On 17 November 1997 Daniel Quinn went to Dumfries Sheriff Court for the trial of allegations arising from the same animal-welfare case already used to remove R Hill & Co's entire cattle herd. Two weeks earlier he had appeared with his solicitor, Gary McAteer, had been asked to confirm his existing plea and had again pleaded not guilty. He expected the Crown allegations, the Ministry veterinary evidence and the evidence available to the defence to be tested in court.

By then the cattle were gone. Procurator Fiscal David Howdle's March petition had sought authority not only to remove every animal but to allow Government veterinarians to destroy, slaughter or sell them as they thought fit. Sheriff Michael Fletcher granted the warrant as craved. The cattle were removed on 21 and 22 March. Sales began in April and the last recorded stock was sold in June; other animals had died or been destroyed. Months before the trial, the herd had ceased to exist as a body of physical evidence available for independent examination.

The trial did not take place. Daniel's account is that he was outside the courtroom with the witnesses he expected to call when McAteer tendered guilty pleas on his behalf to five charges. Howdle accepted not-guilty pleas to the remainder. No Crown witness gave evidence. No defence witness was called. Temporary Sheriff Jamie Gilmour convicted Daniel upon the pleas and heard the Crown's account before turning to mitigation and sentence.

Daniel’s account is direct: he attended court for trial, waited outside the courtroom with the witnesses he had brought, did not instruct McAteer to admit guilt and was brought in only after guilty pleas had been tendered on his behalf. He says he neither entered nor personally confirmed those pleas. The convictions and sentence are recorded outcomes; the disputed event is whether Daniel authorised or personally adopted the pleas by which his not-guilty position was replaced.

A case prepared for trial

The criminal complaint contained nine numbered charges, with charge 5 divided into seven separate allegations. Charge 4 described the heifer for whom Kerr recorded Daniel requesting euthanasia on 27 February. The complaint alleged destruction that same day; R Hill & Co recalls arranging euthanasia through the knackery afterward. No proof was taken on this charge: the Crown accepted a not-guilty plea. The case moved through Dumfries Sheriff Court for almost eight months, with minutes recording Daniel's position at each stage.

The authenticated minutes record Daniel personally maintaining not-guilty pleas, including on 2 September and 3 November 1997. On both occasions the clerk recorded that he was asked to confirm his plea. The last such record before the trial diet therefore shows him continuing to contest the charges. It does not establish what happened when the pleas were changed on 17 November.

The herd was disposed of before guilt was determined

The removal was not followed by temporary custody while the criminal case was decided. The March petition fixes the sequence. Before a single animal was taken, Howdle asked Fletcher to authorise the destruction, slaughter or sale of the cattle, with the expenses deducted from the proceeds. Permanent disposal was therefore planned in advance; it was not an unforeseen consequence of temporary protective custody. Fletcher's interlocutor authorised that course before any conviction and before the evidence supporting the allegations had been tested.

The timetable was rapid. The Ministry veterinarians and SSPCA removed the cattle on 21 and 22 March 1997. The surviving records show an initial sale on 23 April and the last recorded sale on 18 June. Gilmour's later report recorded that the animals had either died, been destroyed or been sold. By the time the trial diet called in November, no Powhillon herd remained for the defence veterinarians or the court to examine. The animals could no longer be assessed in the condition alleged by the Crown in March.

Powhillon's legal position, set out in Cattle Stolen, is that neither the common law nor the statutory provisions relied upon supplied a substantive power to deprive the owner of the cattle and dispose of them permanently before conviction. The warrant did not preserve the herd pending trial. It achieved the irreversible result first and left criminal liability to be decided afterwards.

17 November 1997 — the trial becomes a plea disposal

Gilmour later opened his 19 December 1997 report to the High Court with the decisive event:

“Pleas of guilty ... were tendered on behalf of the Appellant.”

Gilmour's report describes the pleas as tendered on Daniel's behalf and does not mention Daniel personally entering or confirming them. Howdle then narrated the Crown's allegations, McAteer addressed the court in mitigation, and sentence was deferred. No witnesses were examined or cross-examined on the surviving charges.

Gilmour's original signed report identifies guilty pleas to charges 2, 5(f), 7, 8 and 9, and not-guilty pleas to charges 1, 3, 4, 5 (apart from paragraph (f)) and 6. The 8 December sentencing minute records the fines on the five charges to which guilty pleas had been accepted.

