R v Crown Prosecution Service

Highbury Poultry Farm Produce Ltd (“HPFPL”) operates a poultry slaughterhouse in Shropshire under the approval of the Food Standards Agency. The average throughput is 75,000 chickens per day, equating to 19.5m or so chickens per annum. The birds have their legs shackled to a moving line and are then submitted to a number of sequential processes, including stunning, bleeding and scalding. On each of 31 August, 12 September and 5 October 2016 a chicken went into the scalding tank (where its feathers would be removed) while still alive because, after stunning, its neck had not been properly cut by a certificated operative.

HPFPL was charged with two offences in respect of each of the three incidents. The two offences were particularised as follows:

HPFPL raised a preliminary point of law which became sub-divided into two related issues: (1) whether the offences under regulation 30(1)(g) require proof of mens rea (ie proof that the defendant had knowledge of the factual circumstances constituting the alleged offence) and (2) whether the prosecution must prove a culpable act or omission on the part of the defendant.

Having heard the case in November 2017, District Judge Cadbury, sitting at Telford Magistrates’ Court, handed down his ruling on 9 January 2018. He held that these offences did not require proof of mens rea or culpability on the part of HPFPL. Rather they were offences of strict liability.

On 19 March 2018 District Judge Cadbury stated a case seeking the opinion of the Divisional Court of the Queen’s Bench Division of the High Court on the following two questions:

Given concerns as to the applicability of the “case stated” procedure to a situation where the Magistrates’ Court had not made a final determination of guilt, HPFPL also brought judicial review proceedings in the Divisional Court against District Judge Cadbury’s ruling. In its judgment, [2018] EWHC 3122 (Admin), the Divisional Court (Hickinbottom LJ and Jay J) decided that the correct way to proceed was via judicial review. On the substantive matter, it dismissed HPFPL’s application for judicial review because the District Judge was correct to have decided the preliminary issue of law in favour of the Crown Prosecution Service. It decided that the offences are ones of strict liability and do not require proof of mens rea or culpability by the business operator. HPFPL now appeals to the Supreme Court against that decision of the Divisional Court dismissing its application for judicial review.

While recognising that the same questions would be answered in the same way whichever of the two procedures was used, the Divisional Court decided that the “case stated” procedure could not here be used because the Magistrates’ Court had not made a final determination whether HPFPL was guilty or not. There has been no appeal against that decision on procedure and it is therefore unnecessary to say anything more about it.

What this court has to determine is whether the Divisional Court and District Judge Cadbury were correct to decide that the two offences charged under regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 (SI 2015/1782) (“WATOK Regulations 2015”) - namely the breach by HPFPL, as a business operator, of, first, article 3(1) and, secondly, article 15(1), Annex III, point 3.2, of Regulation (EC) No 1099/2009 on the protection of animals at the time of killing (“the EU Regulation”) - are offences of strict liability so that negligence by the business operator does not have to be proved.

It is helpful to set out immediately the precise provisions that create the two offences with which we are concerned. Regulation 30(1)(g) of the WATOK Regulations 2015 reads:

This judgment will proceed from the general to the particular. That is, before moving to look in detail at the correct interpretation of the two offences, one needs to clarify whether the relevant principles for the interpretation of legislation are those of EU law or domestic law or both. The judgment therefore starts by examining, in some depth, the relationship between the EU Regulation and the WATOK Regulations 2015. It will then look briefly at whether the imposition of strict liability in the context of criminal law is contrary to EU law before turning to examine the two offences.

