herd warrant. The difficulty was therefore foreseeable. Once officials removed the animals for sale or other disposal, they needed Daniel's knowledge to create the records without which much of the herd could not lawfully be traded.
On 19 May Lamont asked for dates of birth, dams and other information needed for Cattle Control Documents and cattle passports. He believed only two of the 48 remaining younger cattle had been registered. Two carried numbers but were not registered, and 44 were untagged. At least one record was subsequently completed: a Cattle Control Document issued on 28 May for D1850/00058 named “Mr R Hill & Co” at Powhillon and stated that it had to accompany the animal when traded.
The present records do not connect any one of the fourteen deaths or destructions directly to missing documentation, and they do not establish that a healthy animal was destroyed for that reason. They establish a narrower but important fact: officials knew about the record deficiencies before removal, took the entire herd anyway, and then encountered the foreseeable obstacle while attempting permanent disposal. The storage, veterinary, sale, slaughter and destruction records must identify what happened to every animal and why.
Ownership was not an issue invented after the removal. In an October 1993 notice, WWT's own solicitors alleged that the proprietary interest in the livestock was vested in the farming partnership. That was WWT's position in a disputed notice, not a judicial title ruling, but it shows that the landlord had treated the cattle as partnership property years before Howdle's petition.
The petition likewise said that Daniel was a partner and that Hill & Company farmed Powhillon. Morrison later said any net sale proceeds would be returned to Daniel. The May Cattle Control Document was issued to R Hill & Co. Those records do not by themselves settle every question of legal title. Their differences made a prior determination more necessary, not less.
Fletcher made none. The warrant operated upon the whole herd without deciding whether the animals belonged to Daniel personally, to the partnership, to Mrs Hill or to some combination of interests. Whatever the final answer to title, the persons whose property and livelihood were being extinguished received no ownership hearing before the cattle were dispersed.
Daniel was not convicted in March. On 17 November 1997, after the herd had gone, guilty pleas were tendered on his behalf to five charges and not-guilty pleas to the others were accepted by Howdle. No witness gave evidence. Daniel disputes that he authorised those pleas; that issue and the surviving court records are examined in Malicious Conviction.
At sentence Howdle referred to the statutory power to deprive a convicted person of ownership. Temporary Sheriff Jamie Gilmour's report records Howdle saying that such an order was now “academic”: the cattle had already died, been destroyed or been sold, and the SSPCA held the proceeds. That statement exposed the sequence. The statute provided deprivation after conviction, but irreversible deprivation had already been completed under the March warrant.
A conviction in November could not retrospectively confer a power which had to exist when Fletcher acted in March. Nor did Gilmour decide whether WWT was responsible for the condition of the fixed equipment. He acknowledged that the landlord might have failed in its obligations and that Mrs Hill might have a legitimate claim, but left those questions to the civil process. That process—the Damages Arbitration—never heard the substantive proof.
The relationship between the farm conditions, the charges which were abandoned and the landlord evidence which was never tested is examined in Illicit Conviction. Neither the pleas nor the sentence adjudicated the source or validity of Fletcher's pre-trial disposal power.
By November there was no herd left for a trial to examine. No defence veterinarian could assess the animals in their original condition; no court could compare individual cattle with the sweeping description used to obtain the warrant; and an acquittal could not restore the enterprise. Howdle's statement that statutory deprivation had become “academic” was accurate only because the state had already achieved before trial the deprivation which the statute placed after conviction.
Powhillon contends that a full evidential trial would have exposed both the legality of the removal and the unresolved evidence about WWT's buildings, drainage, fencing, water supply, grazing and goose damage. The surviving papers do not contain an admission that charges or pleas were selected to prevent that exposure. They do establish the result: the cattle were gone, no witness was heard, the wider charges were not tried, and the landlord-and-tenant evidence was left to an arbitration which never reached substantive proof.
Daniel's objection did not have to wait until the criminal trial. The recognised general rule was that summary proceedings should not ordinarily be interrupted by suspension. But Morton v McLeod 1982 SLT 187 identified an exception for an incidental warrant which did not form part of the criminal case. Such a warrant could be challenged and suspended immediately. The High Court restated that exception in McWilliam v Harvie.
The Powhillon account is that Daniel told his solicitor, Gary McAteer of Beltrami & Co, that the removal was unlawful, but was advised that nothing could be done until after trial. No immediate suspension was obtained. After the later pleas, the appeal lodged on Daniel's behalf challenged sentence rather than Fletcher's warrant or the conviction. The distinction had irreversible consequences: by the time of any trial or appeal, the herd and the evidence it embodied had gone.