The change was decisive. Just two weeks earlier, Daniel had personally maintained his not-guilty plea. On 17 November, guilty pleas to five charges were accepted and the case ended without the contested proof for which the witnesses had attended. The Crown's allegations were no longer put to evidential examination by the court. The herd had already been permanently disposed of.

Under rule 18.1 of the Criminal Procedure Rules 1996, an accused present in court was ordinarily required to plead personally, whether represented or not; an accepted guilty plea had to be recorded and signed by the judge or clerk. Rule 18.4 permitted the record to be partly handwritten and the minute to appear on the complaint itself. The hand-annotated criminal complaint records the guilty pleas tendered on 17 November and the adjournment to 8 December. It contains no entry recording Daniel personally pleading guilty or confirming those pleas.

By contrast, the clerk's minutes of 2 September and 3 November expressly record Daniel being asked to confirm his not-guilty pleas and personally maintaining them.

Daniel's account of waiting outside the courtroom

Daniel says he attended for trial with witnesses and waited outside the courtroom while McAteer tendered guilty pleas on his behalf; he says he was brought in afterwards and had not authorised those pleas. The distinction is between being present at the court building and being present in the courtroom when the pleas changed. His account is specific enough to have been tested with the witnesses waiting with him. The surviving later decisions do not identify a hearing in which they were asked about it. Section 153(1) of the Criminal Procedure (Scotland) Act 1995 provided:

“No part of a trial shall take place outwith the presence of the accused.”

Section 153 preserved the separate rules in section 150 for an accused who failed to appear, and subsection (2) permitted a court to remove an accused whose misconduct made a proper trial impossible. No identified record says Daniel failed to appear, misconducted himself, was ordered out or voluntarily absented himself. His account is that he attended for trial and was kept outside with the witnesses until the decisive pleas had already been entered.

The importance of the rule was not merely formal. Lord Rodger later explained that Scots law required the accused's personal presence “in every step, from first to last” of the trial so that the accused could protect his own interests, present his evidence and answer what arose during the proceedings.

The High Court's 2003 opinion describes Daniel as present at the summary trial diet and the pleas as tendered by his solicitor on his behalf. It does not establish his location at the moment they were tendered or state that he personally confirmed them. The handwritten entries on the complaint record the change of pleas but not a personal confirmation. In the earlier clerk's minutes, the court had expressly recorded Daniel's personal not-guilty pleas.

Daniel's account raises the requirement that a trial take place in the accused's presence and, separately, the question whether McAteer was instructed to change the pleas. Neither question can be answered simply from the fact that guilty pleas were accepted. A factual examination could have considered the complaint's plea entries, their authentication, Daniel's evidence, McAteer's instructions and the witnesses who accompanied Daniel. No identified later judgment determines that contested factual account after hearing such evidence.

The evidence that was never heard

The surviving record identifies a contrary veterinary assessment which was raised but never tested at an evidential trial. At the sentencing diet on 8 December, Gilmour recorded McAteer telling the court that Daniel's veterinary surgeon was “not wholly impressed” by the Crown account: the Ministry veterinarian had provided the only expert opinion about the removed animals and no opportunity had been given to determine a contrary view.

Volostrum and the calf-feeding charge

One of the five recorded convictions concerned charge 9. The original complaint first alleged inadequate food and prompt veterinary care of a Simmental-cross “heifer”, and breeding while undersized. It then described the emaciated animal as “said Simmental cross cow” but concluded with an allegation of suffering to “said Simmental cross heifer calf”. This shifting description does not necessarily indicate three separate animals: the charge appears to pass from the mother to her calf without consistently identifying the subject. Gilmour’s subsequent account focused on the calf’s care. When the defence explained that Daniel had fed the calf Volac Volostrum, a commercially manufactured colostrum substitute, Procurator Fiscal David Howdle intervened. Temporary Sheriff Jamie Gilmour's signed report records Howdle stating, for the purpose of clarification, that Volostrum did not contain antibodies which might be required by a calf. The intervention challenged the explanation offered on Daniel's behalf for the calf's care.

The same report records the Crown’s account that Daniel had administered Depomycin, a prescription antibiotic, to the calf and had not called out a veterinary surgeon for it. R Hill & Co states that Firth Veterinary had trained Daniel to give prescribed antibiotics and supplied these medicines because BVD had affected large numbers of calves. That arrangement is relevant to the treatment given, but does not by itself answer whether a veterinary visit was sought for this particular calf.

Immunoglobulins are antibodies. Their role in providing passive immunity to newborn calves is fundamental to the use of colostrum and to the purpose of commercial colostrum substitutes. Gilmour recorded Howdle's statement in his account of the proceedings. The report identifies no product analysis or expert evidence concerning the antibody composition of Volostrum.