Stephen Hockman QC for HPFPL submitted that, even if he failed to show that negligence is required under the EU Regulation, he could still succeed in arguing that negligence is required under the domestic regulation; and that, in interpreting a legislative provision under domestic law, it is well-established that there is a presumption that a crime requires mens rea or culpability (see, for example, Sweet v Parsley [1970] AC 132, Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1, and B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428). The Divisional Court accepted that that “two bites of the cherry” approach is correct. Jay J said, at para 56:

David Perry QC for the Crown Prosecution Service submitted that that was not the correct approach. The interpretation of the EU Regulation should be the beginning and the end of the enquiry. According to Mr Perry, the correct way to think about the relationship between the EU Regulation and the domestic regulations in this case is that the domestic regulations are merely the mechanism whereby the EU Regulation is given effect in this jurisdiction. It is therefore the interpretation of the EU Regulation that matters. The cases in domestic law on the presumption that a crime requires mens rea or culpability are not directly relevant. HPFPL has only “one bite of the cherry”.

I agree with those submissions of Mr Perry for reasons which will now be set out in some detail.

It is trite law that an EU Regulation has direct effect in a member state without the need for domestic enactment. Nevertheless, the combination of EU Regulation and domestic regulations is commonplace where detailed rules are being imposed and the only discretion being left to the member state is in relation to the penalties to be imposed for contravention of those rules. Looked at another way, in general (subject to the exceptions in article 83 of the Treaty on the Functioning of the EU) the EU does not have competence to impose criminal penalties (see, for example, Commission of the European Communities v Council of the European Union (Case C-176/03) [2005] ECR I-7879, para 47). In line with this, it would appear that an EU Regulation in the area of animal welfare could not have created a free-standing crime in a member state. The EU Regulation therefore laid down the detail of the duties imposed while leaving the member states with the discretion to decide whether to create criminal offences, by imposing criminal penalties, in their domestic legislation. The relevant discretion is provided for in article 23. This reads as follows:

It is of central importance that, while the member states have a discretion as regards penalties, they have no discretion to lower the standards required by the EU Regulation. We regard it as untenable to interpret article 23 as allowing member states to lower the standards imposed in so far as they have decided to implement the EU Regulation through criminal, rather than non-criminal, penalties. It follows that, if the EU Regulation imposes strict liability, the domestic regulation must (as a matter of EU law) do the same; and certainly, without a clear indication in the domestic regulation that the EU Regulation is being departed from, the best interpretation of the domestic legislation must be that it is merely the mechanism for implementing what has been laid down in the EU Regulation. Indeed, applying the “Marleasing principle” (set out in Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135), even if there are words in a domestic regulation that, on their face, depart from what an EU Regulation requires, the courts of a member state are required, if at all possible, to interpret the words of the domestic regulation so as to conform with that EU Regulation. In any event, in this case, the words of the relevant domestic regulation make clear that it is implementing whatever standards are imposed by Schedule 5 to the EU Regulation: ie regulation 30(1)(g) precisely specifies that “It is an offence to contravene … a provision of the EU Regulation specified in Schedule 5”.

In my view, therefore, if HPFPL fails to establish that negligence is required under the EU Regulation (ie if, contrary to Mr Hockman’s submissions, the EU Regulation imposes strict liability), HPFPL cannot then succeed on the basis that, in any event, the domestic regulation requires negligence and does not impose strict liability. There can be no question of the domestic regulation imposing a lower standard (ie negligence rather than strict liability) than that laid down by the EU Regulation because to do so would contravene the requirement of EU law for proper implementation of the EU Regulation.

Mr Hockman prayed in aid Criminal Proceedings against Vandevenne (Case C-7/90) [1993] 3 CMLR 608. That case dealt with Council Regulation (EEC) No 3820/85 which imposed maximum driving times for lorry drivers. The European Court of Justice (“the ECJ”) held that article 15, which imposed a duty on employers to use best endeavours to ensure that their drivers took the required rest breaks, left member states free to enact domestic legislation imposing strict criminal liability on employers. In other words, member states were held to be free to impose a stricter standard in domestic criminal law than that laid down in Regulation No 3820/85. But that decision does not help Mr Hockman because it recognises only the reverse of what he is arguing for. The ECJ held that the domestic legislation validly imposed a stricter, not a lower, standard than Regulation No 3820/85.

