R (Compassion in World Farming Ltd) v Secretary of State for the Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,Lord Justice Sedley,Lord Justice Judge |
| Judgment Date | 29 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1009 |
| Docket Number | Case No: C1/2003/2699 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2004 |
[2004] EWCA Civ 1009
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HON MR JUSTICE NEWMAN
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Right Honourable Lord Justice Judge
The Right Honourable Lord Justice May and
The Right Honourable Lord Justice Sedley
Case No: C1/2003/2699
CO/1779/2003
Rabinder Singh QC and Janet Kentridge (instructed by Bindmans) for the Claimant
David Anderson QC and Marie Demetriou (instructed by DEFRA) for the Defendant
Lord Justice May
Introduction
It is not easy to regulate the well-being of chickens. That may seem a cynical or dismissive introduction. But it is close to the heart of this appeal. Philosophers since at least Aristotle have had similar difficulty in defining and measuring human happiness. For chickens, Dr P.M. Hocking, of the Roslin Institute in Scotland presented a paper at the University of Bristol in 2003 in which he said:
"The objective of assessing the subjective feeling of stress associated with hunger in feed restricted broiler breeders is problematic and has not been resolved."
The claimants are concerned for the welfare of broiler chickens. They are not concerned to try to stop the domestic and worldwide production of broiler chickens by intensive farming methods. They are concerned to alleviate features detrimental to the welfare of broiler chickens which arise because selective breeding has evolved fast-growing genotypes. The claimants' view is that features detrimental to the welfare of the birds could and should be alleviated by using genotypes which do not mature so quickly. Their case in the present proceedings is, however, aimed only indirectly in this direction. Their case concerns broiler breeder chickens. They seek a determination that the Secretary of State ("DEFRA") has a policy which permits those who rear broiler breeders to do so in contravention of a regulation relating to the manner in which they are fed.
This is an appeal from part of a decision in judicial review proceedings of Newman J on 27 th November 2003. Maurice Kay LJ gave permission to appeal.
Newman J's comprehensive judgment [2003] EWHC 2850 (Admin) covers much more detail than is necessary for this appeal. His judgment may be referred to to amplify this judgment. In paragraphs 6–10 of his judgment, Newman J describes the relevant position and activities of the parties to the proceedings and introduces certain statutory provisions. He refers to an independent advisory body called the Farm Animal Welfare Council (FAWC), which the Government established in 1979 as an independent advisory body. It has investigated the welfare of broiler chickens and made recommendations which have been acted upon.
Facts
Newman J's factual introduction was as follows:
"1. Approximately 44 billion broiler chickens are reared worldwide each year. There are two groups of broiler chickens: ordinary broilers, reared for their meat, and the breeding flock whose role it is to produce the chicks which will be killed for their meat. In 2002 the United Kingdom reared approximately 810,000,000 broilers for meat and approximately 680,000,000 female breeder chicks. Among the Member States of the European Union, France's output is somewhat higher than the United Kingdom and Spain comes third. In some Member States the number of female breeders reared is significantly lower than the number reared for meat. From the data for 2002 Greece provides an example. It reared 102,000,000 meat chickens but no female breeders. From this single example and a volume of other material it is clear that there is a market in broilers within the European Union. …
2. Approximately 97% of all the broilers in the European Union are called 'fast-growing'. A fast-growing broiler is derived from one or other of a few breeds available worldwide, in particular, Aviagen, Cobb and Arbor Acres.
3. Nearly all broilers reared in the United Kingdom are kept in factory farms. Broiler chickens reared for their meat reach their slaughter weight, typically around 2 kg, within about 40 days of being hatched. They would not reach adulthood until about 18 to 24 weeks of age. Broilers are thus very young animals for the whole of their fast-growing period. By selective breeding, the length of time which broiler chicks take to grow to 2 kg has been approximately halved in the last 30 years. The reduction in the period of time taken to produce a 2 kg broiler has been mainly achieved through selective breeding for improved growth rate and meat yield, but selection against diseases, susceptibility and advances in nutrition, hygiene, housing and husbandry and disease control have also played a role. There is a difference of opinion between the Claimant and the Defendant, which it is not necessary to resolve, as to the extent of the impact of selective "improvements" (in disease control and so forth) over selective breeding.
