Association of Independent Meat Suppliers and Another v Food Standards Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Simon |
| Judgment Date | 02 July 2015 |
| Neutral Citation | [2015] EWHC 1896 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5728/2014 |
| Date | 02 July 2015 |
[2015] EWHC 1896 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court Centre
1 Oxford Row, Leeds, LS1 3BG
Mr Justice Simon
Case No: CO/5728/2014
The Queen on the application of:
Mr David Hercock (instructed by Mills & Reeve for the Claimant
Mr Adam Heppinstall (instructed by Ms Bryony Dean) for the Defendant
Hearing date: 4 June 2015
Background
On 11 September 2014, Cleveland Meat Company Ltd (the 2nd Claimant) purchased a bull at Darlington Farmers' Auction Mart for a price of approximately £1,400. On the same date, the Official Veterinarian ('OV') stationed at the 2nd Claimant's slaughterhouse carried out an ante-mortem inspection of the animal and passed it as fit for slaughter for the purpose of human consumption.
It was assigned a kill number, stunned and slaughtered. The head and feet were severed, the hide removed, the body eviscerated and the carcase split longitudinally with the spinal cord being removed. The carcase and the offal were then subject to a post-mortem inspection by a Meat Hygiene Inspector ('MHI').
The carcase was of normal appearance, but the offal was assessed as containing three abscesses. The MHI did not retain the offal; but following discussions between the OV and the MHI, the carcase was declared unfit for human consumption on the basis that the abscesses gave rise to a suspicion that the animal had been suffering from pyaemia (a form of septicaemia). This assessment was confirmed in a 'Rejected Meat Receipt' prepared by the OV on the same date.
Mr Michael Broad, the 2nd Claimant's Managing-Director and a Director of Darlington Farmers' Auction Mart, was concerned about this decision. In his evidence he has realistically accepted that apparently healthy animals may prove on post-mortem inspection to be suffering from disease which renders them unfit for human consumption. They may, for example, have walled off TB lesions in the organs. In the case of pyaemic animals, however, his experience is that they tend to be underweight and show signs of being unwell. The animal in question showed no such signs. It was in his words, 'fighting fit.' He did not accept the OV's decision, took expert veterinary advice and employed solicitors to challenge the assessment of the meat's fitness for human consumption.
The Defendant, which is the regulator of the meat industry and is responsible for the official controls at slaughterhouses, was not prepared to engage in an argument about the correctness of the OV's decision. It contended (and continues to contend) that there is no right of appeal against a decision by an OV to reject meat as unfit for human consumption.
In a letter of 19 September 2014 the 2nd Claimant was notified that the OV considered that carcase 77 was suffering from generalised pyaemia, and that it must be disposed of as animal by-product. This was followed by a statutory disposal notice requiring the 2nd Claimant to dispose of the carcase as animal by-product, with a warning that failure to comply with the notice was a criminal offence.
The 1st Claimant, as its name suggests, acts on behalf of its members who are the owners and managers of 150 slaughterhouses. The evidence of Mr Norman Bagley, its Head of Policy, is that any decision that a carcase is unfit to enter the food chain has a direct financial impact on its members (if the animal is sold at market) and to farmers (if the animal is supplied directly to the slaughterhouse). While he accepts that it is of the utmost importance that any meat leaving a slaughterhouse is fit for human consumption and that members of the association depend on public confidence in the food which is produced, the people who work in the industry, and particularly farmers (who will have reared the animals) have a good idea of their condition. For example, if an animal has been ill in the past this will be documented on the Food Chain Information which accompanies each animal to the slaughterhouse. In Mr Bagley's view, OVs who are stationed at abattoirs lack experience of clinical veterinary practice and their opinions may not be shared by more experienced veterinarians, as in the present case.
Mr Board has assessed the cost of carcase 77 as being approximately £1,400 in terms of the purchase cost of the animal, £200 gross loss of profit as a result of having to disposes of the carcase as animal by-product and £100 as the cost of disposal of a whole beef carcase. This is the equivalent of ten times the profit the 2nd Claimant would expect to make on ten animals such as carcase 77.