By November 1997 the Powhillon herd had already been removed and dispersed under the warrant granted in March. The animals were no longer available for examination in their original circumstances. The surviving disposal records do not identify what became of the particular calf. Gilmour's report identifies no immunological examination establishing that Volostrum had failed to provide the protection required by that animal.

On 23 July 2003, Volac Technical Director Conor Rudden confirmed in writing that Volostrum contained immunoglobulin. His letter identified a product specification dated 22 February 1993, a certificate of analysis dated 22 January 1997 and a certificate of approval dated 23 January 1997.

A complaint alleging that Howdle had misled the court was referred to the Crown Office following correspondence with Chief Inspector Kate Thomson. In his response of 10 October 2003, Deputy Crown Agent Bill Gilchrist acknowledged Volac's confirmation but interpreted Howdle's words as concerning the particular antibodies a calf might require. He referred to a veterinary report about maternal colostrum and the risk of enteritis. His letter identified no product-specific analysis establishing that Volostrum lacked those antibodies, or veterinary advice supporting Howdle's assertion about the product.

Gilchrist concluded that no further investigation was appropriate. His response did not identify any enquiry establishing the basis for Howdle's statement or explain how he assessed its significance in the proceedings. The statement, the manufacturer's correspondence and the Crown Office response are examined in the separate Volac Volostrum account. At the sentencing diet on 8 December, McAteer also raised the defence's disagreement with the Crown narrative.

Gilmour replied that any dispute with the Crown narrative should have been raised on 17 November, when a proof in mitigation could have been considered. McAteer's response, as Gilmour recorded it, was that Daniel “required to accept the narrative” relating to the five charges. The solicitor whose authority to enter the pleas is disputed was therefore also the person who told the court that Daniel had to accept the factual account those pleas had allowed the Crown to present.

The competing account was never resolved. Firth Veterinary Services did not give evidence. The Ministry veterinarians were not cross-examined. Volac's product evidence was not before the court. The court made no findings after hearing both sides. The convictions arose because guilty pleas were tendered and accepted.

Why an evidential trial mattered

By the trial diet, the allegations had already been used to obtain and execute a warrant for the removal and permanent disposal of the partnership's entire herd. A contested proof would have required the Crown to establish the charges through evidence and would have allowed the defence to challenge that evidence, including the veterinary accounts. Because the guilty pleas were accepted, that examination did not occur.

Had the charges proceeded to proof and resulted in acquittal, the cattle could not have been restored: the irreversible disposal was already complete. An acquittal would not, by itself, have established that Fletcher's earlier warrant was unlawful. It would, however, have left the disposal of the herd standing alongside an outcome in which the criminal allegations were not proved.

The pleas meant Howdle was not required to prove the surviving charges through witnesses, the defence veterinary evidence was not heard and the Crown's account was not tested by cross-examination. The later convictions did not retrospectively determine whether the March warrant had substantive legal authority for permanent disposal before trial. That distinct question is examined in Cattle Stolen.

Sentence after the herd had gone

At sentence, Howdle reminded the court that section 3 of the Protection of Animals (Scotland) Act 1912 permitted the court, following conviction, to deprive an accused person of ownership of an animal. Gilmour's report then records Howdle saying:

“This was now academic since all the livestock had been removed from Powhillon Farm.”

Howdle said the animals had died, been destroyed or been sold and that the SSPCA held the sale proceeds on Daniel's behalf. The statutory deprivation power followed conviction. By the time a conviction existed, however, the authorities had already removed every animal and completed their disposal under the March warrant. No livestock remained upon which the court could exercise its section 3 power. The guilty pleas produced convictions, but they could not retrospectively convert the pre-trial warrant into a post-conviction deprivation order or answer the unresolved question of what substantive power had authorised the earlier disposal.

If the Crown had failed to establish the charges, no conviction-based deprivation order could have followed under section 3; yet the herd would still have been gone. The guilty pleas prevented that hypothetical result from being tested. They did not convert the March warrant into a deprivation order made after conviction.

On 8 December 1997, Gilmour imposed fines of £600 on charge 2, £1,200 on charge 5, £500 on charge 7, £800 on charge 8 and £600 on charge 9: £3,700 in total. He also disqualified Daniel from having custody of farm animals for three years.

