R (British Union for Abolition of Vivisection) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice May,Lord Justice Carnwath
Judgment Date30 July 2008
Neutral Citation[2008] EWCA Civ 417,[2008] EWCA Civ 870
Date30 July 2008
Docket NumberCase No: C1/2007/2139,Case No: C3/2008/1141 QB/2008/APP/0148

[2008] EWCA Civ 417

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT

THE HON MR JUSTICE MITTING

CO/7004/2003

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

LORD JUSTICE MAY

LORD JUSTICE DYSON and

LORD JUSTICE MOSES

Case No: C1/2007/2139

Between:
Secretary Of State For The Home Department
appellant defendant
and
The Queen On The Application Of Campaign To End All Animal Experiments (trading As The British Union For The Abolition Of Vivisection)
respondent claimant

Nigel Giffin Qc And Julian Milford (instructed By Treasury Solicitors) For The Appellant

Richard Drabble Qc And Simon Cox (instructed By David Thomas) For The Respondent

Hearing Dates: 12th And 13th March 2008

Lord Justice May

Introduction

1

Some decisions of a public body taken under statutory authority are intrinsically less amenable to a successful judicial review application than others. These proceedings are an illustration of this. The British Union for the Abolition of Vivisection, as claimants, persuaded Mitting J that a Chief Inspector appointed by the Secretary of State under the Animals (Scientific Procedures) Act 1986 had misconstrued statutory Guidance when he reported in a Review of October 2002 on Aspects of Non-human Primate Research at Cambridge University; and that the Secretary of State made the same errors of misconstruction in adopting the Chief Inspector's Review. Mitting J made a declaration accordingly on 14 th September 2007, against which both the Secretary of State and the Chief Inspector appeal. The claimants cross—appeal from the judge's dismissal of another part of their case. Yet the nature of the claimants' case is to challenge a composite scientific judgment based more upon an expert analysis of scientific material than upon the application of hard-edged terms of a document amenable to lawyers' construction. The Guidance is susceptible to lawyers' analysis; but it is not a tax statute nor intrinsically difficult to understand. Its application requires scientific judgment. The scientific judgment is not immune from lawyers' analysis. But the court must be careful not to substitute its own inexpert view of the science for a tenable expert opinion. The appellants say that the judge was wrong to find that the Chief Inspector had misconstrued the Guidance; and wrong to find in consequence or at all that his Review reached a perverse conclusion. In my view, absent material misconstruction, the court should be very slow to conclude that this expert and experienced Chief Inspector reached a perverse scientific conclusion.

2

Mitting J's judgment may be found at [2007] EWHC 1964 (Admin). It may be referred to for details which I shall not need to repeat in this judgment.

The Animals (Scientific Procedures) Act 1986

3

The 1986 Act, which repealed the Cruelty to Animals Act 1876 (see section 27(1) of the 1986 Act), provides for the protection of animals used for experimental or other scientific purposes. It aims to protect animals from unjustified and unnecessary pain, suffering or distress and paragraph 5.42 of the Guidance on the Operation of the 1986 Act, published and presented to Parliament under section 21 of the Act, says that the Secretary of State will not license any procedure likely to cause severe pain or distress which cannot be alleviated. By section 10(2A) of the Act, licence conditions are to ensure that authorised procedures are carried out in accordance with Article 8 of Council Directive No. 86/609/EEC. This provides that, if anaesthesia is not possible, analgesics or other appropriate methods should be used in order to ensure as far as possible that pain, suffering, distress or harm are limited and that in any event the animal is not subject to severe pain, distress or suffering. One means of preventing unacceptable pain and suffering is by humane killing, for which appropriate methods are detailed in Schedule 1 to the Act.