Although the 2nd Claimant has placed material before the Court which supports an argument that the animal was not suffering from pyaemia, that is not an issue that I could, or am asked to, decide. The issue for determination is whether there is a right of appeal against an OV's assessment of the fitness of meat for human consumption. The Claimants' case is that, where there is a genuine dispute as to the fitness of meat for human consumption, there should be a forum in which that issue can be determined, and that the failure to afford a slaughterhouse operator the right to challenge decisions that meat is unfit, is unlawful.
Their case is that, not only should there be such a forum, there is in fact such a forum: a hearing before a Justice of the Peace.
The Claimants' case in summary
Mr Hercock advanced the claim in three ways.
First, he submitted that in circumstances where a slaughterhouse operator disagrees with a decision that meat is unfit for human consumption and does not agree that a carcase should be surrendered for disposal, the applicable EU Regulations (which have direct application) require the Defendant to follow the statutory procedure set out in s.9 of the Food Safety Act 1990 ('the 1990 Act'). On this basis the procedure adopted by the Defendant has the effect of unlawfully circumventing the rights and protections set out in the EU Regulations.
Secondly, if there is doubt about whether the statutory procedure in s.9 of the 1990 Act applies, such ambiguity must be resolved by considering: (a) references to rights of appeal for those in the position of the 2nd Claimant; and (b) the convention rights set out in Article 1 of Protocol No.1 ('A1/P1') of the European Convention on Human Rights ('ECHR') and article 17 of the EU Charter of Fundamental Rights of Freedoms (the 'EU Charter').
Thirdly, and if section 9 of the 1990 Act cannot provide the route for the determination of the issues between the parties, the Court should make a declaration that the Defendant's practice of not affording a slaughterhouse operator a right to appeal against a decision to declare meat unfit for human consumption is an infraction of the 2nd Claimant's rights under A1/P1 and is unlawful.
The legislative and regulatory regimes
The Defendant is the 'competent authority' for the purposes of the European and national legislation in relation to food safety, and carries out controls to ensure compliance with the law. As already noted, the material controls at slaughterhouses are carried out by qualified and trained OVs, with the assistance of Official Auxiliaries ('OA'), known in this country as MHIs.
The regulation of slaughterhouses derives primarily from European Union law and, in particular, of Regulations of the European Parliament and Council, consisting of preamble paragraphs, operative articles and (in most cases) annexes.
Regulation 178/2002 of 28 January 2002 lays down general principles and requirements of food law, establishes the European Food Safety Authority and sets out procedures in matters of food safety.
Article 1 describes the aim and scope of the Regulation:
1. This Regulation provides the basis for the assurance of a high level of protection of human health and consumers' interest in relation to food, taking into account in particular the diversity in the supply of food including traditional products, whilst ensuring the effective functioning of the internal market.
The reference to the internal market emphasises the importance of the regulations applying consistently throughout the European Union.
Article 14 provides that food shall not be placed on the market if it is unsafe, and that it shall be considered to be unsafe if it is injurious to health or unfit for human consumption. It is common ground that the carcase in the present case fell within the definition of 'food'.
On 29 April 2004 three further Regulations were issued, known as the 'EU Hygiene Regulations'.
Regulation 852/2004 laid down hygiene rules applying to all foodstuffs, Regulation 853/2004, established specific hygiene rules for products of animal origin and Regulation 854/2004 laid down specific rules for official controls on products of animal origin intended for human consumption.
Article 5 of Regulation 853/2004 provides that:
Food business operators shall not place on the market a product of animal origin … unless it has … a health mark applied in accordance with Regulation 854/2004 …
Article 5 of Regulation 854/2004 requires member states to ensure that official controls with respect to fresh meat take place in accordance with Annex 1; and sets the responsibilities of the OV for the post-mortem inspection and health marking. Importantly in the present context, it provides that the OV must take appropriate measures as set out in Annex 1,...
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