R (Suryananda) v Welsh Ministers
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas,Lord Justice Lloyd,Lord Justice Pill |
| Judgment Date | 23 July 2007 |
| Neutral Citation | [2007] EWCA Civ 893 |
| Docket Number | Case No: C1/2007/1589 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 July 2007 |
[2007] EWCA Civ 893
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
(HIS HONOUR JUDGE HICKINBOTTOM)
Lord Justice Pill
Lord Justice Thomas and
Lord Justice Lloyd
Case No: C1/2007/1589
Mr Crow QC and Joanne Clements (instructed by Treasury Solicitors) appeared on behalf of the Appellants.
Mr M Hoskins and Ms Lesser (instructed by Messrs Bindman & Partners) appeared on behalf of the Respondent.
This is an appeal against the decision of HHJ Higginbottom sitting as a Deputy High Court Judge on 16 July 2007 at the Cardiff Civil Justice Centre. The judge quashed a decision of the Welsh Assembly Government, Llywodraeth Cynulliad Cymru, sued as the Welsh Ministers (“the appellants”) and made by the Minister of Sustainability and Rural Development (“the Minister”) to order the slaughter of the bullock, Shambo, owned by the Community of the Many Names of God (“the Community”). The order was confirmed on 3 July 2004 under discretionary powers contained in section 32 of the Animal Health Act 1981 (“the 1981 Act”) as applied by Article 4 of the Tuberculosis (Wales) Order 2006. The application to quash was made by Swami Surayanda, known as Brother Michael, as Director of Finance and one of the trustees of the Community.
The background
As described by the judge, the Community are a registered charity whose objects include promoting the teachings of Krishna. In 1973 the founder of the Community purchased a farm at Skanda Vale, Llanpumsaint, where a monastic centre was established. Llanpumsaint is located in an agricultural area in the heart of rural west Wales, north of the town of Carmarthen (Caerfyddin). The farm was transferred to the Community in 1976 and an adjoining farm purchased in 1978. Two former farmhouses have been converted into temples, where public worship is held, and a third temple was built in 1999. There are about 30 permanent residents, 25 of whom are monks or nuns. They received over 90,000 pilgrims and visitors last year. 92 acres are owned. Much of the land is in agricultural use but that use is wholly ancillary to the religious use of Skanda Vale. Agriculture is not conducted on a commercial basis.
It is stated by the Community and accepted by the appellants that the preservation of life is a fundamental tenet of the Community's beliefs. Slaughter of any animal in the Community's care would be a direct violation of its spiritual values. Shambo is the temple bullock and slaughter would be a particularly sacrilegious act, a serious desecration of the temple, and comparable, in the Community's view, to the killing of a human being. The Community's beliefs in relation to the religious significance of Shambo are, as the judge held, “patently sincere and most deeply held”.
Bovine tuberculosis (“bTB”) has been described in the Government Veterinary Journal for September 2006 as:
“The most difficult animal health programme we face in Great Britain today.”
It is described by Dr Christianne Glossop the Chief Veterinary Officer for Wales at paragraph 9 of her statement:
“TB in cattle is a serious, chronic, debilitating disease arising from infection by Mycobacterium bovis (M. bovis). The periods between infection and developing clinical disease vary from one individual to another but the development of clinical signs may take years. Some infected individuals do not develop clinical signs of TB. However, infected cattle can shed M. bovis at an early stage. This means that the infected animal may release M. bovis through aerosol, respiratory secretions (e.g. mucus), faeces, urine, milk and semen. Clinically normal but infected animals may shed M. bovis.”
The incidence in Great Britain of the disease is one of the highest in the European Union, and there has been an upward trend. In February 2003 the United Kingdom Government announced its intention to review its strategy to deal with the disease, and as a result a “Government strategic framework for the sustainable control of bovine tuberculosis (bTB) in GB” was published in 2005. A map published as figure 5 in the document shows a high concentration of new bTB breakdowns in south west Wales, by comparison not only with other parts of Wales but with Great Britain as a whole. In the September 2006 Veterinary Journal, which was a special bTB edition, it was stated that the problem is severe in those areas where the disease is concentrated, such as south west Wales. That is confirmed by figures given to the court showing the proportion of slaughters performed in Wales and of those the high proportion in south west Wales.