An immediate application would not automatically have succeeded. It would, however, have required the High Court to confront the warrant while its operation could still be stopped. That was the legal route by which the missing power, the breadth of Howdle's crave and the absence of an ownership determination could have been tested before sale and destruction made the dispute irreversible.
Quinn v Cunningham 1956 JC 22 concerned a complaint which failed to libel a crime known to Scots law. Lord Justice-General Clyde accepted that an objection to relevancy would ordinarily be barred if not taken at the proper time, but recognised the exception where the complaint was fundamentally null. The reason was stated without qualification: “This Court will not allow a conviction to stand for what is no crime under the law of Scotland.”
The later decision in HM Advocate v Harris 1993 JC 150 changed Quinn's substantive treatment of reckless injury. The principle relied upon here is different: lateness cannot create a crime or cure a proceeding which is fundamentally null. Powhillon does not rely on Quinn to deny that the 1912 Act made cruelty a statutory crime. It relies upon the same principle of legal competence: if the warrant contained a form of permanent pre-trial disposal which no law authorised, passage of time could not manufacture that power.
The same answer was available to an assertion that Daniel had acquiesced. In Cantone Ltd v McGlennan 2000 SCCR 347, the advocate depute accepted that, if statutory procedure had been breached in the manner alleged, the result would be a fundamental nullity and “there would be no question of acquiescence.” Neither authority decides the facts of Powhillon. Together they explain why “too late” and “acquiesced” were not answers to an allegation that the state had acted without the power required by law.
The correct procedure was clarified again in AS v HM Advocate [2016] HCJAC 126. Lady Dorrian distinguished a dispute about later police conduct from a direct challenge to the judicial office-holder's act in granting a warrant. Where the challenge was that the warrant was incompetent or that the information could not justify its grant, she said “the appropriate course to adopt is a bill of suspension.”
That was precisely the character of Powhillon's challenge. It did not depend upon denying that Fletcher signed the interlocutor or that officials acted under it. It attacked the legal competence of the order he signed: section 134 supplied procedure only; the 1912 Act withheld deprivation until conviction; Shepherd located animal cruelty in statute; and no identified common-law rule authorised permanent disposal of the entire herd before proof.
When the allegation was taken to the police in 2002, Howdle referred it to the Crown Office. Deputy Crown Agent Bill Gilchrist later expressed the professional opinion that no member of COPFS had committed a crime. That opinion did not identify the substantive rule authorising pre-trial sale, slaughter or destruction. The family continued to pursue the exceptional remedies available in the High Court.
In reasons issued on 27 April 2017, recording the court's decision of 26 April, Lord Turnbull refused to grant warrant for service of a petition to the nobile officium. He accepted that Howdle's petition had been presented “at common law”, called Fletcher's warrant ex facie valid and said there was no basis for the claim that a sheriff's common-law powers were restricted by the 1912 Act.
Turnbull relied upon the interlocutor to reject Daniel's account that the hearing had been adjourned: it recorded that Fletcher heard the prosecutor and Daniel in reply before granting the warrant. That resolved what the face of the interlocutor said. It did not resolve the jurisdictional question. A hearing, even one at which both sides speak, cannot give a sheriff a power which neither statute nor common law supplies.
Nor did ex facie validity answer the challenge. It describes how the warrant appeared on its face. Powhillon was challenging the authority behind the face of the document. Turnbull did not identify the common-law rule permitting permanent whole-herd disposal, state its threshold or limits, or reconcile it with Shepherd v Menzies and the 1912 Act's deliberate separation of emergency destruction, temporary custody and post-conviction deprivation. The petition was stopped before service without the missing power being defended by the Crown or determined after an opposed hearing.
After AS v HM Advocate had identified a Bill of Suspension as the proper means of attacking the judicial act which granted a warrant, Daniel used that procedure. He lodged a Bill of Suspension on 6 August 2019. On 29 August Turnbull again refused to grant warrant for service.
The 2019 reasons recited the sentence appeal dismissed in 1998, a 2003 petition to the nobile officium and a 2004 Bill which had sought suspension of the conviction and sentence. Turnbull said that there were no proceedings to suspend, that restoration of “the appeal” was incompetent and had already been ruled upon, and that Daniel could apply to the Scottish Criminal Cases Review Commission if he alleged a miscarriage of justice.
