Highbury Poultry Farm Produce Ltd v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Mr Justice Jay |
| Judgment Date | 16 November 2018 |
| Neutral Citation | [2018] EWHC 3122 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1305/2018 and CO/1306/2018 |
| Date | 16 November 2018 |
[2018] EWHC 3122 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham B4 6DS
Lord Justice Hickinbottom
Mr Justice Jay
Case No: CO/1305/2018 and CO/1306/2018
In the Matter of an Appeal by Way of Case Stated
In the Matter of an Application for Judicial Review
and
Stephen Hockman QC and David Hercock (instructed by SAS Daniels LLP) for the Appellant/Applicant
Richard Wright QC and Howard Shaw (instructed by CPS) for the Respondent/Interested Party
Hearing date: 2 nd November 2018
Judgment Approved
Synopsis
Highbury Poultry Farm Produce Ltd (“HPFPL”) operates a poultry slaughterhouse at Whitchurch in Shropshire under the approval of the Food Standards Agency. The average throughput is 75,000 chickens per day, equating to 19,500,000 or so chickens per annum. The birds have their legs shackled to a moving line and are then submitted to a number of sequential processes, namely (insofar as is material for these purposes) stunning, bleeding and scalding. On each of 31 st August, 12 th September and 5 th October 2016 a chicken went into the scalding tank whilst still alive because its neck was not properly cut by a certificated operative.
HPFPL was charged with two offences in respect of each incident, namely:
“1. The Defendant … being the business operator of a slaughterhouse, failed to comply with a specified EU provision, namely Article 3(1) of Regulation (EC) No 1099/2009 [on the protection of animals at the time of killing] (“the EU Regulation”), which required that animals should be spared avoidable pain, distress or suffering during their killing and related operations, in that a bird that had been subject to simple stunning was not stuck and bled out before being processed, contrary to Regulation 30(1)(g) of the Welfare of Animals at the Time of Killing Regulations 2015 (2015 S.I. No. 1782) [“the 2015 Regulations”].
2. The Defendant … being a business operator, failed to comply with a specified EU provision, namely Article 15(1) of [the EU Regulation], which required you to comply with the operational rules for slaughterhouses laid down in Annex III of the said Regulation, including point 3.2 setting out requirements for the bleeding of animals, in that, following the simple stunning of a chicken, there was a failure to systematically sever the carotid arteries or the vessels from which they arise and the animals entered the scalding tank without the visible signs of life [sic] having been verified, contrary to Regulation 30(1)(g) ….” [the words “absence of” should have appeared before “the visible signs”]
HPFPL raised a preliminary point of law which became sub-divided into two related issues, namely: (1) whether the offences under Regulation 30(1)(g) require proof of mens rea in HPFPL, i.e. knowledge of the factual circumstances constituting the alleged offence, and (2) whether the prosecution must prove a culpable act or omission on the part of HPFPL.
Following a hearing which took place before District Judge (Magistrates Court) Cadbury sitting at Kidderminster on 23 rd November 2017, a ruling was handed down at Telford Magistrates Court on 9 th January 2018. In essence, District Judge Cadbury held that these offences did not require proof of mens rea, and that consequently there was no need to prove culpability on the part of HPFPL.
On 19 th March 2018 District Judge Cadbury stated a case seeking the opinion of this Court on the following two questions, viz.:
“1. Did I err in ruling that proof of an offence contrary to Regulation 30(1)(g) … did not require the prosecution to prove mens rea on the part of the business operator?
2. Did I err in ruling that the prosecution was not required to prove a culpable act and/or omission on the part of the business operator when prosecuted for offences alleged to be contrary to [the 2015 Regulations]?”
Given concerns as to the applicability of the case stated appellate procedure to a situation where the Magistrates Court has not made a final determination of guilt, HPFPL also brought judicial review proceedings against District Judge Cadbury's ruling. On 3 rd May 2018 Sir Wyn Williams ordered that this Court should decide whether it has jurisdiction to determine the appeal by way of case stated; and, in the event that it should rule that jurisdiction is lacking, then proceed to determine whether to grant permission to apply for judicial review and decide the merits of that claim.
