Introduction In these conjoined appeals, the appellants (collectively, BASF) challenged a decision of the European Chemicals Agency (ECHA) that they must provide certain missing data. The appeals were heard by ECHA’s Board of Appeal, which gave its decision on 9 November 2021. Cruelty Free Europe and PETA International Science Consortium were given permission to intervene in the appeals in support of BASF. Advocates for Animals acted for both organisations. The facts Both BASF Colors & Effects and BASF SE registered a particular substance, albeit at different times. They registered it at Annex IX tonnage (100 to 1000 tonnes a year) because that was the tonnage at which they expected to market it in the EU. For a short time some years ago, the annual tonnage did indeed exceed 100, albeit only just. In March 2019, ECHA initiated a compliance check. Three months later, it sent the registrants a draft compliance check decision requiring them to fill data gaps at both Annexes VIII and IX, including via an Annex IX long-term toxicity test involving several hundred fish force-fed the substance. The draft decision triggered a multi-step procedure set out in Articles 50 and 51 of REACH. This included an opportunity for the registrants to comment on the draft decision. They did so by updating their registration dossier: they changed the tonnage band from Annex IX to Annex VIII. They explained that their original projections had proved overoptimistic; indeed, they intended ceasing manufacture before too long. They accepted that they had to provide the Annex VIII data in the meantime. ECHA declined to accept the registrants’ arguments and its final decision confirmed the requirement to provide the missing Annex XI data. Data had to follow the tonnage at which a substance was registered at the time of the draft decision, and any changes after that could not be taken into account. Article 50(2) and (3) dealt with the consequences of cessation of manufacture (under different scenarios): those provisions apart, the registered tonnage at the time of a draft decision was determinative. The law Subject to some exceptions, companies (‘registrants’) wishing to manufacture or place on the market (collectively, ‘marketed’) in the EU a chemical (‘substance’) must register them with ECHA. They must hold a complete data set. If they do not, they cannot market the substance. This is under Regulation (EU) No 1907/2006, commonly known as ‘REACH’, which seeks to protect human health and the environment. The data required depends on the tonnage at which the substance is marketed. So, substances marketed at between 1-10 tonnes a year must hold the data required by Annex VII; substances marketed at between 10 and 100 tonnes a year must also hold the data required by Annex VIII; substances marketed at between 100 tonnes and 1000 tonnes must also hold the data required by Annex IX; and substances marketed at over 1000 tonnes a year must also hold the data required by Annex X. Annexes VII to X are known as ‘the testing annexes’. The obligations under each successive tonnage band are cumulative. The rationale is that the higher the tonnage at which a substance is marketed, the greater the risk to human health and the environment. That is a blunt policy instrument, but it is the one which EU legislators have chosen to adopt. Many of the types of data (endpoints) within a testing annex prima facie require animal tests. However, registrants can ‘adapt’ the endpoints if there is an alternative way of generating the data. The permissible adaptations are set out both in the testing annexes and in Annex XI, which sets out alternative approaches. ‘Alternatives’ encompass not only non-animal methods and approaches but also methods and approaches involving fewer animals or less suffering. It is a fundamental principle of REACH (Article 25(1) that animal tests should only be carried out as a last resort. ECHA is given the power by REACH to conduct a compliance check to ensure that the requisite data is held. At Annexes IX and X, a registrant must make a testing proposal which ECHA must then accept before carrying out animal tests. Third parties can then come forward with data obviating the need for an animal test. The board of appeal’s decision The Board of Appeal decided that ECHA should have taken into account the change in tonnage. That was capable of constituting ‘substantial new information’. As the Board of Appeal had decided in previous cases, ECHA was in principle entitled to set administrative cut-off points – here, the issue of the draft decision. However, those cut-off points could not be inflexible. In exercising its discretion on a case-by-case basis (as it had to), it was required to take other factors into account as well – in particular, the last resort principle. ECHA itself had a duty to avoid the need for animal testing. The Board of Appeal said that the fact that the registrants had been dilatory in meeting their obligation under Article 22(1)(c) to inform ECHA of changes in tonnage band did not matter. It added that, if ECHA concluded, after