Therefore, the correct approach in this case, as submitted by Mr Perry, is that HPFPL has only “one bite of the cherry”. It needs to establish that on the correct interpretation of the EU Regulation, as implemented through the domestic regulations, the offences require negligence and are not offences of strict liability.

It follows from the acceptance of Mr Perry’s submissions (set out in para 12 above) that the relevant principles of legislative interpretation to be applied here are the principles of legislative interpretation established by the ECJ or the Court of Justice of the European Union (“the CJEU”) - which I shall refer to as the “EU law principles of legislative interpretation” - not the English law principles of statutory interpretation.

In R v Henn [1981] AC 850, 905, Lord Diplock referred to:

Similarly, in the Scottish case of Westwater v Thomson 1993 SLT 703, 709-710, Lord Justice General Hope (as he then was), sitting in the High Court of Justiciary (Appeal), said the following:

More recently, in Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] UKSC 22; [2012] 2 AC 471, in the context of interpreting an EU Framework Decision, Lord Phillips of Worth Matravers at para 15 said:

It is clear, therefore, that, in so far as they are different (and it is unnecessary in this case to try to pinpoint what the precise differences might be), the domestic rules of statutory interpretation are here displaced by the EU law principles of legislative interpretation. Although one is interpreting domestic criminal regulations, those regulations, because they implement the EU Regulation, must be interpreted by applying the principles laid down in EU law. A contrary approach would undermine the objective of harmonisation (which involves, among other things, ensuring that an “autonomous” meaning is applied to terms used in EU law so as to impose uniform standards across the EU). It is therefore the court’s task in this case to apply EU law principles of legislative interpretation. What then are those principles?

In the context of it being permissible, under EU principles of legislative interpretation, to consider the recitals, which expressly set out the objectives of the EU Regulation, Mr Hockman referred us to Omejc v Republika Slovenija (Case C-536/09) [2011] ECR I-5367. In what has now become a commonly cited formulation, the CJEU said the following at para 21:

In R v V [2011] EWCA Crim 2342, which concerned UK regulations implementing an EU Regulation by imposing strict criminal liability in relation to the transportation of waste, Cranston J giving the judgment of the Court of Appeal (Criminal Division) said at para 19:

Lord Phillips in Assange v Swedish Prosecution Authority (Nos 1 and 2), at para 15, helpfully pointed out that relevant factors to consider, in interpreting European legislation, are: the terms of the instrument, including its preamble; the usual meaning of the expressions used with a comparison of the different languages of the instrument; the purpose and general scheme of the instrument; and the preparatory materials.

It would appear that the most important point to have in mind is that the teleological approach to legislative interpretation adopted by the ECJ and CJEU means that there is a heavy stress on seeking to ensure that the interpretation of the words fulfils the purpose of the legislative provision and, more generally, the purposes of the EU. For helpful discussions see, for example, T Koopmans, “The Theory of Interpretation and the Court of Justice”, in Judicial Review in European Union Law, eds D O’Keeffe and A Bavasso (2000), p 45, especially at p 54; and Professor John Bell, writing the section headed “European teleological approaches”, in English Private Law, 3rd ed (2013), ed A Burrows, paras 1.36-1.39.

Before I move on to consider the application of the EU law principles of legislative interpretation to the two offences in issue, it is important to clarify, lest there be any doubt about this, that, just as one can have strict liability in domestic criminal law (despite there being a presumption that a crime requires mens rea or culpability) so the imposition of strict liability in the context of criminal law is not contrary to EU law (even though a principle of nulla poena sine culpa or “no punishment without fault” may be applicable: see the reference to this principle in, for example, Käserei Champignon Hofmeister GmbH & Co KG v Hauptzollamt Hamburg-Jonas (Case C-210/00) [2002] ECR I-6453, paras 35, 44, 49 and 52).

I have already indicated that, in general, the EU does not have competence in relation to creating crimes. But the fact that EU law is not averse to strict liability in the context of criminal law is well-illustrated by Public Prosecutor v Hansen & Son I/S (Case C-326/88) [1992] ICR 277.