4

Under the 1986 Act, a regulated procedure is one which may cause a protected animal pain, suffering, distress or lasting harm (section 2(1)). To determine whether a procedure may have this effect, the use of any procedure for rendering an animal insentient is to be disregarded, and such a procedure is itself a regulated procedure (section 2(4)). Humane killing is not a regulated procedure (section 2(7)). To be permitted to apply a regulated procedure, a person has to hold a relevant qualifying personal licence; the procedure has to have an authorising project licence specifying a programme of work; and the place has to be a designated establishment (section 3). A person who contravenes section 3 (or some other sections) is guilty of an offence (section 22(1)).

5

Section 4 provides for personal licences. Section 5 provides that a project licence

“… is a licence granted by the Secretary of State specifying a programme of work and authorising the application, as part of that programme, of specified regulated procedures to animals of specified descriptions at a specified place or specified places.”

Section 5(3) restricts the purposes for which a project licence may be granted. Section 5(4) requires the Secretary of State, in determining whether or on what terms to grant a project licence, to weigh the likely adverse effects on the animals against the benefit likely to accrue from the specified programme. It is agreed that, for this and other purposes, humane killing is not an adverse effect. Section 5(5) places restrictions on the grant of a project licence. Section 5(6) places special restrictions on a project licence authorising the use of cats, dogs, primates or equidae.

6

By section 6, a place may be designated by a certificate of the Secretary of State as a scientific procedure establishment. The certificate has to specify a person responsible for the day to day care of the protected animals there, and a veterinary surgeon or other suitably qualified person to provide advice on their health and welfare (section 6(5)). If these persons are concerned about an animal's health or welfare, they have to notify the personal licence holder or, if this is not practical, to take steps to ensure that the animal is cared for and, if necessary, humanely killed (section 6(6)).

7

Section 18 requires the Secretary of State to appoint qualified medical or veterinary inspectors for the purposes of the Act. Section 18(2) and (3) provide:

“(2) It shall be the duty of an inspector-

(a) to advise the Secretary of State on applications for personal and project licences, on requests for their variation or revocation and on their periodical review;

(b) to advise him on applications for certificates under this Act and on requests for their variation or revocation;

(c) to visit places where regulated procedures are carried out for the purpose of determining whether those procedures are authorised by the requisite licences and whether the conditions of those licenses are being complied with;

(d) to visit designated establishments for the purpose of determining whether the conditions of the certificates in respect of those establishments are being complied with;

(e) to report to the Secretary of State any case in which any provision of this Act or any condition of a licence or certificate under this Act has not been or is not being complied with and to advise him on the action to be taken in any such case.

(3) If an inspector considers that a protected animal is undergoing excessive suffering he may require it to be immediately killed by a method appropriate to the animal under Schedule 1 to this Act or by such other method as may be authorised by any personal licence held by the person to whom the requirement is addressed.”

8

Section 19 establishes the Animal Procedures Committee whose duty under section 20 is to advise the Secretary of State on such matters concerned with the Act and his functions under it as the Committee may determine or as may be referred to it by the Secretary of State.

9

By section 9, the Secretary of State has to consult one of the inspectors, and may consult an independent assessor or the Animals Procedures Committee, before granting a licence or a certificate. Section 10(1) provides that a licence or certificate may contain conditions. By section 10(2), a personal licence has to include a condition requiring the licence holder to take precautions to prevent or reduce to the minimum consistent with the purposes of the authorised procedures any pain, distress or discomfort to the animals; and an “inviolable termination condition” specifying circumstances in which a protected animal must be killed humanely. See also section 10(3D) for obligatory conditions of a project licence. The conditions of a certificate for a designated establishment under sections 6 and 7 have to include appropriate conditions for the general care and accommodation of protected animals, including appropriate conditions to ensure:

“(d) that the well-being and state of health of such animals are monitored by a suitably qualified person in order to prevent pain or avoidable suffering, distress or lasting harm; and

(e) that arrangements are made to ensure that any defect or suffering discovered is eliminated as quickly as possible.”

10

Appendix B to the Guidance contains standard conditions for designated scientific procedure establishments. These include that the establishment has to be appropriately staffed at all times to ensure the well being of the protected animals (paragraph 4); that records have to be maintained, in a format acceptable to the Secretary of State, of the source, use and final...

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