R v Crown Prosecution Service

Where domestic criminal regulations enforce standards imposed by a directly effective EU regulation, the content of those standards is determined through EU principles of interpretation. Domestic presumptions concerning mens rea cannot lower an EU standard.

Obligations requiring slaughterhouse operators to spare animals avoidable suffering and systematically to sever specified blood vessels impose strict liability. The prosecution need not prove intention, negligence or another culpable act or omission by the operator. It must nevertheless prove every factual element, including that the animal experienced pain, distress or suffering where that is alleged.

A recital may illuminate an EU measure’s purpose, but ambiguity in a recital cannot derogate from or contradict an unambiguous operative provision.

A poultry slaughterhouse operator was prosecuted under regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015. Three chickens had entered a scalding tank alive after their necks were not properly cut. The charges alleged breaches of article 3(1), and article 15(1) read with Annex III, point 3.2, of Regulation (EC) No 1099/2009 on the protection of animals at the time of killing.

The District Judge ruled that the offences imposed strict liability. The Divisional Court dismissed the operator’s judicial review claim in [2018] EWHC 3122 (Admin), agreeing that neither mens rea nor culpability had to be proved.

The operator appealed. The central issues were whether the applicable standards were governed by EU or domestic interpretative principles and whether the prosecution had to prove intention, negligence or another culpable act or omission by the business operator.

1. The appeal was dismissed unanimously. Lord Burrows delivered the judgment, with which Lord Reed, Lord Lloyd-Jones, Lord Kitchin and Lord Hamblen agreed. Both offences imposed strict liability on the business operator. The criminal proceedings were to continue before the District Judge for final determination.

2. The operator had only one interpretative opportunity. Regulation (EC) No 1099/2009 on the protection of animals at the time of killing directly imposed the relevant animal-welfare duties, while regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 supplied the domestic criminal penalty. Article 23 permitted member states to choose effective, proportionate and dissuasive penalties, but not to lower the EU standards. If the EU measure imposed strict liability, the domestic regulations had to do likewise.

3. EU principles of legislative interpretation therefore governed. The court had to consider the wording, context, purpose and general scheme of the EU measure, with particular emphasis on an interpretation that fulfilled its objectives and secured uniform standards. Domestic canons governing penal statutes, including the presumption that an offence requires mens rea, were displaced. Strict criminal liability was not itself contrary to EU law.

4. Article 15(1), read with Annex III, point 3.2, imposed strict liability. The command that operators “shall ensure” compliance, including systematic severance of the specified arteries or vessels, contained no requirement of intention or negligence. Strict liability promoted uniformity, enforceability and observance of animal-welfare standards. It also avoided the practical difficulty of identifying a culpable operative within mechanical or collective processes.

5. Article 3(1) likewise imposed strict liability. Its requirement that animals be spared avoidable pain, distress or suffering, reinforced by the language of article 3(2) and (3), did not import fault. A breach of a specific operational rule designed to prevent suffering could establish avoidability. The prosecution must still prove that pain, distress or suffering was experienced; breach of the operational rule created no irrebuttable presumption or deeming rule on that factual question.

6. The reference to negligence or intention in recital (2) did not alter article 3(1). It indicated that breach would usually involve fault, or gave examples of how avoidable suffering might be induced. A recital may assist interpretation but cannot derogate from clear operative wording. The previous EU regime also supported the conclusion that the replacement measure had not reduced the governing animal-welfare standard.

1. United Kingdom Supreme Court: The operator’s appeal was dismissed unanimously. The criminal proceedings were directed to continue before the District Judge.
2. Divisional Court of the Queen’s Bench Division: In [2018] EWHC 3122 (Admin), Hickinbottom LJ and Jay J dismissed the application for judicial review. They held that the offences imposed strict liability and required no proof of mens rea or culpability. The court also held that judicial review, rather than the case-stated procedure, was appropriate because guilt had not been finally determined.
3. Telford Magistrates’ Court: District Judge Cadbury ruled as a preliminary issue that the offences were offences of strict liability. No final determination of guilt had yet been made.