Royal Society for the Prevention of Cruelty To Animals (RSPCA), R (on the application of) v The Secretary of State for Environment, Food and Rural Affairs

A national measure permitting a non-immediate method of killing animals for disease control need not guarantee that unconsciousness and death will occur rapidly in every circumstance. The requirements in Annex E to the Council Directive 93/119/EC concern the taking of appropriate measures, including killing animals as soon as possible and preventing recovery of consciousness where applicable. They do not impose an absolute guarantee of success.

Where a measure is reserved for use as a last resort against a serious and potentially fatal disease, the court must consider animal welfare in its practical context. It should not substitute its view for the informed judgment of the competent authority on conflicting scientific and logistical evidence. A generally framed measure may satisfy proportionality and legal certainty where the circumstances cannot sensibly be prescribed in detail.

The RSPCA sought judicial review of the Secretary of State’s decision to introduce ventilation shutdown as an additional method for killing birds during disease-control operations. The method was added by the Welfare of Animals (Slaughter or Killing) (Amendment) (England) Regulations 2006 to Schedule 9 of the Welfare of Animals (Slaughter or Killing) Regulations 1995.

The claim alleged incompatibility with Article 10(1) and Annex E of Council Directive 93/119/EC, breach of proportionality principles, and insufficient legal certainty. The central issue was whether ventilation shutdown could lawfully be authorised as a last resort despite uncertainty about the speed of unconsciousness and death.

1. The claim was dismissed. Ventilation shutdown was lawfully permitted as a last-resort method for disease control.
2. Article 10(1) and Annex E of Council Directive 93/119/EC require appropriate measures to kill animals as soon as possible and to prevent recovery of consciousness where the method does not cause immediate death. They impose requirements directed to the means adopted, not a guarantee that the method will always produce rapid unconsciousness and death without further intervention.
3. The word “avoidable” in Article 3 did not require the Secretary of State to guarantee the absence of all distress in every possible emergency. The legal assessment had to account for the serious threat to human health, the need for rapid large-scale disease control, and the practical availability of alternatives.
4. The proportionality challenge failed. The court was not conducting a Wednesbury review and could not substitute its assessment of conflicting expert and logistical evidence for the informed judgment entrusted to the Secretary of State.
5. The measure was sufficiently certain. Written authorisation, a finding that other scheduled methods were impracticable, and direct official supervision provided an adequate legal framework. Detailed criteria for every possible outbreak would be impracticable and potentially counterproductive.
6. Article 11 was not a general derogation for mass disease-control killing; it was directed principally to animals requiring immediate killing for welfare reasons. No reference to the ECJ was necessary.