The cattle had already been removed from Powhillon in March and had been sold, destroyed or had died before conviction. Gilmour's report records that an SSPCA representative attended court with a cheque of just under £16,000 from the disposal and that, because funds were “instantly available”, he imposed financial penalties. Money produced by the pre-trial disposal of the herd was therefore available to meet fines imposed after the guilty pleas.

The source of legal power for the pre-trial removal and disposal is examined in Cattle Stolen. The competing veterinary evidence, the agricultural conditions at Powhillon and responsibility for those conditions are examined in Illicit Conviction. Here the consequence is direct: the herd had gone, its condition could no longer be independently examined, and the criminal allegations were converted into convictions without an evidential trial.

The conviction challenge and the recorded sentence appeal

The papers before the High Court identified grounds of appeal against sentence lodged on Daniel’s behalf on 15 December 1997. Daniel maintained that it was the convictions he sought to challenge: he had not tendered or authorised the guilty pleas entered by McAteer on his behalf. His challenge to the convictions is recorded in the High Court’s own opinion of 22 May 2003, when he petitioned to have an appeal restored for consideration.

On 19 January 1998 Macbeth Currie wrote to Beltrami & Co confirming that Margaret Scott had been instructed to provide an opinion on the prospects of success and to conduct the appeal when it called on 17 February. That correspondence describes the appeal being handled as a “Note of Appeal Against Sentence.” It did not address the authority for the guilty pleas.

The distinction mattered. A sentence appeal would not determine whether McAteer had authority to replace Daniel’s not-guilty pleas. The proceedings recorded in the professional correspondence addressed sentence, while Daniel sought to challenge the convictions themselves. He subsequently took his papers to Craig Young of Primrose & Gordon and sought alternative representation.

The attempted change of solicitor did not protect the appeal. On the morning of 15 July 1998, Craig Young telephoned Beltrami & Co. Daniel had given Primrose & Gordon his papers during the preceding fortnight, but transfer of Legal Aid had not been approved. Young asked whether Beltrami would be appearing at the Appeal Court that morning. The note records that Primrose & Gordon hoped McAteer would attend or have the appeal continued because they did not want Daniel's interests prejudiced.

McAteer did not appear. No other representative appeared for Daniel, and no effective motion was made to continue the case while the transfer was resolved. The surviving record contains no notification from McAteer explaining his absence or protecting the appeal. The court dismissed it for want of insistence that day.

The sentence appeal was dismissed without a hearing on its merits. Daniel subsequently placed the disputed pleas before the High Court in his petition to the nobile officium. The court recorded that he was seeking to challenge the circumstances of his conviction, rather than the sentence, but regarded the earlier proceedings as an appeal against sentence only.

The correspondence does not record McAteer's explanation for proceeding with an appeal against sentence when Daniel disputed the pleas or for failing to appear on 15 July. It records the attempted transfer of representation, the lack of an appearance or application for continuation and the dismissal of that appeal. The later High Court opinion records Daniel’s express challenge to the convictions, but identifies no earlier ordinary appeal against conviction.

22 May 2003 — the conviction challenge before the High Court

Daniel petitioned the High Court of Justiciary to exercise its nobile officium, the court’s extraordinary jurisdiction. The opinion delivered on 22 May 2003 records that the petition sought to have an appeal restored to the Justiciary Appeal Roll. It also records that Daniel told the court he was not concerned with the appeal against sentence, but with the circumstances of his conviction. He said the solicitor had tendered guilty pleas without his authority, that he had not accepted the allegations apart possibly from describing one animal as thin, and that no evidence had been heard.

The court held that no appeal against conviction had previously existed to be restored to the Appeal Roll. It also relied on the time that had passed since conviction and considered the explanation for the delay unsatisfactory. It therefore refused the petition. The opinion expressly records Daniel’s attempt to challenge the convictions, but the judges did not hear evidence or decide whether McAteer had authority to tender the guilty pleas. The judgment distinguishes Daniel’s conviction challenge in 2003 from the earlier appeal against sentence recorded in the court papers.

The opinion left the convictions standing without deciding whether McAteer had authority to tender the pleas. Its description of Daniel as present at the diet was not a finding that he personally entered or confirmed them. The factual dispute was subsequently raised in the Bill of Suspension.

Gilmour's later statement

On 20 June 2003, responding to Daniel's Bill of Suspension, Gilmour made an assertion not included in his December 1997 report. He said Daniel had been “requested personally to confirm the pleas of guilty and did so”. He described that as his standard practice and stated that the court minute of 17 November 1997 confirmed his recollection. His signed report is the first identified account from him explicitly asserting Daniel's personal confirmation.

