R (on the application of Highbury Poultry Farm Produce Ltd) vs. Crown Prosecution Service - (16 Oct 2020)

Negligence by the business operator does not have to be proved

Criminal

In facts of present case, Highbury Poultry Farm Produce Ltd. (“HPFPL”) operates a poultry slaughterhouse. The birds have their legs shackled to a moving line and are then, submitted to a number of sequential processes, including stunning, bleeding and scalding. On 31 August, 12 September and 5 October 2016, a chicken went into the scalding tank (where its feathers would be removed) while still alive because its neck had not been properly cut by a certified operative. HPFPL was charged with two offences in respect of each of the three incidents: (i) failure to comply with Article 3 of Regulation (EC) No. 1099/2009 (the “EU Regulation”), which required that animals should be spared avoidable suffering during their killing, contrary to Regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations, 2015 (the “WATOK Regulations 2015”); and (ii) failure to comply with Article 15(1) of the EU Regulation by failing to sever the carotid arteries and verify that, the animal presented no signs of life before scalding, contrary to Regulation 30(1)(g) of the WATOK Regulations, 2015.

The trial judge dismissed HPFPL’s argument that, Regulation 30(1)(g) of the WATOK Regulations required proof of mens rea or culpability on the part of the defendant. HPFPL challenged this ruling by way of judicial review. The Divisional Court found that there was a presumption that, the WATOK Regulations 2015 required proof of mens rea, but that this presumption was displaced, due to social concern regarding animal welfare. HPFPL appealed to the Supreme Court.

Both offences are offences of strict liability. Negligence by the business operator does not have to be proved. Regulation 30(1)(g) of the WATOK Regulations provides that, it is an offence to contravene the EU Regulation. Article 3(1) of the EU Regulation provides that, “Animals shall be spared any avoidable pain, distress or suffering during their killing and related operations.”

The EU Regulation has to be interpreted in accordance with EU law principles. The wording of Article 15(1), requiring the severing of the carotid arteries, suggests the imposition of strict liability. There is no hint that business operators shall be liable only if the operational rules are intentionally or negligently infringed. This interpretation is supported by the purpose of the provision. Strict liability imposes a clear and easily enforceable standard, uniform across the EU, and avoids the difficulty in pinpointing the individual upon whom the requisite state of mind must be attributed. Article 15(1) therefore imposes strict liability. The wording of Article 3(1), requiring animals to be spared any avoidable suffering during their killing, also suggests strict liability. Recital (2) to the EU Regulation, despite mentioning suffering being induced “by negligence or intention”, does not affect the wording of Article 3(1). It merely clarifies that a breach of Article 3(1) will usually entail fault.

The recitals to an EU regulation cannot be interpreted in such a way as to contradict the clear wording of that regulation. Further, the earlier incarnation of the EU Regulation, Directive 93/119/EEC, did not include the words “negligence or intention” in the relevant recital. It is highly unlikely that the EU would have made its animal welfare requirements less strict under the EU Regulation than under the Directive it replaced. Article 3(1) therefore also imposes strict liability. There is no requirement to prove negligence. Appeal dismissed.

Tags : STRICT LIABILITY NEGLIGENCE MENSREA