In his signed account of the proceedings of 17 November 1997, Temporary Sheriff Jamie Gilmour recorded Procurator Fiscal David Howdle as indicating that Volac Volostrum, used as a substitute for colostrum, did not contain antibodies which might be required by a calf. Volac subsequently confirmed in writing that Volostrum contained immunoglobulin, which are antibodies.

Colostrum, immunoglobulins and Volac Volostrum

Colostrum is the first milk produced by a cow after calving. It contains immunoglobulins, proteins that act as antibodies and provide a newborn calf with early protection against infection. Calves acquire this passive immunity by absorbing maternal antibodies from colostrum, most effectively soon after birth. Where the mother cannot provide enough, a manufactured colostrum substitute may be given. Volostrum was a product sold by Volac for that purpose. R Hill & Co used it on veterinary advice.

On 23 July 2003, Conor Rudden, Technical Director of Volac International Limited, confirmed in writing that Volostrum contained immunoglobulin. He enclosed a specification dated 22 February 1993, a certificate of analysis dated 22 January 1997 and a certificate of approval dated 23 January 1997. All three documents predated the court proceedings.

Charge 9 and the calf’s illness

The original charge 9 alleged that Daniel Quinn failed to provide adequate food and prompt veterinary care to an undersized Simmental-cross heifer and allowed her to breed. It alleged that the cow became severely emaciated and ill and that her calf suffered unnecessarily as a consequence. The prosecution’s subsequent account, recorded by Gilmour, concentrated on the calf’s condition and Daniel’s treatment of it.

According to the Crown’s account recorded by Gilmour, veterinary officer Kathryn Kerr and a colleague found the calf beside the farm track on 14 March 1997. It was suffering from white scour, dehydration and an acid-base imbalance. Kerr considered that it needed warmth, shelter and veterinary treatment. The Crown also reported that Daniel had been treating it with Depomycin, a prescription antibiotic, but had not called a veterinary surgeon to examine that particular calf.

Powhillon’s herd had a history of bovine viral diarrhoea (BVD). In a letter dated 17 May 2004, veterinary surgeon G. A. Baxter of Firth Veterinary Centre confirmed that an outbreak in spring 1986 had caused numerous calf deaths from persistent BVD infections. R Hill & Co says BVD continued to affect its calves and that Daniel had treated affected animals for years, having been trained by the veterinary practice to give prescribed antibiotics. Antibiotics do not treat the BVD virus itself, but can be used for bacterial infections occurring alongside viral disease.

BVD can interfere with immune defences and contribute to diarrhoeal disease. White scour, dehydration and acid-base disturbance are compatible with infectious diarrhoea, but do not identify its cause by themselves. Gilmour’s report describes the calf’s symptoms and the treatment it received, without recording a BVD assessment or a confirmed cause of its illness.

The exchange during mitigation

The diet on 17 November 1997 had been fixed for trial, but guilty pleas were tendered on Daniel’s behalf to five charges. There was no contested trial in which the Crown’s veterinary allegations were proved through examination and cross-examination of witnesses. During mitigation, Daniel’s solicitor, Gary McAteer, put forward Daniel’s explanation of the calf’s care, including the use of Volostrum when the mother could not supply sufficient colostrum.

Gilmour recorded Howdle replying for the purpose of clarification that Volostrum did not contain antibodies which might be required by a calf. The exchange arose during McAteer’s mitigation, after the guilty pleas had been tendered on Daniel’s behalf.

Sentence was deferred until 8 December 1997. A fine of £600 was imposed on charge 9; the fines on five charges totalled £3,700, and Daniel was disqualified from keeping livestock for three years. In his later report, Gilmour wrote that any dispute with the prosecutor’s narrative should have been raised at the hearing, particularly if proof in mitigation were sought. He recorded McAteer as indicating that Daniel was required to accept the narrative relating to the five charges. By then, Powhillon’s cattle had already been removed and disposed of under the March warrant described in Cattle Stolen. Daniel subsequently challenged the authority for the guilty pleas, as described in Malicious Conviction.

From the original complaint to the account given in court

The written charge concerned the breeding and condition of the mother and the calf’s suffering as a consequence. In Gilmour’s report, the Crown’s account of charge 9 had already concentrated on the calf’s illness and treatment before McAteer addressed the court in mitigation. Section 159 of the Criminal Procedure (Scotland) Act 1995 permitted amendments to summary complaints, but prohibited a change to the character of the offence, required safeguards against prejudice and provided for authentication by the clerk. Rule 18.4 of the Criminal Procedure Rules 1996 allowed the court minute to be written on the complaint or an attached sheet.

The two annotated complaint sheets supplied by the court clerk end at charge 7, although handwritten entries refer to guilty pleas on charges 8 and 9. No annotated text of charge 9 was supplied, and the available papers do not establish whether it was formally amended. The original charge and the account subsequently recorded by Gilmour therefore remain distinct parts of the surviving record.

The police complaint and Crown Office response

R Hill & Co complained to Dumfries and Galloway Constabulary that Howdle had misled the court. Earlier, in a letter of 3 April 2002, the Crown Office’s Andrew Richardson had advised that allegations of criminal conduct should be reported to the police for investigation and, where supported by sufficient evidence, referred to the Procurator Fiscal. Chief Inspector Kate Thomson’s letter of 11 September 2003 and letter of 16 September form part of the subsequent correspondence. Thomson referred the complaint to the Crown Office.

On 10 October 2003, Deputy Crown Agent Bill Gilchrist acknowledged Volac’s confirmation that Volostrum contained immunoglobulin. He distinguished the statement recorded by Gilmour from an assertion that the product contained no antibodies at all, and said that the adequacy of Volostrum as a substitute for maternal colostrum was unclear.

Gilchrist quoted a joint veterinary report describing an increased risk of enteritis where a very thin cow produced scant or poor-quality colostrum and the importance of colostrum to a calf’s early immunity. Enteritis describes inflammation of the intestine, rather than identifying its cause. The quoted passages concerned the mother’s colostrum, as in the original allegation about her condition, rather than an analysis of Volostrum. His letter did not identify particular antibodies absent from the product or record an investigation of BVD as a possible cause of the calf’s illness.

Gilchrist wrote that Howdle was not a veterinary expert and that anything he said would have been based on veterinary advice. He declined to investigate the allegation concerning Howdle’s conduct, stating that there was no evidence the Procurator Fiscal had misled the court, deliberately or otherwise, and that the matter was not of great significance to the outcome.

How well did the legal professionals involved understand charge 9, and could the Ministry veterinary officers’ claims have withstood examination in a contested trial?