In that case, the ECJ considered whether the imposition by a member state of strict criminal liability for breach of a provision of Community law was compatible with the EU principle of proportionality. The case concerned Council Regulation (EEC) No 543/69, which imposed maximum driving limits for lorry drivers (and was the predecessor of the Regulation considered in the Vandevenne case, referred to above at para 17). Denmark enacted legislation holding employers strictly liable in criminal law for the breach by their employees of those limits. A Danish court referred the question whether the Regulation precluded national legislation imposing strict criminal liability. The ECJ concluded that member states had a discretion to include provisions imposing such liability. At paras 19-20 the court said the following:

Having established that the court must apply EU law principles of legislative interpretation - with their heavy emphasis on effecting the purpose of the relevant provisions - and that the imposition of strict liability in the context of criminal law is not contrary to EU law, I can now turn to the interpretation of the two offences in this case. The two offences charged under regulation 30(1)(g) of the WATOK Regulations 2015 are the breach by HPFPL as a business operator of, first, article 3(1) of the EU Regulation (“the first offence”) and, secondly, article 15(1), Annex III, point 3.2, of the EU Regulation (“the second offence”). I have set out in para 9 above the precise provisions that create the two offences.

I should make clear as a prelude to what follows that, although there have been decisions of the CJEU on the EU Regulation (and by the ECJ on the predecessors of the EU Regulation), none of those decisions is relevant to the questions that this court has to decide. I have also derived no assistance from either the preparatory materials to the EU Regulation or other language versions of the EU Regulation.

For reasons that will become apparent, it is convenient to consider the second offence first. On the face of it, the relevant words of article 15(1), Annex III, point 3.2 impose strict liability. By article 15(1), business operators “shall ensure” that the operational rules are complied with. And the operational rules are specified in Annex III, point 3.2 in very clear and precise terms: “the two carotid arteries or the vessels … shall be systematically severed”. There is no hint that business operators shall be liable only if the operational rules are intentionally or negligently infringed. If strict liability were not being imposed, words importing culpability could have easily been included; but they have not been. Nor is there anything in the context of the EU Regulation as a whole (and see para 43 below for what I say about recital (2)) that would indicate that intention or negligence is required in relation to this offence. True it is that some of the provisions are concerned to impose monitoring and system checking and, in that sense, may be said to be concerned with imposing due diligence. But that is in no sense inconsistent with recognising that other provisions (including those creating the second offence) go beyond requiring due diligence.

That the best interpretation is that strict liability is being imposed is reinforced when, in accordance with the heavy emphasis placed on this by EU law principles of legislative interpretation, one concentrates on the purpose of the provision. Strict liability imposes a clear and easily enforceable standard and is therefore in line with a principal goal of uniformity across the EU. In contrast, enforcing a negligence standard would potentially be prone to difficulty. Indeed, it is not even clear what would here be meant by a negligence standard. In particular, would one be requiring negligence by an operative and then attaching blame vicariously on the business operator? If so, there may be a serious difficulty in identifying the relevant operative, not least where the operations are mechanical. I tend to agree with the main point made by Karl Laird in his short commentary on the decision of the Divisional Court in this case at [2019] Crim LR 528, 530. Albeit apparently viewing the issue as one of domestic statutory interpretation, he wrote that if strict liability were rejected the

Moreover, although one might argue this both ways - and without empirical evidence one cannot be confident which side of the argument is to be preferred - it is at least plausible that imposing strict liability (rather than negligence) acts as an incentive to improve standards. For a helpful consideration of the arguments both ways, in the context of a decision that accepted the merits of a “half-way house” whereby a defendant would be permitted a defence of due diligence to what would otherwise be a strict liability offence, see the judgment of Dickson J, giving the judgment of the Supreme Court of Canada, in R v City of Sault Ste Marie [1978] 2 SCR 1299, especially at pp 1310-1312.

