Pesticides appeal judgement ‘bizzare’

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We would like to show you the UK Pesticides Campaign PRESS RELEASE sent out on 7th July 2009 at 10.45am

PESTICIDES PUBLIC HEALTH SCANDAL WHITEWASH FOLLOWING BIZARRE COURT OF APPEAL JUDGMENT, AS CAMPAIGNER VOWS TO FIGHT ON TO THE HOUSE OF LORDS

Award-winning environmental campaigner, Georgina Downs, who last November won a historic and landmark High Court victory against the Government over its fundamental failure to protect people in the countryside from pesticides has today issued a statement regarding the Court of Appeal Judgment that has been handed down this morning in the case Secretary of State for the Department for the Environment, Food and Rural Affairs (DEFRA) v Georgina Downs.

For the purposes of this press release Georgina Downs’ statement is included in full below with notes to editors to follow. (The same statement can also be found on Ms. Downs’ website under the second link).

Speaking outside the Royal Courts of Justice this morning, Georgina Downs stated,

“I would like to start by saying that I think this may well go down in history as being the most bizarre and inaccurate Judgment to have ever come out of the Court of Appeal.

Last November I won a landmark victory in the High Court against the Government over pesticides. That High Court Judgment was very clear as the Judge, Mr. Justice Collins, said that he was in “no doubt” that the Government had been acting unlawfully in its policy and approach in relation to the use of pesticides in crop spraying, and that public health, in particular rural residents and communities exposed to pesticides from living in the locality to regularly sprayed fields, was not being protected (and this applied to both acute effects and chronic long term adverse health effects).

Mr. Justice Collins formed his judgment on the evidence that I had set forth before the High Court, in particular the detailed Witness Statements that I had produced, as he recognised that they “set out the factual basis for the arguments presented” in my case, and that they sought to “meet the contrary arguments put forward on behalf of the Government.”

Having considered my Witness Statements carefully, Mr. Justice Collins concluded that I had produced “cogent arguments and evidence,” that had been “scientifically justified.” He also concluded that I had produced “solid evidence that residents have suffered harm to their health.”

The High Court Judgment was obviously a very significant and landmark ruling for the potentially millions of residents throughout the country who, like myself, live in the locality to pesticide sprayed fields.
When granting the Government permission to appeal the High Court ruling, Mr. Justice Collins made it clear that he did not think that an appeal had a real prospect of success. This would have been based on the assumption that the Court of Appeal would form its Judgment on the very same evidence and arguments that he did.

However, today’s Judgment from the Court of Appeal which has overturned Mr. Justice Collins’ Judgment unanimously, has done so as a result of very wrongly (and possibly intentionally) substituting the cogently argued case I presented with that of another party. This means that almost the entire judgment has been formed on the wrong basis and does not in any way resemble the same case, arguments and evidence that Mr. Justice Collins based his Judgment on in the High Court.

Lord Justice Sullivan in substituting my case and arguments with those set out in a report 4 years ago by the Royal Commission on Environmental Pollution has based the justification for doing that on the totally incorrect assumptions that all of the material set forth before the court had been considered by the Royal Commission and therefore that the Royal Commission’s views must be the high water mark of my case. Not only is this not correct, it is ridiculous considering that the 6 Witness Statements that I produced for this case (along with a vast amount of documentation that went with it, as there are a few thousand pages before the court) were all prepared after the Royal Commission’s report had been published in 2005. For example, my first witness statement was a year later in October 2006 and the 149 page second Witness Statement which is the most important in detailing the full factual arguments and evidence of my case was dated April 2008, which is over 2 and a half years after the Royal Commission report. Therefore it is of course not possible for the Royal Commission to have assessed the exact case and factual arguments and evidence that were set forth before the court if all the witness statements and accompanying materials that provided the critical basis of my case and arguments all post-dated the Royal Commission report.

I have put considerable work and effort into producing the arguments, evidence and materials for this legal case over the last 3 years and I have worked to the highest professional standard and been meticulous with accuracy and attention to detail. Therefore it is completely unacceptable to me to see my case and arguments fundamentally misrepresented in such a way, as today’s Judgment has effectively turned the case into the Royal Commission on Environmental Pollution v DEFRA. Yet the Royal Commission is not a named party in this case, as it is supposed to be Georgina Downs v DEFRA, and I have taken this case at considerable personal, professional and financial costs for myself and my family. (The Government of course has continued to fight against me using many hundreds of thousands of pounds of taxpayers money!)