That chronology did not identify any earlier decision adjudicating the source of Fletcher's power to dispose of the cattle before trial. An appeal against sentence, a challenge to conviction and a challenge to the competence of an earlier property warrant are not interchangeable simply because they arise from the same prosecution. The 2019 refusal did not engage with AS, determine the warrant under the 1912 Act or explain why a Bill of Suspension could not test the very judicial act which AS said that procedure was designed to challenge.
The consequence cannot be softened by describing these as procedural rulings. A refusal of first order prevented service upon the respondent and prevented the challenge from reaching an adversarial hearing. Turnbull did that in 2017 and again in 2019. On each occasion the warrant survived, not because the Crown had demonstrated a power of permanent pre-trial disposal, but because the challenge was not allowed to proceed.
The High Court of Justiciary is Scotland's supreme criminal court. When it sits as an appeal court, its decisions are ordinarily final. There is no ordinary appeal to the UK Supreme Court on the merits of Scottish criminal proceedings; only defined devolution, compatibility and related constitutional issues can reach it.
Turnbull's reference to the Scottish Criminal Cases Review Commission did not provide another appeal as of right. The Commission investigates applications and decides whether a case should be referred back to the High Court. It does not itself invalidate a warrant, and a reference depends upon its independent statutory decision.
Finality can protect a judicial determination; it cannot substitute for one. At Powhillon it operated after the decisive issue had repeatedly escaped determination. Turnbull's refusals did not establish that common law authorised the result. They made Fletcher's unexplained exercise of that alleged power practically final while leaving the legal source unnamed.
The criticism of Turnbull is therefore specific and evidenced. Faced first with a petition to the nobile officium and then with the procedure which AS identified for a direct warrant challenge, he refused service on both. He relied upon facial validity, competency and earlier proceedings, but did not permit an opposed hearing at which the Crown had to identify and defend the asserted power. The direct judicial routes were closed without the question at their centre being answered.
Howdle's petition records the order he wanted: entry to Powhillon, removal of every animal and authority for veterinary officers to sell, slaughter or destroy them. Fletcher's interlocutor records that Daniel opposed the application and that the sheriff nevertheless granted the warrant as craved. Morrison's April letter records sales beginning before trial. Lamont's May account records deaths, destruction, sales and the use of proceeds to meet official costs.
Those records establish who asked, who authorised, what was done and when it happened. They also expose what was never decided. The petition did not identify the substantive source of permanent disposal power. The interlocutor gave no reasons. Ownership was not determined. No animal-by-animal necessity was established before the whole herd was taken. No criminal evidence was heard before disposal began.
The later decisions complete the documentary sequence without filling that gap. Turnbull recorded that the petition had been brought at common law and that the warrant was ex facie valid. His decisions record the refusal of two later challenges before service. They do not identify the common-law rule which made Fletcher's order competent. The distinction emerges from the Powhillon case itself: the archive proves that state power was exercised; it does not prove that the power exercised existed in law.
In 1997 Scots law protected cattle through statutory welfare duties while treating the animals as property. Turnbull's position carries an extraordinary further implication: quite apart from those statutes, the common law contained a protective judicial power strong enough to override possession and ownership before conviction and to authorise irreversible disposal of the animals.
If a common-law power permitted permanent pre-trial disposal of cattle owned by another, its source and limits would need to be identified. What circumstances activated it? What distinguished temporary protection from sale or slaughter? How were the interests of owners and other claimants to be addressed? Neither Fletcher’s interlocutor nor the later decisions answered those questions.
No identified appellate judgment in these proceedings articulated a separate common-law right belonging to the cattle or specified a power of permanent pre-trial disposal. The orders record the exercise of the claimed authority, not the rule defining its extent.
The removal did not end with the welfare case. On 26 May 1997 agricultural officer A. J. Robertson recorded severe goose damage, a reduction of more than half in carrying capacity, and dilapidated buildings, fencing and drainage. He said those conditions “will have contributed to some of the welfare problems” for which Daniel was being prosecuted. His report attributed part of those problems to the agricultural and physical condition of the holding rather than treating them solely as the choices of one stockman.
After the cattle were gone, normal grazing ceased and the sward changed. Later goose-licence decisions referred to the continued absence of agricultural activity. In 1998 WWT sought £10,000 caution in the Damages Arbitration and relied upon the fact that Powhillon had no stock, no agricultural enterprise and no income. The state-created loss of the herd had become a condition used in other proceedings.