On 15 November 2004, two days before the Bill was refused, Principal Procurator Fiscal Depute John Martin wrote to the Crown Office enclosing the complaint and copies of the court minutes. His description changes within the same letter: for 16 April 1997 he wrote that Daniel “pled not guilty”; for 17 November, with McAteer representing him, he wrote “pleas of guilty were tendered”. Martin also used the expressions “appeared with the same solicitor” and “appeared in Court personally”. Those observations about appearance and representation are relevant, but do not expressly state that Daniel confirmed the guilty pleas. The annotated complaint is the record of that diet presently held by Powhillon. Its marginal entries record the pleas tendered but not express personal confirmation. The supplied copy does not identify the person who made or authenticated them; no separate authenticated 17 November clerk’s minute has been identified in the records reviewed.

The marginal entries on the complaint for 2 September and 3 November 1997 are likewise abbreviated and do not, by themselves, record Daniel’s personal confirmation. The separate clerk’s minutes for those dates supply the fuller descriptions of his not-guilty pleas and attendance. Comparing the 17 November marginal entry with those separate clerk’s minutes is therefore not a like-for-like comparison. The absence of an express confirmation from the surviving marginal entry does not establish that none occurred; nor does it authenticate Gilmour’s later account of personal confirmation.

Daniel's Bill of Suspension expressly disputed the authority for the pleas. Gilmour's December 1997 report and Martin's 2004 letter describe guilty pleas tendered on Daniel's behalf, while Gilmour's June 2003 report adds that Daniel personally confirmed them and cites the minute. The surviving handwritten proceedings entries do not expressly record that confirmation. The subsequent High Court proceedings did not produce a recorded determination of the competing accounts after hearing the witnesses Daniel identified.

The temporary-sheriff system

Gilmour signed his December 1997 report as a Temporary Sheriff. Two years later, in Starrs v Ruxton, the High Court held that the temporary-sheriff system did not provide the independence and impartiality required by Article 6 of the European Convention on Human Rights. The critical features were the short, renewable appointment and the lack of adequate security of tenure.

The Scottish Executive stopped using temporary sheriffs. Section 6 of the Bail, Judicial Appointments etc. (Scotland) Act 2000 abolished the office, while section 7 created part-time sheriffs with a different appointment structure. Gilmour signed his June 2003 report as a Part-time Sheriff.

Starrs did not decide Daniel's case and no identified judgment set aside his 1997 conviction on that ground. The judicial office in which Gilmour accepted the disputed pleas was nevertheless an office subsequently held not to meet the required standard of independence.

The Bill of Suspension

The Crown opposed Daniel's Bill of Suspension through Answers signed by Advocate Depute John Beckett. The Crown relied on the recorded guilty pleas, acquiescence, personal bar and the earlier refusal of the nobile officium petition. Its case was procedural: Daniel should not be allowed to reopen the conviction. The Answers did not establish what instructions Daniel had given McAteer on 17 November 1997.

On 17 November 2004, the Lord Justice Clerk, Lord Osborne and Lord Hamilton heard Daniel personally and heard the Advocate Depute. They refused to pass the Bill. The one-page interlocutor gives no reasons. It does not say that McAteer was authorised, that Daniel personally confirmed the pleas or that Gilmour's later account was accepted after evidence.

A conviction whose originating question was never tried

In March 1997, Howdle sought and Fletcher granted authority for the herd's removal and permanent disposal before any conviction. The animals were then sold, destroyed or died, with the last recorded sale in June. Daniel continued to plead not guilty, including at the 3 November diet. On 17 November McAteer tendered guilty pleas to five charges on his behalf. Daniel says he was outside with defence witnesses and had not authorised those pleas. The pleas were accepted and the contested trial did not proceed.

The High Court's opinion of 22 May 2003 records Daniel challenging the convictions because the pleas had been tendered without his authority, but refused his application to restore an appeal for procedural reasons. In June 2003 Gilmour stated that Daniel had personally confirmed the pleas, invoking the court minute as support. The handwritten complaint records the pleas tendered on 17 November but contains no entry of Daniel personally confirming them. The 2004 interlocutor contains no recorded resolution of the conflicting accounts.

The herd was permanently disposed of before guilt had been determined. The guilty pleas brought the criminal allegations to conviction without contested evidence. Whether Daniel personally authorised or confirmed those pleas remains disputed; whether the earlier warrant lawfully permitted permanent pre-trial disposal is a separate question which the convictions did not answer.