proper examination, that the downgrade was being done as an impermissible way of avoiding providing data, that was something it could take into account. One had to look at the industrial and commercial realities in each case. Commentary The Board of Appeal remitted the case to ECHA, as it normally does. It is difficult to see that, in the circumstances, ECHA can do anything other than remove the requirement to carry out the Annex IX tests. If that is right, hundreds of fish will be spared potentially significant suffering, and that is clearly important in itself. More generally, the decision reiterates the principle which the Board of Appeal had established in previous cases, albeit in different contexts, that ECHA cannot place administrative convenience over its obligation to avoid unnecessary animal tests. Given the reality that the substance in question was not marketed at Annex XI tonnage and was never likely to again, and given the legislative philosophy that tonnage correlates to risk, there was nothing to be gained for human health or the environment from insisting on Annex IX data for a substance which was in reality an Annex VIII one. ECHA could challenge the Board of Appeal decision at the EU General Court. Post-Brexit, the EU has its own version of REACH, largely following the EU version. The UK does not have to follow the Board of Appeal decision, but it would be surprising if it did not. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

[2021] EWCA Civ 1637 (9 November 2021) https://www.bailii.org/ew/cases/EWCA/Civ/2021/1637.html Introduction The case of R (RSPB) v Natural England consisted of two judicial review appeals that were heard together. The first was brought by the RSPB, and the second by Mark Avery, who for many years worked for the organisation. The defendant in each case was Natural England, an executive non-departmental public body, sponsored by DEFRA. The issue in each case was whether Natural England had acted unlawfully in granting sequential licences to ‘take and disturb’ hen harriers for scientific, research or educational purposes pursuant to section 16(1)(a) Wildlife and Countryside Act 1981 (the 1981 Act). RSPB and Dr Avery ran somewhat different arguments, but both maintained that the licences were unlawful. The facts Hen harriers are birds of prey, breeding widely across Eurasia and North America. In England, they nest mainly in the northern moorlands among the heather to be found, in particular, on grouse moors. Their numbers have long been in serious decline: in 2016 there were only four pairs in England. As described by Lord Justice Phillips: ‘One of the main causes for the breeding failure by hen harriers in England is persecution, accounting for almost all nesting failures in driven grouse moors (other than in the Bowland Fells SPA). The persecutors are believed to be gamekeepers and others working on driven grouse moors, illegally killing hen harriers, destroying or disturbing their nests and taking eggs in order to reduce the number of birds preying on red grouse chicks (which adult hen harriers feed to their young during their breeding season) so as to maximise the number of grouse available for shooting in the autumn. A further aim of such illegal activity may be to limit the extent to which hen harriers overfly shoots, depressing the number of grouse taking flight'. The principal options for addressing the persecution were: prosecution under section 1 of the 1981 Act, which had had limited effect; diversionary feeding (providing hen harriers with food supplies as alternatives to grouse chicks), which had enjoyed considerable success in Scotland but had had limited take-up in England; and brood management: once hen harrier nests reach a certain density in the vicinity of a grouse moor, eggs and unfledged chicks are removed from some nests, reared in captivity and released when they are fledged into a suitable habitat. The hypothesis of brood management is that hen harrier eggs and chicks will not be persecuted and predation of grouse chicks will be kept at levels which do not threaten the economic viability of the grouse moor. Natural England decided to explore the hypothesis and issued licences for temporary trials under section 16(1)(a) of the 1981 Act. An assessment under the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations) recognised that interventions on small populations of a species carry a very high degree of risk, but the Agency concluded that a trial was nonetheless the best option. Conditions were attached to the licences. The law Due to their rarity and vulnerability, hen harriers have the highest level of legislative protection: they are listed in Annex 1 to Directive 2009/147/EC (the Birds Directive), such that EU Member States are required to take special conservation measures to ensure their survival and reproduction and to designate Special Protection Areas (SPAs) for their conservation; they are species of principal importance for biodiversity conservation in England, under Section 41 National Environment and Rural Communities