The tenant was then ejected in June 1999 while the arbitration over responsibility for the farm's condition was still alive. The connected histories are set out in the Shooting Trial, Damages Arbitration and Evictions. The cattle warrant was not an isolated episode. Its consequence became part of the factual foundation for what followed.
Powhillon alleges that removing the herd advanced a broader course leading to the end of R Hill & Co’s agricultural occupation. The recorded consequences connect the proceedings: the grazing and fixed equipment were already disputed; the herd was removed before trial; the absence of stock and income was later relied upon in licensing and the arbitration; and the tenant was ejected before the damages proof. The correspondence and orders establish that sequence without determining whether each participant intended the same outcome.
The professional record establishes the route taken. Government veterinarians already possessed powers of entry and inspection. Parliament had provided animal-specific emergency action, temporary custody during proceedings and deprivation after conviction. Howdle sought a different result: immediate possession of the whole productive herd with authority to sell, slaughter or destroy it. Fletcher granted that result before proof, conviction or ownership determination.
Powhillon alleges that the legal professionals did not discover an overlooked power; they displaced the statutory safeguards because those safeguards stood between them and the result they intended to achieve. The inference rests upon the choice of common law, the breadth of the petition, the preparation for immediate execution, the failure to provide Daniel with the ordered petition, the absence of reasons, the disposal before trial and the later refusals to identify the substantive power. The purpose is not expressly admitted; it is inferred from the recorded acts and their sequence.
Powhillon's corruption allegation rests upon the use of public and judicial power to secure an irreversible outcome which the identified law did not authorise at that stage, the bypassing of safeguards protecting proof and property, and the later preservation of that outcome without substantive determination of its legal foundation. Individual veterinary observations stand or fall upon their own evidence; they could not enlarge the powers available to Howdle and Fletcher. Coordination, where alleged, must be proved from communication and conduct rather than inferred from an adverse outcome alone.
The state took the farm's working herd before proving a charge. It did so under a petition which sought permanent disposal from the beginning. It determined neither ownership nor the responsibility of the conservation landlord for the conditions in which the cattle were kept. It then sold, destroyed or otherwise dispersed the animals until the statutory power to deprive after conviction could be called “academic”.
The later guilty pleas could not confer power retrospectively. Gilchrist's opinion could not do so. Describing the petition as common law and the warrant as ex facie valid could not do so without identifying the common-law rule. A procedural refusal of a later challenge could not do so either.
If the taking and permanent disposal were lawful, the authority should be capable of being named. Hume's Commentaries treated domestic animals as property capable of being stolen. Jamieson v Dow required criminal illegality to be grounded in an offence recognised by law. Section 134 did not supply a power of disposal. Section 11's police apprehension never occurred, and the statutory complaint was served only after removal had begun. The 1912 Act placed deprivation after conviction and temporary protection before it. Shepherd v Menzies said animal cruelty was created by statute, not common law. Hay v HM Advocate described the common-law warrant as a safeguarded means of search and examination, not disposal.
McMillan and McWilliam show that Fletcher was exercising an administrative warrant function, not determining guilt as a criminal court. Morton shows that the incidental warrant could have been challenged immediately. Quinn and Cantone explain why fundamental nullity was not cured by lateness or acquiescence. AS identified a Bill of Suspension as the route for challenging the judicial act. Turnbull then refused first order in 2017 and again in 2019 without allowing that central question to be heard.
Powhillon calls the cattle stolen because Howdle asked the state to take and permanently dismantle R Hill & Co's herd before trial, Fletcher authorised it, and every later route preserved the result without identifying the law that permitted it. The procedure is recorded. The disappearance of the herd is recorded. The missing legal power remains missing.
Nullum crimen sine lege. Nulla poena sine lege.
I got sent here via a link, wish I had read it 2 years as I am currently in a massive battle with police Scotland, the p.s.d. and c.o.p.f.s
We were literally frauded by rank members of loreburn st and since then we have had our eyes opened as to the level of corruption in bucleuch st court and beyond.
We personally have had commander s stiff removed (whether temporarily or permanently we won't know until the 2 year investigation concludes) Every member of the rotary club, along with stiff have colluded (our words) to destroy business in Dumfries and you just need to see small business opened and shut in 8 weeks to bring in Julian cowie (ex c.f.o. council). Look at bigger business like comlogon castle, you'll find YOUR aforementioned accused and others along the way.
Hopefully we'll meet along the road
Animal Rights Farming
Wader Habitat Destruction
Gary McAteer Beltrami
"doesn't contain antibodies"
Procurator Fiscal
Sheriff