If one were to reason by analogy from domestic statutory interpretation, it is noteworthy that one is not here concerned with traditional core criminal offences but rather with what have sometimes been termed, in the context of domestic criminal law, “regulatory offences”. These are offences created by statute and, in modern times, primarily enforced by regulators (in this case the Food Standards Agency) either alone or in combination with the Crown Prosecution Service. In domestic law, strict liability has often been regarded as less problematic in relation to such regulatory offences: see, for example, Blackstone’s Criminal Practice, 2020 ed, para A2.22 citing Parker v Alder [1899] 1 QB 20.

Looking at the words used in the EU Regulation, in their context and especially in the light of the purpose of the Regulation, it is therefore my view that, applying EU law principles of legislative interpretation and bearing in mind that imposing strict criminal liability is not contrary to EU law, the second offence is correctly interpreted as imposing strict liability.

To put this offence in context, it is helpful to set out some parts of article 3(2) and the whole of article 3(3) as well as article 3(1).

On the face of it, the relevant words of article 3(1) impose strict liability: animals “shall be spared” avoidable pain, distress or suffering. This use of the passive voice leaves no obvious room for a requirement of intention or negligence. And the requirement that the pain, distress or suffering is “avoidable” would be met where the business operator has contravened a specific operational rule (as here) which is designed to ensure the avoidance of pain, distress or suffering. That the words of article 3(1) are imposing strict liability gains strong support from the rest of article 3 which in article 3(2) and 3(3) uses the verb “to ensure”. So the relevant words of article 3(2) are “shall … take the necessary measures to ensure that”; and the relevant words of article 3(3) are “shall be … operated so as to ensure compliance with …”.

The reasoning in paras 34-36 above, there put forward to support the view that the second offence imposes strict liability, is equally relevant and forceful in relation to the first offence. Leaving aside recital (2), it is therefore clear, in my view, that article 3(1) imposes strict liability.

Before looking at recital (2), one point should be clarified. In his short judgment in the Divisional Court agreeing with Jay J, Hickinbottom LJ, at para 97, appeared to suggest that, for the purposes of article 3(1), there is an “irrebuttable presumption - a deeming provision” that where the second offence has been committed (ie where the two carotid arteries or the vessels from which they arise were not systematically severed) the bird, despite being stunned, has inevitably been caused avoidable pain, distress or suffering. It may be that Hickinbottom LJ was here focussing solely on whether the pain, distress or suffering was avoidable rather than on whether pain, distress or suffering was experienced. But in so far as his words might be interpreted as referring to the experiencing of the pain, distress or suffering, I do not agree with what he said. If there is any doubt (in relation to the first offence) about the bird experiencing pain, distress or suffering, that will be a matter for the prosecution to prove in the normal way. There is no reason to interpret article 3(1) as laying down that pain, distress or suffering has inevitably been experienced. Note also that, while the phrase “irrebuttable presumption” is commonly used by lawyers in various contexts, I would suggest that it is best avoided because, as Hickinbottom LJ indicated by his immediate reference to “a deeming provision”, it has nothing to do with presumptions in the true sense and simply means that there is a legal rule to that effect.

Turning now to recital (2), this reads:

Mr Hockman submitted that recital (2) provides a definition of what is meant by “avoidable” pain, distress or suffering in article 3(1) and that that definition requires “negligence or intention” because those are the express words used in recital (2). Indeed, Mr Hockman went further and submitted that this recital is of general relevance to the whole of the EU Regulation so that one should treat it as being relevant to the second offence and not just the first. While it is clear that recital (2) is seeking to explain the purpose of article 3, I accept that article 3 lays down a general requirement, not least because it is headed “general requirements for killing and related operations”. However, even if that general requirement does impose a standard of negligence or intention, rather than strict liability, that is not inconsistent with the imposition of strict liability by other specific provisions (including those creating the second offence). Irrespective of the detailed arguments analysed below, I therefore see no good reason to read recital (2) as affecting my reasoning, set out above, on the second offence.

