Secretary of State for the Home Department v Campaign To End All Animal Experiments (t/a the British Union for the Abolition of Vivisection), R (on the application of)

Statutory guidance classifying the severity of animal experiments calls for a composite scientific judgment based on the guidance as a whole. A reviewing court should respect a tenable expert assessment and should not substitute its own inexpert view.

Anticipated humane killing is relevant to severity, but is neither an adverse effect nor necessarily a significant indicator that a protocol requires the highest licensable classification. The decisive question concerns the adverse effects experienced before death. A requirement that a substantial classification be used if even one animal is expected to suffer substantial effects is prospective. An unexpected death does not by itself invalidate the original classification or require reclassification, particularly where the protocol is corrected and the problem does not recur.

The claimant challenged the Secretary of State’s adoption of a Chief Inspector’s review of experiments on marmosets conducted under project licences granted pursuant to the Animals (Scientific Procedures) Act 1986. The review concluded that the protocols’ severity limits had been properly assigned and that the establishment generally provided adequate animal care.

Mitting J, in [2007] EWHC 1964 (Admin), declared that the Chief Inspector and Secretary of State had misconstrued paragraphs 5.40–5.42 of the statutory Guidance when assessing whether protocols required a “substantial” rather than “moderate” severity limit. He dismissed the challenge to the conclusion that overnight care arrangements were adequate.

The Secretary of State appealed against the declaration. The claimant cross-appealed on overnight monitoring and care. The central questions were whether the Chief Inspector had made errors of law concerning humane killing and the “single animal” requirement, and whether his conclusions about animal care were irrational.

1. The Secretary of State’s appeal was allowed and the claimant’s cross-appeal was dismissed. May LJ gave the judgment, with which Dyson and Moses LJJ agreed.

2. The Guidance required a composite and comparative scientific assessment of the descriptions of mild, moderate and substantial severity. Its ordinary language had to be read in the context of paragraph 5.42 as a whole. Although the court could examine the Guidance for legal error, the application of its categories was primarily a matter of informed scientific judgment. The court should therefore be very slow to characterise a tenable expert scientific conclusion as perverse or to substitute its own inexpert assessment.

3. Anticipated humane killing was a relevant part of the overall assessment, but it was not itself an adverse effect. It was neither necessarily determinative nor always a significant indicator of “substantial” severity. Its purpose was to prevent or end adverse effects. Whether the animal’s condition before humane killing amounted to a major departure from its usual health or well-being remained a matter of expert scientific judgment. The Chief Inspector had not been shown to have misunderstood that principle.

4. The so-called “single animal” requirement concerned what was expected when the protocol was assessed. It did not mean that one or more unexpected deaths necessarily invalidated the original severity classification. Nor did a small number of deaths necessarily require later reclassification where the procedure was amended and the problem did not recur. Actual experience could justify reassessment, but the Chief Inspector’s findings did not establish that he had misapplied the Guidance.

5. The judge had not found that the Chief Inspector’s scientific conclusions were independently perverse. Once the supposed legal errors were rejected, the declaration could not stand. A finding of perversity would have required an intensive examination of expert scientific material that was inappropriate on the evidence and had not been undertaken.

6. On the cross-appeal, the Chief Inspector was entitled to assess animal care using all the documents, observations and interviews available to him. He could accept that unrecorded overnight monitoring occurred and consider positive reports and daytime records. The absence of complete overnight records and possible errors concerning a small number of animals did not make irrational his general conclusion that care was adequate.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 417, allowed the Secretary of State’s appeal, set aside the declaration concerning misconstruction of the Guidance, and dismissed the claimant’s cross-appeal.
2. High Court, Administrative Court: Mitting J, in [2007] EWHC 1964 (Admin), declared that the Chief Inspector and Secretary of State had misconstrued paragraphs 5.40–5.42 of the Guidance issued under the Animals (Scientific Procedures) Act 1986. He dismissed the remainder of the claim, including the challenge concerning overnight animal care.