Background
David Howdle petitioned Dumfries Sheriff Court on Tuesday, 18 March 1997 to grant warrant permitting the entire herd of cattle from Powhillon farm to be removed and sold. The application was raised under Section 134 of the Criminal Procedure (Scotland) Act 1995, 'Incidental Application' and was sought prior to any proceedings by complaint.
An incidental application as the name suggests is where the Prosecutor, petitions the court to allow them to search or apprehend, something or someone which might be of importance but which is not essential to a complaint or possible complaint. The 'Incidental Application' process is also a means of obtaining the aforementioned rights, unopposed, without the accused knowing the details of the crime they are alleged to have committed.
The Criminal Procedure (Scotland) Act 1995 (c. 46) states the following;
| Incidental applications. | 134. —(1) This section applies to any application to a court for any warrant or order of court— |
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(2) An application to which this section applies may be made by petition at the instance of the prosecutor in the form prescribed by Act of Adjournal. |
In his petition, the fiscal alleged that he had received credible information that one of the partners (Daniel Quinn) of R Hill & Co which was the firm that farmed Powhillon had solely failed to tend for, feed, obtain and provide veterinary services and provide adequate and sufficient shelter for the cattle. No-one had been charged at the time of the initial hearing therefore Procurator Fiscal David Howdle was asking Sheriff Fletcher to take him at his word and allow him to remove and sell the entire herd of cattle from Powhillon farm even though the information received may be wrong and that the accused might not be subsequently charged or prosecuted thereafter.
The complaint against Danny wasn't served upon him until 22 March 1997, four days after the fiscal petitioned the court for warrant. The complainant in the end was Procurator Fiscal David Howdle himself.
Under the terms of the Criminal Procedure (Scotland) Act 1995, Section 134 this meant that the decision lay with the Sheriff who had to determine whether or not the court had the power to grant warrant even though no subsequent proceedings by complaint may follow thereon.
Sheriff Fletcher rejected the application on 18 March 1997 and called for a further hearing on Thursday, 20 March 1997. The Sheriff ordered that a copy of the petition be intimated to Danny and requested that he be instructed to attend the court on the aforementioned date. At 17:30, on Wednesday, 19 March 1997 a sergeant from Dumfries and Galloway Constabulary visited the farm and told Danny that he had to attend Dumfries Sheriff Court at 09:30 the following day. No petition was presented to Danny and the only information the sergeant could give him was that Sheriff Fletcher had ordered his attendance.
Danny appeared before Sheriff Fletcher on 20 March 1997. Also in attendance was Deputy Procurator Fiscal Bob Morrison. The petition was read out in court after which Danny flew off the handle and unleashed a tirade of abuse at Sheriff Fletcher. Danny couldn’t believe that (1) they were going to remove the entire herd of cattle for the reasons given, and (2) they regarded him as being solely responsible considering the facts that the cattle were owned by R Hill & Co and that farming a tenanted holding is an ongoing working relationship between tenant and landlord. Danny denied that he had ever claimed to be solely responsible for farming Powhillon and for the welfare of the animals. Danny also reminded Sheriff Fletcher of his judgement on 3 October 1996 and the relevance and implications it had had with regard to the present action.
After listening to both parties the Sheriff ended the hearing and Danny was issued with a copy of the petition signed by Deputy Procurator Fiscal Bob Morrison.
On Friday, 21 March 1997 members of the Scottish Office Ministry Veterinary Service and Dumfries & Galloway Constabulary turned up with several Quad bikes and 12 animal haulage lorries’ and proceeded to remove all cattle from Powhillon Farm. The Police officers held back R Hill & Co members claiming that the authorities had a signed warrant to remove and sell all of the cattle.
A warrant was never served on R Hill & Co or indeed Danny. All that had been received was the copy of the petition that Danny was given by Deputy Procurator Fiscal Bob Morrison at the end of the hearing the previous day. That document however was not a warrant because it wasn’t signed by a Sheriff.
