Written by Daniel Langley, Trainee Solicitor
R. (on the application of Mott) v Environment Agency [2016] EWCA Civ 564
A recent judgment of the Court of Appeal indicates the extent to which the Courts, when considering an application for judicial review, must be careful to afford decisions based on expert advice a substantial margin of appreciation, and must be careful about reaching adverse conclusions on such advice without independent expert evidence.
The Court of Appeal partially upheld an appeal brought by the Environment Agency ("the agency") against a decision of the High Court that it had acted unlawfully in imposing an annual catch limit on the respondent leaseholder's fishery licence pursuant to the Salmon and Freshwater Fisheries Act 1975.
The leaseholder, who made a living by catching salmon, owned a right to fish in the Severn estuary. The limit reduced his catch by 95% and was imposed to protect salmon fisheries in the River Wye. The agency imposed the limit following an assessment it conducted and on the basis of a report from researchers at Exeter University containing statistical and genetic evidence about the origin of the salmon in the estuary. The leaseholder sought judicial review of the decision to impose the limit, claiming that the limit was depriving him of his livelihood. The judge held that the decision was irrational. He concluded that the limit unlawfully interfered with the leaseholder's ECHR Protocol 1 Article 1 rights and that flaws in the Exeter University report deprived it of any rational basis. He allowed the leaseholder to amend his pleadings to include a claim in damages.
The agency submitted that the judge had erred in (1) reaching adverse conclusions about the Exeter report without expert evidence; (2) concluding that there had been an interference with the leaseholder's Protocol 1 art. 1 rights which required compensation; and (3) allowing the leaseholder to amend his pleadings to include a claim for damages.
The Court of Appeal dismissed the appeal on the grounds relating to compensation and damages but upheld the appeal on the first ground. The Court of Appeal found that while a regulatory body such as the agency was entitled to a wide margin of appreciation, it had to give a sufficient explanation of how the science related to its decision to enable the court to determine whether it had abused its discretion or erred in law. Given that the agency's evidence was not easily accessible and did not counter the leaseholder's criticisms of the Exeter report, it was perhaps understandable that the judge had made educated guesses on a number of matters. However, in doing so he had erred.
In cases such as this one involving scientific, technical and predictive assessments the court had to afford the decision-maker an enhanced margin of appreciation. The judge had taken the view that he did not need knowledge of the technical issues relating to the genetic or statistical analysis contained in the Exeter report in order to identify flaws in it. On that basis he had entered into an analysis of its reliability and performed calculations of his own. That was inappropriate; a reviewing court should be slow to conclude that the expert statutory decision-maker had reached a perverse scientific conclusion. It should be even slower to impugn his educated predictions for the future. The appeal was therefore allowed on the first ground