Act 2006; and they are protected under Schedule 1 to the 1981 Act. The 1981 Act gives effect to the Birds Directive, which therefore survives Brexit. Section 1 of the 1981 Act makes it an offence to kill or take a wild bird, to damage or destroy a nest being built or in use or to take or destroy the bird’s eggs. Section 16(1) then allows licences for activities which would otherwise breach section 1. The activity in paragraph (a), as noted, is ‘scientific , research of educational purposes’ and that in paragraph (c) ‘the purpose of conserving wild birds’. Under subsection (1A), the licensing authority must not grant a licence ‘for any purpose mentioned in subsection (1) unless it is satisfied that, as regards that purpose, there is no other satisfactory solution’. The decision The Court of Appeal held that Natural England only had to consider alternatives to brood management as a method of conducting scientific trials etc under section 16(1)(a) of the 1981 Act: it did not have to consider alternative conservation approaches more generally. That was clear from the wording of paragraph (a) and the fact that paragraph (c) addressed the latter. On that basis, the decisions to grant the licences under paragraph (a) could not be faulted. There was no need for the agency to consider diversionary feeding in this context, because that would not provide any evidence of the effectiveness of brood management, the purpose of the trials. Rather confusingly, the Court nevertheless said that, when deciding whether to grant a derogating licence, Natural England had to ensure that it was not thwarting the relevant legislative policy (here, the conservation of threatened species). The Court also rejected Dr Avery’s argument that it was incompatible to read paragraph (c) ‘as permitting a scheme, even on a temporary basis, which moved from a 'dissuasive criminal enforcement' regime to one which involved removing hen harriers and their eggs to placate the criminals’. Natural England had properly considered whether a trial of brood management was appropriate to collect evidence to weigh in the balance for longer-term solutions. The Court, finally, held that on the facts, brood management in two SPAs, permitted under the terms of the licences, would not defeat certain conservation objectives for SPAs by internally displacing hen harriers and constraining their population and thereby adversely affecting the integrity of the sites contrary to regulation 63 of the Habitats Regulations. Commentary The Court of Appeal was at pains to reject the appellants’ overarching criticism that Natural England was acting to protect the driven grouse moor industry rather than hen harriers. It seems clear, however, that the root cause of the very low numbers of hen harriers in the northern moorlands was persecution by the driven grouse industry. Rather than address that persecution head-on, Natural England sought a solution which permitted co-existence between hen harriers and the industry: the purpose of the scientific trials was to see if moving chicks from away from grouse areas worked in this context. Without grouse shooting, displacement would not have been necessary. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

01 July 2022 by Samuel March On 29 and 30 June 2022, Advocates for Animals acted for Jessica Sarkar, a volunteer at New Dawn Malinois Rehoming (NDMR) dog rescue, who brought a successful private prosecution against a company director who fostered two of NDMR’s dogs, refused to return them, and allowed them to become emaciated, causing one of them unnecessary suffering. The facts This was a case about two Belgian Malinois dogs called Buddy and Monty. Ms Sarkar is a volunteer at NDMR. NDMR took in both dogs from other rescues, intending to place them in temporary foster care whilst finding them forever homes. The defendant put herself forward as a fosterer and entered into a foster agreement, which included a condition not to rehome the dogs without NDMR’s consent. She took the dogs from NDMR in 2019 but then fell out with NDMR, refused to return them and set up her own company, Mars & Minerva Rehoming Ltd (M&M). In April 2021, as a result of information received, Ms Sarkar and two others attended a rundown kennel in Bluntisham, where online posts suggest M&M were renting kennel space. On arrival, they found Monty and Buddy in a weak and emaciated state, with their bones clearly visible through their coats. A vet who treated them in the following days gave them each a body condition score of 1/9, the worst possible score. One of them had faeces matted into his coat; both had been housed in a kennel that was described to have 'stank of death'. Two of the witnesses broke down in tears describing the state they had recovered the dogs in: their weakness, sunken eyes, and desperate way they ate and drank when they got home. Both dogs were then placed in suitable homes. Veterinary evidence suggested that in the months that followed, Buddy’s BCS went from 1/5, to 5/9 ('ideal'). The vet who gave expert opinion evidence could think of no