Last year Mr. Justice Collins went by my case and evidence that was set before him and ruled in my favour by concluding that the Government had been acting unlawfully. In fact prior to this Court of Appeal Judgment, I had actually won all 5 of the decisions that had taken place so far in this legal case since 2007. This is the first ruling out of 6 to go in the Government’s favour and it has done so in a very bizarre and questionable manner.

It also means that my actual case, arguments and evidence have not actually yet been defeated in the courts, as today’s Judgment ruled in the Government’s favour, but based on someone else’s position. Therefore this Judgment is a complete whitewash as by substituting my case for someone else’s it just says every single thing that the Government would have wanted it to say. In fact there is not even a hint anywhere in the Judgment of any criticism of the Government at all. The Court of Appeal has basically passed it back to the Government to deal with and yet it is the Government I am challenging! The Government could not have wished for a better result than if it wrote the Judgment itself! It was clear to a number of those who attended the hearing in May that the Judges came in with a pre-formed view, but why did they come in with a pre-formed view? Aside from the Government, the chemical industry and the farming unions who I am sure will be hanging off every word, I really don’t think anyone’s going to take this judgment seriously as it is just bizarre.

Obviously by not forming the Court of Appeal Judgment on the basis of my case, it means that a considerable amount of evidence that was set forth has inexplicably been ignored in the Judgment. The most important of this is that, whilst the Judges have considered whether the Government’s model is ‘suitable’ and therefore lawful for the short-term exposure of a bystander, it has completely failed to consider whether there was a suitable model for the long-term exposure of residents. Yet this has been the long-standing charge of my case, that the Government’s bystander model does not and cannot address residents, and therefore that the Government’s approach does not comply with the European Directive, as rightly concluded by Mr. Justice Collins in the High Court ruling. It is of course important to point out that Judicial Review is about points of law and not the facts or the merits (although as said in this case the Court of Appeal has based its decisions on the legal points using the wrong facts and evidence in any event). Therefore the fact clearly remains that there has never been any assessment for the long-term exposure for those who live, work or go to school near pesticide sprayed fields, which as I have continued to maintain is an absolute scandal considering that crop-spraying has been a predominant feature of agriculture for over 50 years.

The High Court Judgment last year rightly recognised that this case is based on the risk of harm to rural residents, not upon proving that such harm has already occurred. It is therefore not incumbent upon me, in relation to my challenge under the EC Directive, to prove causation. So far as the Directive is concerned, my arguments would arise irrespective of whether I had personally suffered adverse health effects, because I (and other residents) would still have been (and continue to be) exposed to the risk of harm.

DEFRA itself has previously stated that, “If there is scientific evidence that use of a pesticide may harm human health, that is considered unacceptable.”

However, in the Court of Appeal Judgment Lord Justice Sullivan has completely shifted the goalposts in relation to this issue, as he says that not only does there need to be actual harm, (which there does not, as it is supposed to be based on the risk of harm or even less if going by the Government’s statement of “may harm”), but he says that harm to an individual’s health cannot be confirmed definitively until there is consensus across the scientific community. This is a very serious misinterpretation indeed. Evidence is the word Mr. Justice Collins recognised was the right one in the High Court Judgment, as to say effectively that no diagnosis can be confirmed and thus action taken until there is scientific consensus is not only incorrect, it is an impossibility considering the diversity of scientific positions between Government scientists who want to maintain a certain position on the issue and various independent scientists who want to act on the existing scientific and medical evidence. Therefore again this is another area where this Judgment is simply bizarre and very legally flawed in view of the overriding public safety duty as required by the European Directive regarding the protection of human health.

It is important for me to point out that the draft Judgment contained a number of very serious and important factual errors in relation to my own personal health situation, which were completely unacceptable. However, considering I have only just received the final Judgment I will need to consider the content of this version carefully before issuing any further comment regarding my own personal situation.

We now have a situation where there has been 2 completely opposing judgments, as the High Court Judgment only 8 months ago was unequivocal in its conclusions of the Government’s failure to protect public health and now a Court of Appeal Judgment has put the main focus, quite frankly, on the protection of the Government and the industry position, with no real concern whatsoever for human health shown at all.