But what about the central submission of Mr Hockman that recital (2) expressly requires one to read into article 3(1) a requirement of negligence or intention? In the Divisional Court Jay J rejected this submission by preferring two alternative interpretations of recital (2).

First, Jay J said, at para 58:

The problem with this first interpretation is that it is clear that the breach of one of the requirements of the EU Regulation has to be causally linked to the pain, distress or suffering to the animals. Without such a causal link a breach of the Regulation might have nothing to do with any such pain, suffering or distress. For example, a breach of the provision of the EU Regulation requiring there to be an animal welfare officer or requiring operatives to be certified cannot, in the abstract, without any causal link, mean that there has been relevant pain, distress or suffering. It follows that the phrase “thereby inducing … pain, distress or suffering to the animals” has to qualify the first limb as well as the second.

Jay J gave a second, alternative, interpretation at paras 58-59:

That second interpretation is compelling. The words are making clear that a breach of article 3(1) will usually entail fault but they are not laying down that fault is an essential element. An equally persuasive and slightly different way of putting this is that negligence or intention are being provided as examples of the ways, and not as an exhaustive list of the ways, in which a breach of the Regulation, or a failure to use permitted practices reflecting the state of the art, induces pain, distress or suffering that should have been avoided.

It is also important to stress that the words “negligence or intention” are in a recital and are not in the operative provisions of the EU Regulation. It is clear that under EU law principles of legislative interpretation, one can take a recital into account in interpreting a relevant provision of the Regulation: see, for example, Omejc v Republika Slovenija (Case C-536/09) [2011] ECR I-5367, para 26. There is also no doubt that, under EU law principles of legislative interpretation, the recitals are of considerable importance. As one is applying the teleological approach, the express setting out of the purposes is bound to be highly significant. However, what one has here is a clear provision of the EU Regulation, imposing strict liability, and a somewhat ambiguous provision in the recital referring to “negligence or intention”. In that situation, it appears to be well-established that the recital should be interpreted in such a way as not to contradict the Regulation. For example, in Criminal Proceedings against Caronna (Case C-7/11) EU:C:2012:396, the CJEU stated as follows at para 40:

R (International Air Transport Association) v Department of Transport (Case C-344/04) [2006] 2 CMLR 20 is a particularly clear illustration of this approach to recitals. The case concerned Regulation (EC) No 261/2004. Articles 5, 6 and 7 established rules on the immediate compensation and assistance to be given by airlines to passengers who were denied boarding or whose flights had been cancelled or delayed. Recital (14) of the Regulation read as follows:

Applying EU law principles of legislative interpretation, therefore, the unclear recital (2) does not override the clear article 3(1).

Finally, there is a further background (or contextual) consideration that supports the interpretation of the first offence as imposing strict liability. Article 28 of the EU Regulation repealed Directive 93/119/EC. That Directive set out the previous EU law on the protection of animals at the time of slaughter or killing. Article 3 of that Directive read:

Looking at the words used in the EU Regulation, in their context and especially in the light of the purpose of the Regulation, it is therefore my view that, applying EU law principles of legislative interpretation and bearing in mind that imposing strict criminal liability is not contrary to EU law, the first offence, like the second offence, is correctly interpreted as imposing strict liability.

I agree with what Jay J said at para 88 of his judgment in the Divisional Court:

The Divisional Court went on to reach the same “strict liability” conclusion applying domestic law. Although that “two bites of the cherry” approach was incorrect I add, by way of footnote, that had it been correct to apply domestic law, I would have agreed with the Divisional Court’s view that the presumption of mens rea or culpability was here rebutted.

Neither counsel asked the court to make a reference to the CJEU on the questions raised. Such a reference is neither required nor appropriate because the matter is acte clair. For the reasons I have given, the two offences in issue are offences imposing strict liability on the business operator. There is no requirement to prove negligence. Although my reasoning differs in some respects from that of the Divisional Court, the appeal of HPFPL is dismissed. The criminal proceedings must now proceed before District Judge Cadbury to be finally determined on the basis of whatever further evidence the parties wish to adduce.