reasonable explanation for such an improvement other than a change of ownership and going from being malnourished to receiving a suitable diet. A vet also subsequently assessed Monty but failed to provide a report that complied with Criminal Procedure Rule 19 or attend court. The charges The defendant was summonsed in respect of four offences. Two offences of causing unnecessary suffering, contrary to s.4(1) the Animal Welfare Act 2006 (AWA 2006) (failing to feed them); and two offences of breaching a duty of a person responsible for an animal to ensure welfare, contrary to s.9(1) AWA 2006 (relating to their weight, their housing conditions, and allowing Monty to become covered in faeces and not being given veterinary treatment). Ultimately, without expert evidence that could rule out heart problems as the cause of Monty’s suffering, the prosecutor dropped one of the s.4(1) charges but proceeded with the remaining three charges. The defence case Because the defence never filed a defence statement, it was not clear ahead of trial what the defence would be. A Plea and Effective Trial form had been filled in at an early hearing but only stated: 'No case to answer. No admissible evidence against D. No unnecessary suffering. No unsuitable environment. Maliciously motivated prosecution brought in bad faith.' However, ultimately a submission of no case to answer failed, no prosecution evidence was excluded, and no abuse of process argument was made. The prosecution witnesses were not challenged on the state of the kennels or the dogs, and the defendant declined to give any evidence at all in her defence. The verdict Ultimately, in the absence of any defence evidence, the judge was satisfied so that he was sure that the defendant had taken responsibility for the dogs and was satisfied that they were not taken to the vets or given food of sufficient quantity or quality and that through malnutrition, Buddy suffered unnecessarily. The case was adjourned for the probation service to write a report about the defendant, to find out more about an apparent previous conviction of the defendant for a similar offence relating to horses, and for the prosecution to consider and prepare applications for costs and a possible order disqualifying the defendant from owning animals. Sentence (updated 19 august 2022) On 19 August 2022 the defendant was sentenced to an 18 month community order, required to pay a contribution (due to limited means) to defence costs of £6,000 in monthly instalments of £300, and was disqualified for ten years from owning animals, keeping or participating in keeping them, from being party to an arrangement under which she is entitled to control or influence the way in which animals are kept; or from dealing in animals. The effect of that sentence has been stayed pending an appeal to the Crown Court. Commentary In our line of work, we see the most sickening acts of cruelty, including where animals are brutally killed or left to die in agony. This was not one of those cases. However, it was an extremely important case for many reasons, not least because animals are entitled to have their needs met under the law, and animals did still suffer as a result of poor treatment. This case highlights that all these legal protections matter and should be enforced. Advocates for Animals were instructed as the solicitors for the prosecutor and instructed Stephen Wells and Samuel March of 9 King’s Bench Walk as leading and junior counsel, respectively. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

11 July 2022, Jess Swallow On 6 May 2022, Advocates for Animals acted for Wendy Ayres and Ian Holding, whose dog, Bailey, tragically died while in the care of the defendant, a veterinary group. The claim was based in negligence and breach of contract, with the claimants arguing that the defendant had failed to provide Bailey with the standard of care expected of a reasonably competent vet, and that this resulted in his death. They further argued that Bailey was a much-loved member of their family, and that any financial award should not be measured simply by the cost of a replacement dog (which is the way such awards would typically operate), but rather, it should reflect Bailey’s true value as the claimants’ beloved family member. The claim failed; however, the judge acknowledged that the claim was properly brought, despite never having been about money, and denied the defendant’s application for costs. The facts This was a case about a dog called Bailey. Bailey was a Labrador who was rescued by the claimants in November 2017 with his companion, Missie. The claimants do not have children, and Bailey and Missie quickly settled in as part of the family. In his witness statement, Mr Holding stated that: 'Labradors like Bailey and Missie have such huge personalities; they pick up on your feelings, anxieties, fun and happiness and they are a part of your family. Bailey and I were incredibly close. He knew my commands before I spoke them. His loyalty to me [was obvious]… and I know that he would have saved my life in a heartbeat. In