Compassion In World Farming Ltd, R (on the application of) v Secretary Of State For Environment, Food & Rural Affairs

Under paragraph 22 of Schedule 1 to the Welfare of Farmed Animals (England) Regulations 2000, the obligation to promote positive well-being is qualified by the requirement to take all reasonable steps. It is not a discrete strict duty requiring every welfare consideration to be achieved independently. Positive well-being is a composite state requiring a practical balance where feeding choices have competing effects. Persistent hunger during part of immature life does not, without more, establish unlawful non-compliance where the diet is wholesome, appropriate to age and species, maintains good health and meets nutritional needs. A court cannot use this provision to compel a public authority to require different genotypes or to order general prosecutions on general evidence alone.

Compassion In World Farming Limited brought judicial review proceedings challenging DEFRA’s alleged policy of not prosecuting owners or keepers who subjected broiler breeder chickens to restricted feeding. The claimants argued that persistent hunger breached paragraph 22 of Schedule 1 to the Welfare of Farmed Animals (England) Regulations 2000 and that DEFRA’s enforcement policy was unlawful.

Newman J dismissed the relevant ground in the Administrative Court in [2003] EWHC 2850 (Admin). The claimants appealed, seeking declarations and initially a mandatory order requiring prosecution. The central issue was whether restricted feeding, producing persistent hunger but also reducing serious health risks, necessarily contravened the regulations.

1. Appeal dismissed. May LJ gave the principal judgment. Sedley LJ agreed with the result and reasoning, subject to an additional observation. Judge LJ agreed that the appeal should be dismissed for May LJ’s reasons.
2. Paragraph 22 of Schedule 1 must be read with regulation 3(2). Owners and keepers must take all reasonable steps to feed animals a wholesome and appropriate diet, sufficient to maintain good health, satisfy nutritional needs and promote positive well-being. The obligation is qualified. The verb promote has latitude, and the final words of paragraph 22 do not impose a separate strict obligation.
3. Positive well-being is a composite state. Compliance requires a balance between competing welfare effects. Restricted feeding may cause persistent hunger, but increased feeding may cause obesity, ill health, premature death or impaired reproductive capacity. Where the diet satisfies the other requirements and the birds remain healthy and nutritionally sustained, persistent hunger during part of their immature lives does not, without more, establish a contravention.
4. The assessment concerns the actual animals and genotype being kept. Paragraph 22 cannot be used to compel DEFRA to require owners and keepers to use different, slower-growing genotypes. That would be a policy question requiring different legislation. Paragraph 29 was not open for renewed reliance because it had been abandoned and was not properly raised on the appeal.
5. The court would rarely, if ever, order a public authority to prosecute. General evidence could not establish that all owners or keepers were acting unlawfully, particularly where no individual owner or keeper was represented. Particular prosecutions remained possible on additional facts relating to particular flocks. The Directive added no relevant content stronger than the domestic regulations.
6. Sedley LJ added that future evidence showing an identifiable deficit in net well-being attributable to a measurable feeding shortfall could require DEFRA to reconsider prosecution.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 1009, the appeal was dismissed.
• Administrative Court, Queen’s Bench Division: Newman J’s judgment in [2003] EWHC 2850 (Admin) dismissed the challenged ground of judicial review. A separate ground was withdrawn, and the first ground was not pursued on appeal.