The strategy document opens with this introduction:
“Bovine TB is one of the most difficult animal health problems that the farming industry faces in GB today. The scale of the challenge facing both Government and industry in seeking to reverse the long-term upward disease trend is significant. The Government recognises it has a role in leading and facilitating the changes required to make this happen.”
The government's objective is that of controlling with a view to eliminating bTB. The policy by which that objective is to be achieved is, as stated by the judge at paragraph 10 of his judgment, one of surveillance and slaughter. Cattle are routinely tested using the single intradermal comparative cervical tuberculin test (“tuberculin skin test”) approved by the World Organisation of Animal Health and the European Commission as a primary effective tool for the diagnosis of tuberculosis in cattle. The administrations for England, Wales and Scotland have jointly issued a document entitled “Dealing with Bovine TB in your Herd”, last updated in April 2007. That describes, amongst other things, the procedure by which bTB is detected in cattle. Under the heading “How is bTB detected in live cattle?”, it is stated at section 3:
“The cornerstone of TB control in cattle is the accurate detection and removal of animals infected with M. bovis before they become infectious to other animals. Importantly, infected cattle can become infectious long before they exhibit any obvious clinical signs or lesions typical of TB detectable even with the most careful veterinary examination. Even if present, the clinical signs of TB in cattle are seldom typical. As a result, effective ante mortem diagnosis of bovine TB must rely on detecting infection with M. bovis rather than disease. [The words “infection” and “disease” being emphasised].
The two types of test currently approved in the European Union for the diagnosis of TB in live cattle are based on this principle. The intradermal tuberculin ( skin) tests are the primary screening tests, whilst the gamma-interferon assay is only approved as an ancillary diagnostic tool.
What is a reactor?
A reactor is an animal that has failed a) the comparative intradermal tuberculin skin test (the variant of the tuberculin test used in the British Isles) or b) any other relevant test, including the gamma-interferon blood test … In other words, these are cattle that give a test result consistent with their being affected with bTB.
[…]
When one or more reactors are found in a herd, this is known as a TB 'incident' or a herd 'breakdown'. Animal Health will aim to remove your reactor animals as quickly as possible to help control the disease and help your herd regain its TB free status.
[…]
What happens when a reactor is found?
Your herd will be placed under movement restrictions and we will value and slaughter the reactors.
[…]
What happens to reactor animals?
You must isolate them immediately from the rest of the herd until they are slaughtered.
[…]
Why complete a post-mortem examination?
By examining the carcase we may be able to quickly confirm whether your animal had bTB and, if so, whether it was in the early or advanced stages of the disease. If we confirm bTB in one or more of your reactors, we will review the tuberculin test results again, lowering the cut-off point for an animal to be declared a reactor. (This is known as 'severe interpretation') and may result in further animals being classed as reactors. The post-mortem findings also help us decide how much more testing is needed in your herd and in neighbouring herds, and whether we should trace any animals you may have bought or sold before the TB restrictions came into force.”
The policy and the reasons for it were more fully explained in veterinary evidence which was placed before the judge. Dr Glossop stated at paragraph 23 of her statement:
“One of the key principles of infectious disease control is rapid, early identification of infection. This is supported by a policy for eliminating infection from the population (i.e. herd, area, country). In the absence of accepted and efficacious treatment for bovine TB … elimination of infection is achieved by the slaughter of animals exposed to infection.”
Paragraph 99:
“The current 'surveillance and slaughter' policy is in place to eliminate the risk of an infected animal spreading infection to others. In the current state of veterinary knowledge, treatment cannot achieve this objective. Further, as there is no effective treatment, there is a strong likelihood that the reactor would gradually start to exhibit clinical signs of TB, for which there would be no treatment. This is unacceptable practice and totally against the Animal Welfare Act (England and Wales) 2006.”
These were Dr Glossop's conclusions:
“102. The Government's 'Surveillance and Slaughter' policy for the control of bovine TB aims to eliminate the...
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