effect he was the son I never had.' In late September 2019, the claimants took Bailey to a veterinary surgery operated by the defendant because he was displaying lameness in his front leg. He was prescribed some medication. However, a week later the lameness had worsened, and the claimants returned to the vet. Bailey was given an X-ray and further painkillers. Overnight on 2 October 2019, Bailey began passing blood. The claimants took him to the vets first thing the next morning, where he was given a further painkiller and an antacid. They returned home with him, but he was fading fast. The claimants rushed him back to the vets, where he was admitted as an in-patient. Tragically, at around 5:45pm on 3 October 2019, Bailey passed away. The claim The claimants claimed that the defendant, negligently and in breach of contract, failed to provide an acceptable standard of care, in particular by failing to provide Bailey with adequate and appropriate examinations, pain relief and monitoring, and those breaches caused or materially contributed to unnecessary suffering by Bailey and his premature death. More specifically, the claimants argued that the defendant’s alleged breaches caused both Bailey’s suffering and his premature death, and that both of these give rise to damages. The claimants sought to recover: (i) the cost of a replacement dog, (ii) the reimbursement of the sums paid to the defendant, and (iii) a lump sum to represent damages for loss of pleasure and peace of mind that the contract should have brought through Bailey’s recovery, and the emotional distress suffered as a result of the alleged failings. In relation to (iii), the claimants argued that English law recognises that distress resulting from witnessing upsetting events can give rise to damages. The most well-recognised type of case in this regard is so-called 'nervous shock', which requires a very severe degree of psychiatric harm; however, there are comparable awards made in other areas of law, such as Vento awards in employment law for upset caused by a hostile work environment, damages for harassment, non-material losses caused by defamatory statements, non-financial disappointment for unsatisfactory building works, and the loss of pleasure caused by a disappointing holiday. It was argued that it was open to the court to make an award to the claimants on comparable terms, for the distress that they had suffered as a result of losing Bailey in the manner that they did. The defence Relying on an expert’s report, the defendant argued that the care it provided to Bailey did not fall below the requisite standard for a breach of contract or professional negligence claim, and further argued that any failings did not cause Bailey’s death as he would likely have died whether or not there had been any breach. Even if the defendant’s actions or omissions had caused Bailey’s death, the defendant denied that the sums claimed by the claimants were recoverable under English law. In relation to Bailey’s financial value, it argued that, due to his age and lameness, his market value was nil; in relation to the reimbursement of sums paid to the defendant, it argued that these would have been incurred whether or not there had been any breach of duty; in relation to emotional distress damages, it argued that the authorities relied on the claimants were not relevant to the present case. The judgment The judge agreed with the defendant. While he was sympathetic to the claimants, he did not consider that the defendant’s care of Bailey had fallen below the requisite standards and, in any event, the expert evidence indicated that he would have died with or without acceptable care. Causation was not made out in respect of that part of the claim. In relation to the connected claim for damages for emotional distress resulting from Bailey’s suffering (as opposed to his premature death), the judge held that, even though the expert indicated that, but for the defendant’s actions, Bailey could have been made more comfortable in the last hours of his life, no actionable cause of action arises from Bailey’s lack of comfort. In this regard, the judge said that: 'Here, I think I am at risk as coming across as rather cold-hearted. Please, I am not, but I have to apply the law correctly. English law sees a much-loved family pet in very much the same way as it sees a dishwasher; it is a "thing" .' Despite finding that the claim had failed both on breach and on causation, the judge briefly considered the claimants’ claim for damages for emotional distress, and reached the following view: 'The most significant elements of this claim, were breach of duty and causation satisfied, is whether there can be a sum payable to Mr Holding and Ms Ayres for their upset. The answer to that is a firm "No" There are contracts, for example contracts for a holiday, where breach of that contract has led to a loss of enjoyment. The logic in the Court’s decision to compensate for that loss is that it was the very purpose of the contract. There was no sense in which the contract between Mr