4. Both male and female breeders are subject to a restricted feeding regime for their first few weeks of life – about 20 days to the point of lay. This is important to the industry for if female broiler breeders are fed ad libitum then egg production and hatchability are poor and mortality is high. Feed restriction controls ovulation rate and restores normal function to the reproductive process. After their first weeks of being broody and after the point of lay, their feed is increased but controlled. It must be controlled to support the peak of egg production.
5. It is not in dispute that the restricted feeding of broiler breeders results in hunger, but there is a significant dispute about what 'hunger' means, when applied to broiler breeders, and further an issue as to whether the state of "hunger" disclosed by the evidence infringes the Directive and is contrary to domestic law."
Legislation and regulations
Newman J referred extensively to and quoted from relevant European and domestic legislation in paragraphs 11–22 of his judgment. These may be referred to. A more abbreviated reference is sufficient for the purposes of this appeal.
On 10 th March 1976, member states of the Council of Europe signed the European Convention for the Protection of Animals Kept for Farming Purposes ( ETS 87) . This applied to the keeping, care and housing of animals, and in particular to animals in modern intensive stock-farming systems. The Convention expressed itself as open to signature by the European Economic Community. There was a Protocol of Amendment to this Convention dated 6 th February 1992.
On 20 th July 1998, the Council of the European Union adopted Council Directive 98/58/EC concerning the protection of animals kept for farming purposes. The Directive was to give effect to the principles laid down in the Convention. The Directive laid down minimum standards for the protection of animals bred or kept for farming purposes (Article 1) . It required member states to ensure that the conditions under which animals are bred or kept comply with the provisions set out in its Annex (Article 4) .
The provisions of the Directive including its Annex were transposed with certain permitted additions into domestic legislation by the Welfare of Farmed Animals (England) Regulations 2000 (SI 2000 No 1870). These regulations are made under section 2 of the Agriculture (Miscellaneous Provisions) Act 1968. There is nothing in the Directive directly relevant to this appeal which is not transposed into the domestic legislation.
Section 2(2) of the 1968 Act provides that regulations may provide that a person who contravenes or fails to comply with specified provisions of the regulations shall be guilty of an offence. Section 7(1) provides that a person guilty of an offence under section 2 shall be liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale.
Section 3 of the 1968 Act empowers ministers to prepare codes containing such recommendations with respect to the welfare of livestock situated on agricultural land as they consider proper for the guidance of persons concerned with livestock. A code prepared under the section has to be laid before both Houses of Parliament for approval. Paragraph 10 of the 2000 regulations requires those attending to animals to have access to and be acquainted with all relevant statutory welfare codes and to receive instruction and guidance on them.
Paragraph 3 of the 2000 regulations provides:
"(1) Owners and keepers of animals shall take all reasonable steps –
(a) to ensure the welfare of the animals under their care; and
(b) to ensure that the animals are not caused any unnecessary pain, suffering or injury.
(2) Owners and keepers of animals … shall take all reasonable steps to ensure that the conditions under which the animals are bred or kept comply with the requirements set out in Schedule 1."
Paragraph 13 of the 2000 regulations provides that a person who, without lawful authority or excuse, contravenes or fails to comply with any provision of the regulations shall be guilty of an offence under section 2 of the 1968 Act. Paragraph 13(2) provides:
"In any proceedings against an owner or keeper of animals for a failure to comply with regulations 3( 1) or 3(2) …, the owner or keeper, as the case may be, may rely on his compliance with any relevant recommendation contained in a statutory welfare code as tending to establish his compliance with...
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