The Legislative Framework
The EU Regulation is directly applicable in all Member States and is enforced in the UK by or through the mechanism of the 2015 Regulations. Thus, the relevant criminal offences arise under the latter, although Regulation 30(1)(g) makes direct reference to EU provisions. It is clear law that the EU Regulations should be interpreted purposively, in line with standard EU principles (see, for example, Omejc v Republika Slovenija [C-536/09, paragraph 20]), and that any specific provision must be interpreted having regard to other provisions in the same legal instrument and in a manner which ensures that the effect of these other provisions is not undermined (see, for example, Albrecht v Landeshautmann von Wien [C-382/10, at paragraphs 18 and 21]). Moreover, national provisions cannot alter, modify or add to the scope of an EU Regulation (see, for example, Hauptzollamt Hamburg-Oberelbe v Firma Paul G. Bollman [1970] CMLR 141, at paragraph 4), and national law must be interpreted in conformity with EU law, including the latter's purposes, in order to secure full effectiveness (see, for example, Pfieffer v Deutsches Rotes Kreuz [2005] 1 CMLR 44, at paragraphs 113ff). Although no direct authority was cited for this proposition, it was common ground at the Bar that the operative provisions of the EU Regulation should be interpreted in the light of its recitals.
It is unnecessary to set out all the relevant operative provisions of the EU Regulation. It is not in dispute that HPFPL is a “business operator” (being a legal person “having under its control an undertaking carrying out the killing of animals”) and runs a “slaughterhouse” within the meaning of Article 2. It is also agreed that the servants or agents of HPFPL, characterised in the skeleton argument of Mr Richard Wright QC as “operatives” but not described in this Regulation as such, held relevant certificates of competence for the purposes of Article 7. I intend to focus on a limited number of key provisions.
The second recital provides:
“Killing animals may induce pain, distress, fear or other forms of suffering to the animals even in the best available technical conditions. … Business operators or any person involved in the killing of animals should take the necessary measures to avoid pain and minimise the distress and suffering of animals during the slaughtering or killing process, taking into account the best practices in the field and the methods permitted under this Regulation. Therefore, pain, distress or suffering should be considered as avoidable when business operators or any person involved in the killing of animals breach one of the requirements of this Regulation or use permitted practices without reflecting the state of the art, thereby inducing by negligence or intention pain, distress or suffering to the animals.” [emphasis supplied]
Elsewhere, the preamble to the EU Regulation makes clear, to the extent that this ever needed to be spelled out, that the protection of animals at the time of killing is a matter of public concern affecting consumer attitudes. Furthermore, as the preamble also provides, improving animal protection impacts on meat quality, occupational safety and competition within the internal market.
Article 1 provides that the EU Regulation lays down rules inter alia for the killing of animals bred or kept for the production of food.
Chapter II introduces various “General Requirements”. Article 3 provides insofar as is material as follows:
“ General requirements for killing and related operations
1. Animals shall be spared any avoidable pain, distress or suffering during their killing or related operations.
2. For the purposes of paragraph 1, business operators shall, in particular, take the necessary measures to ensure that animals:
…
(b) are protected from injury;
…
(d) do not show signs of avoidable pain or fear or exhibit abnormal behaviour.
…
3. Facilities used for killing and related operations shall be designed, constructed, maintained and operated so as to ensure compliance with the obligations set out in paragraphs 1 and 2 under the expected conditions of activity of the facility throughout the year.”
By Article 4, there is an obligation to stun animals only in accordance with the methods and specific requirements laid down in Annex I; and, by Article 5, there is a further obligation, specifically on business operators, to ensure that regular checks on stunned animals are carried out to ensure that they do not present any signs of consciousness or sensibility. By Article 6, there is a further obligation on business operators to ensure that animals are killed in accordance with standard operation procedures which have been planned in advance. There are additional obligations in Chapter II, bearing on the use of restraining and stunning equipment, which are expressed in similarly prescriptive terms: the verbs used are “shall” and “ensure”.
Chapter III introduces various “Additional Requirements Applicable to Slaughterhouses”. It may be inferred that Chapter II applies more generally, in other...
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