Holding, Ms Ayres, and the defendant was to give the claimants any form of enjoyment. Far from it; it was to try and have Bailey’s lameness addressed. There was no pleasure in taking him to the vet for that purpose. We are in a very different situation.' Commentary This was a tragic case that was founded in the claimants’ unswerving belief that the care, or lack of care as they saw it, given to Bailey led directly to his death. For the claimants, this case was never about money or financial compensation, but rather it was about getting recognition that Bailey had died prematurely and that his value could not be represented by the cost of a replacement dog, which is the current position under the law. The court did not agree on either point; however, the case gave rise to some interesting points of law in relation to animals. Animal suffering as a head of damage: The expert was of the view that the defendant’s actions or omissions did not cause Bailey to die, but that they may have had 'serious consequences' and Bailey might otherwise have 'been made more comfortable for the remaining hours of his life'. The claimants’ claim was articulated in two parts: that the claimants had suffered both as a result of Bailey’s death, and also as a result of his suffering. In relation to Bailey’s death, the judge’s conclusion was that this was not caused by any act or omission by the defendant (and, indeed, he considered that the defendant had not fallen short of the expected standard of care in this regard), and this part of the claim failed. In relation to Bailey’s suffering, whether or not it is a head of damage currently recognised under law, the claimants’ position was that this (and not just Bailey’s death) had caused them significant distress. However, despite being sympathetic, the judge’s view was that this distress was not quantifiable and not something which, under the law as it stands, gives rise to an actionable claim. Emotional distress damages and the status of animals as property under law: In broad terms, the law recognises two primary categories of entities: persons and things. A 'person' (such as a human, a company or a nation state) has rights, whereas a 'thing' (such as land, a dishwasher or a nonhuman animal) is the subject of rights. Legal relations exist between 'persons', who can own 'things'. A person might have an obligation in respect of a 'thing' that they own (such as an obligation to care for a nonhuman animal); however, the 'thing' has no rights or legal standing to enforce those obligations on its/their own behalf. In this case, this meant that the claimants could bring a claim on their own behalf, arising out of their pain and suffering that resulted from Bailey’s death, but there was no legal mechanism for Bailey to have made a claim on his own behalf, or for the claimants to have made a claim on Bailey’s behalf. Similarly, when valuing any compensation that might have been payable had the claim been successful, the starting point is that Bailey was a 'thing' with a market value and that he can be replaced by another dog of a similar value; as such, any damages would be limited to that market value. As above, it was the claimants’ case that there are legal mechanisms by which a court can order damages for emotional distress and/or loss of pleasure and/or disappointment, and that these heads of damages more accurately reflect the true value of a family companion such as Bailey. In this case, the court disagreed. Our clients are often outraged that nonhuman animals under their care are considered mere property, or 'things', under law, and they believe that this does not reflect the status or value they deserve. We will continue to represent them to challenge this property status and see the real value of nonhuman animals taken into account by the courts. Advocates for Animals was instructed as the solicitors for the claimants, who were represented at trial by Alan Robertshaw of Coach House Chambers. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

Alex Radford, 8 September 2022 On the week of March 14th 2022 the Employment Tribunal heard the case of Ms S Free Miles v The Royal Veterinary College . The case is interesting as it touches on the question of what sort of protection proponents of ethical veganism can expect under the Equality Act 2010, if they are dismissed from their job due to their ethical commitments. Combined with an earlier 2020 case , J Casamitjana Costa v The League Against Cruel Sports, the tribunal's judgment here indicates that courts are happy to view ethical veganism as a protected philosophical belief. However, they will draw a hard line with any philosophical belief that endorses breaking the law. The facts Shakira Free Miles, the claimant, was a veterinary nurse who believed that non-human animals both have innate value, and that they should not be used for food, sport or experimentation. She was employed by the respondent, the Royal Veterinary College, with whom she had an agreement to live in a flat provided by the college. Sometime after Ms S Free Miles started