It is outrageous and complacent the position the Court of Appeal has taken in this judgement, as it basically says it is okay for people to suffer certain adverse health effects from exposure to pesticides and has effectively just given a green light to the Government to continue to carry on poisoning people in this country, which is extraordinary. This is a serious public health issue of significant public importance, so of course I will be applying to appeal to the House of Lords in relation to trying to overturn this very legally flawed judgment and to uphold the original one from the High Court.

Ironically Lord Justice Sullivan who has written the lead Judgment today, only a few months ago in March criticized the Government for not having initiated any action as a result of the High Court ruling. He stated that whilst the Government’s “Plan A” was to appeal and hope that the Judgment went in their favour, the Government clearly had no “Plan B” in relation to its response if its appeal fails. He therefore ordered that the Government should get on with its review. The Government’s review subsequently started and it has been reported that DEFRA has clearly indicated that irrespective of the outcome of its appeal that changes would be made to its policy. Therefore if changes will be made to the policy anyway, which was the whole aim of my campaign, to change Government policy on pesticides, then the campaign objective would be met, irrespective of the outcome of the legal case.

The one thing that the Government will know from all this is that I am not afraid to take them on on any level, that I will take them on in the highest courts in the land, and aside from going to the House of Lords, I will take another Judicial Review challenge from scratch on any other decisions that come out in relation to pesticides. I am on the Government’s case and will be on their case until the necessary changes are made to protect public health, as the evidence in my Witness Statements shows quite clearly that the Government has knowingly failed to act, has continued to shift the goalposts, cherry picked the science to suit the desired outcome, and has misled the public, especially rural residents over the safety of agricultural pesticides sprayed on crop fields throughout the country.

The Government’s response to this issue has been of the utmost complacency, is completely irresponsible and is definitely not “evidence-based policy-making.” The unarguable evidence contained in my Witness Statements that led to the landmark High Court victory last year, but the majority of which the Court of Appeal has completely ignored in today’s Judgment, will be published on my website in due course, as for various reasons it cannot be released at this time. I will be making a further statement to accompany its publication shortly.”

Notes to Editors:-

Contact: Georgina Downs – UK Pesticides Campaign
www.pesticidescampaign.co.uk

The Judgment in the Court of Appeal case Secretary of State for the Department for the Environment, Food and Rural Affairs (DEFRA) v Georgina Downs was handed down at 10am on 7th July 2009. The Court of Appeal hearing took place between 18th and 20th May 2009. The Court of Appeal Judges were Lord Justice Sullivan, Lady Justice Arden and Lord Justice Keene.

Georgina Downs made a statement outside the Royal Courts of Justice following the hand down this morning. This press release contains the statement in full, but it is also available on her website under the second link at: www.pesticidescampaign.co.uk  

Ms. Downs will now be applying to appeal to the House of Lords against the Court of Appeal Judgment.

DEFRA’s appeal was against the High Court Judgment of Mr. Justice Collins in the landmark Judicial Review case Georgina Downs v Secretary of State for DEFRA that was handed down on 14th November 2008. Ms. Downs’ case was the first known legal case of its kind to reach the High Court to directly challenge the Government’s pesticide policy and approach regarding crop-spraying in rural areas and Ms. Downs won the case.

The High Court Judgment of 14th November 2008 is available at:- http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/2666.html&query=title+(+downs+)&method=boolean Georgina Downs made a statement outside the High Court following the hand down on 14th November 2008.

The statement in full and the accompanying press release dated 14th November 2008 are available on her website at: http://www.pesticidescampaign.co.uk/georgia_high_court_victory.htm  

An oral hearing regarding the Government’s application for a “stay” of the High Court Judgment and subsequent Order took place on 4th March 2009. Lord Justice Sullivan refused the Government’s application for a “stay” and ordered that the Government should get on with its review following the High Court ruling in November 2008 and as a result this review is currently underway.

Ms. Downs has spent much of the last 3 years working on the legal case and after re-reading approx. 3500 pages of documentation in the High Court she submitted a 149 page second Witness Statement which provided the critical evidence for her original Judicial Review victory. Ms. Downs produced 6 Witness Statements in total, the majority of the contents of which the Court of Appeal has inexplicably completely ignored in today’s Judgment, as the Court of Appeal has very bizarrely substituted Ms. Downs’ case, arguments and evidence with the conclusions of a report by the Royal Commission on Environmental Pollution 4 years ago in 2005. The critical evidence contained in Ms. Downs’ Witness Statements has not yet been published, but is due to be in due course. Ms. Downs will make a further statement to accompany their publication.