Sheriff's note
Sheriff Fletcher never granted warrant as craved. On 20 March 1997, Sheriff Fletcher granted a motion for adjournment.
Sheriff Fletcher in summising a decision he made in response to a stated case for the damages arbitration refers to the hearing on 20 March 1997 and states that “ One example of what I mean arose during a short hearing in relation to the criminal case where Mr. Quinn appeared and asked for an adjournment. He had a number of valid reasons and the motion was granted ….. .”
Although Sheriff Fletcher does not specify the date of the hearing there was only one court appearance involving matters relating to the animal cruelty case that Danny attended and spoke in the manner described by Sheriff Fletcher. That appearance was on 20 March 1997. The authorities have tried to twist and construe the comments by relating them to two appearances Danny had before Sheriff Fletcher during the actual criminal trial. Court records and procedures however don’t support their interpretation because throughout trial proceedings Danny only spoke whilst tendering his plea. Secondly, the two appearances in question don’t substantiate the fact that Sheriff Fletcher granted an adjournment on the motion from Danny. Only the appearance dated 16 April 1997 refers to an adjournment but that was at the instance of the Court alone, as is often the case at the first diet of a Summary trial.
The truth is Sheriff Fletcher never granted the warrant and the authorities are trying to cover it up. Even just the notion of a Sheriff granting a warrant to remove someone’s property who hasn’t been convicted and who might never be convicted of an offence doesn’t ring true. It is incomprehensible that Sheriff Fletcher would grant such an action that defies the basic principle of Scottish Justice that you are innocent until proven guilty. In fact the Protection of Animals (Scotland) Act 1912, Section 3 clearly states that the court can only deprive a person of ownership if found guilty and if it is proven that an animal would be subject to further cruelty if left in the care of the guilty person. The court therefore did not have the power to grant warrant as craved.
Miraculously or rather perversely the authorities have recently produced a copy of what they are alleging to be the warrant but can’t produce the original. They also don’t deny that neither R Hill & Co nor Daniel Quinn had it served upon them the day the cattle were removed. Under normal circumstances failure to serve the warrant would mean that the action is null and void however in our case they are refusing to accept that there was any wrong doing primarily because they secured a guilty conviction at a later date. If you read this story in conjunction with both the disposal of the case and the charges against Danny, you will start to understand how malicious and calculated the Procurator Fiscal’s conduct was from start to finish.
R Hill & Co have pursued this matter for years but we have had doors slammed in our faces and been bounced from Crown Office to Dumfries Sheriff Court to Dumfries and Galloway Constabulary to Local Procurator Fiscal’s office. Basically no-one is willing to prosecute the prosecutor in Scotland.
We got close once on 2 November 2002, when Inspector Alan McCulloch accepted a written statement and documented evidence from R Hill & Co alleging that Procurator Fiscal, David Howdle had wrongfully and illegally removed R Hill & Co’s cattle from Powhillon farm. By 18 November 2002, David Howdle reported himself to Deputy Crown Agent, Bill Gilchrist and the police investigation was stopped.
The police claimed they couldn’t investigate any further because the Deputy Crown Agent was reviewing the allegation. Bill Gilchrist was asked to hand the matter back to the police but refused to do so. On 21 March 2003, R Hill & Co received a response from him which stated that in his 'professional opinion there was absolutely no substance to the allegation that any member of the Crown Office and Procurator Fiscal Service committed a crime in connection with the events relating to the cattle'.
Almost a year earlier R Hill & Co had tried to get the Crown Office to investigate the matter but they refused stating that criminal conduct was a matter for the police to investigate.
We have asked for an investigation because only Sheriff Fletcher can truly answer the question as to whether or not he granted the warrant. The actions of the authorities would suggest that he didn’t and we therefore have to live with the fact that David Howdle is a deceitful, lying, thieving b@$£@╔& and in accordance with Scottish Justice, Bill Gilchrist is allowed to cover up for him.
