The Supreme Court held that two offences charged against a poultry slaughterhouse operator, arising from chickens entering the scalding tank while still alive, are offences of strict liability under domestic regulations implementing EU animal-welfare rules. The prosecution need not prove knowledge of the circumstances or any negligence or other culpability by the business operator. The appeal was dismissed so that the prosecution can continue on that basis.
Highbury operated a poultry slaughterhouse. The charges arose from three incidents in which the required checks before scalding had not been completed and birds were still alive.
The first charge concerned avoidable pain, distress or suffering under article 3(1) of Regulation 1099/2009. The second concerned safeguards for bleeding and checking for signs of life under article 15 and Annex III. English regulations made a contravention of those duties an offence.
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The issue before the courts
The company argued as a preliminary point that the prosecution had to prove mens rea, meaning knowledge of the factual circumstances, and a culpable act or omission. District Judge Cadbury, at Telford Magistrates’ Court, ruled on 9 January 2018 that the offences were of strict liability. He stated a case, but the company also sought judicial review because there had been no final determination of guilt. The Divisional Court held that judicial review was the appropriate procedure, and dismissed the claim. Hickinbottom LJ and Jay J agreed that the offences require neither mens rea nor culpability. The company appealed to the Supreme Court. There was no appeal against the procedural decision.
Why EU law governs the standard
Lord Burrows, with whom Lord Reed, Lord Lloyd-Jones, Lord Kitchin and Lord Hamblen agreed, rejected the suggestion that the company could rely first on the EU Regulation and then, separately, on the domestic presumption that a crime requires mens rea. An EU Regulation has direct effect, but the EU generally cannot itself create criminal offences. Article 23 requires member states to provide penalties that are effective, proportionate and dissuasive. England did so by criminal offences. Member states may not lower the EU standard because they choose criminal penalties. Regulation 30(1)(g) simply makes contravention of the specified EU provisions an offence, so the domestic offence takes whatever standard the EU Regulation imposes.
The relevant principles are therefore the EU principles of legislative interpretation, not English canons of construction. Those principles look to the wording, context and objectives, with a teleological emphasis on giving effect to the purpose of the measure. Recitals may be considered, but an unclear recital cannot contradict a clear operative provision. Strict criminal liability is not contrary to EU law. In Public Prosecutor v Hansen & Son I/S the Court of Justice accepted that a member state could impose strict criminal liability on an employer for employees’ breaches of drivers’ hours rules, as a proportionate way of securing compliance.
The bleeding offence
Article 15(1) requires business operators to ensure compliance with the Annex III rules. Point 3.2 states in precise terms that the arteries or vessels shall be systematically severed and that scalding shall follow only after verification that signs of life are absent. Nothing in the language or context limits liability to intentional or negligent breach. Strict liability also serves the Regulation’s purpose: it creates a clear, uniform and readily enforceable standard. A negligence standard would be uncertain and difficult to apply, especially where the process is mechanical and the relevant individual hard to identify. Provisions elsewhere in the Regulation that require monitoring or due diligence are consistent with other provisions going further.
The duty to spare avoidable suffering
Article 3(1) says that animals shall be spared any avoidable pain, distress or suffering. Its passive form leaves no obvious place for a mental element. Suffering is avoidable where a specific operational rule designed to prevent it has been broken. Articles 3(2) and 3(3), which require operators to take necessary measures and to operate facilities so as to ensure compliance, support that reading.
The company relied on recital (2), which says that pain, distress or suffering should be considered avoidable where an operator breaches the Regulation or fails to reflect the state of the art, thereby inducing that suffering by negligence or intention. Lord Burrows held that the recital explains the general requirement in article 3 and does not qualify specific strict duties such as the bleeding rule. Even for article 3(1), the reference to negligence or intention does not make fault an essential element of every breach. It indicates that a breach will usually involve fault, or gives examples, and the necessary causal link between breach and suffering remains. Because article 3(1) is clear, the ambiguous recital cannot override it.
The predecessor Directive 93/119/EC used similar language about sparing avoidable pain or suffering, without treating negligence or intention as essential. It is unlikely that the later Regulation was meant to weaken those requirements. Lord Burrows also disagreed with any suggestion by Hickinbottom LJ that breach of the bleeding rule irrebuttably deems the bird to have experienced pain, distress or suffering. If experience of suffering is in doubt on the first charge, the prosecution must prove it in the ordinary way.
Both offences therefore impose strict liability. The Regulation is a code with which the operator must comply. The Divisional Court’s further conclusion, applying domestic law and treating the presumption of mens rea as rebutted, was unnecessary. Had domestic law been the right framework, Lord Burrows would have agreed that the presumption was rebutted, but that was not the correct approach. The point was acte clair.
Verdict: The Supreme Court unanimously dismissed the company’s appeal. Both offences imposed strict liability on the business operator. The prosecution still had to prove the breaches. The criminal proceedings returned to the district judge for determination.