Ms. Downs was represented by Michael Fordham QC and Emma Dixon, barristers at Blackstone Chambers. Michael Fordham was recently named as Public Law and Human Rights Silk of the Year at the Chambers & Partners Bar Awards 2008, see http://www.blackstonechambers.com/news/news/chambers_bar_awards.html

Georgina Downs runs the UK Pesticides Campaign (www.pesticidescampaign.co.uk) to highlight the risks and adverse health and environmental effects of pesticides, especially on rural residents and communities. Ms. Downs has lived next to regularly sprayed fields for over 25 years and has spent the last 8 years campaigning for a change in the regulations and legislation governing crop spraying. She was the first to identify serious fundamental flaws regarding the so-called “bystander risk assessment”. The ‘bystander’ model assumes there will only be occasional, short-term exposure to the spray cloud at the time of the application only, (ie. immediate spraydrift) for five minutes (or less), from a single pass of a sprayer, based on a person standing 8 metres from the spray boom (and based on dermal and inhalation routes of exposure only). It also assumes exposure will only be to one individual pesticide at any time. Ms. Downs has continued to argue that the bystander model does not and cannot address residents who are repeatedly exposed from various exposure factors and routes to mixtures of pesticides and other chemicals, throughout every year, and in many cases, like her own situation, for decades. The various exposure factors include long term exposure to pesticides in the air, exposure to vapours, which can occur days, weeks, even months after application, exposure to mixtures, precipitation, reactivation, pesticides transported from outdoor applications and redistributed into an indoor air environment, as well as long-range transportation, as studies have shown pesticides found miles away from where they were originally applied.

The evidence set out in Ms. Downs’ second Witness Statement shows that the Government, its main advisors, the Advisory Committee on Pesticides, and the regulators, formerly the Pesticides Safety Directorate now the Chemicals Regulation Directorate, have clearly continued to allow acute effects, (including both local irritant effects, as well as systemic effects such as headaches, nausea, aching limbs, pain, dizziness etc.) to occur in residents (and bystanders), without taking any action to protect residents health. It should be noted that when acute effects are repeated again and again, as they are for people living near sprayed fields, then it can increase the risk of long-term cumulative effects resulting in chronic long-term illnesses and diseases.

There have been a number of recent and important European Commission statements that clearly acknowledged the chronic long term impacts of pesticides, including for those living in the locality to sprayed fields. For example, the EC stated that, “Long term exposure to pesticides can lead to serious disturbances to the immune system, sexual disorders, cancers, sterility, birth defects, damage to the nervous system and genetic damage.”(Source: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/06/278&format=HTML&aged=0&language=EN&guiLanguage=en  )

In January this year Ms. Downs met with the key policy advisor to Gordon Brown at Number 10 and has recently met with the Secretary of State for DEFRA, Hilary Benn, to call on the Government to introduce mandatory measures to protect rural residents. These measures include the call for an immediate ban on crop-spraying near homes, schools, playgrounds, workplaces and other public areas; for direct public access to information on the chemicals sprayed on crops; and for a new legal obligation to give rural residents prior notification before any pesticide spraying in their locality

In 2008 Georgina Downs won the first ever Inspirational Eco Woman of the Year Award, in the Daily Mail’s Inspirational Women of the Year awards. Ms. Downs also won the prestigious Andrew Lees Memorial Award at the 2006 British Environment and Media Awards (BEMAs) and the Heroine Award at Cosmopolitan magazine’s inaugural Fun Fearless Female Awards in November 2006. She was also invited to attend the 2008 “Women of the Year Lunch” where each woman is individually nominated by a member of the Women of the Year Nominating Council and is considered a “Woman of the Year” because of their special contribution to society or the workplace. Ms. Downs was also recently elected a fellow of the Royal Society of Arts, Manufactures and Commerce (RSA) as a result of her campaigning efforts.

**Please note that this case is Georgina Downs v DEFRA and does not involve any other group or organization. Due to legal confidentiality regarding the specific arguments involved in this case the only contact for enquiries about the actual evidence and arguments presented in this case is Georgina Downs.

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