working an officer from Essex Police contacted a hospital director at the college, Anne Richings, and demanded personal data on Ms S Free Miles. They said they were investigating burglaries and thefts of non-human animals. After contacting Anne Richings, the police then arrested Ms S Free Miles at the college’s flat and found an unwell turkey. Ms S Free Miles was subsequently released under investigation. She was later charged by the police with criminal conspiracy. Shortly after being arrested, Ms S Free Miles was investigated by the college for possible gross misconduct. Ultimately the college upheld four allegations against her and dismissed her from their employment. They were: 1. She breached a no pets policy the college had for its residential accommodation. This was misconduct but not gross misconduct. 2. She breached her accommodation agreement. Again, this was misconduct, not gross misconduct. 3. She breached the college's social media policy by posting pictures of animals that were being treated at the college without the consent of the owners. This did amount to gross misconduct. 4. She brought the nursing profession into disrepute by trespassing and removing animals from private property, as well as for being part of and promoting an animal activist group called 'Meat the Victims' which did endorse breaking the law. This also amounted to gross misconduct. This led her to approach the employment tribunal and claim she had been dismissed unlawfully. One of the claims she made was that she suffered direct and indirect philosophical belief discrimination. Ms S Free Miles challenged the Royal Veterinary College on the following grounds: 1) She was unfairly dismissed because the process the college followed was not fair, for example her counsel alleged a key reason for her dismissal was not communicated to her. 2) The college directly or indirectly discriminated against her protected philosophical beliefs. She believed that non-human animals have innate value and should not be exploited, and that she and others had a positive duty to act to prevent this exploitation, including trespassing and removing suffering animals. She argued this belief should be counted as a protected philosophical belief under Section 10 of the Equality Act 2010, which prohibits discrimination against such beliefs. As the college dismissed her for holding this belief or, more generally, had a policy of dismissing anyone else who held that protected philosophical belief, they had discriminated against her. The law In judging this claim, the tribunal had to determine whether her beliefs could count as a philosophical belief under the Equality Act 2010 Section 10. The criteria for determining what counts as a philosophical belief, however, was set down by Grainger PLC & Others v Nicholson EKEAT/0219/09: '(i) The belief must be genuinely held. (ii) It must be a belief and not … an opinion or viewpoint based on the present state of information available. (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour. (iv) It must attain a certain level of cogency, seriousness, cohesion and importance. (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others …' Held The tribunal found Ms S Free Miles beliefs to fail on the last criterion: they were not worthy of respect in a democratic society. The tribunal didn’t hold that all her beliefs were not worthy of respect. Her belief that non-human animals have innate value, and that they should not be used for food, sport or experimentation was deemed worthy of respect. However, her beliefs extended further. She thought that she and others had a moral obligation to take positive steps to prevent non-human animal exploitation. This included breaking laws such as trespassing on private property. This the tribunal did not think was worthy of respect. The court also held that the parts of her beliefs which are protected, e.g. the belief that non-human animals should not be exploited, where not intimately linked to the actions she took. As such they didn’t count as a manifestation of her beliefs. And even if they were counted, the court held that it would have been proportionate for the college to dismiss her. As a result, she had not been discriminated against due to her ethical veganism. As far as the court was concerned, the college had supported her due to the fact they provided a second fridge for her, which would not contain animal products, and allowed her to speak publicly on animal issues. The reasons for dismissal resulted largely from the college’s concern about the potential loss to their reputation they believed Ms S Free Miles actions caused them. The tribunal decided to dismiss Ms S Free Miles claim of indirect and direct philosophical belief discrimination. Commentary First, it’s worth noting that employment tribunal decisions are not binding on other courts. It is always possible for a future court to diverge from this. However, despite this limitation, there are arguably two things worth noting: The tribunal agreed with a previous employment tribunal judgment which held that ethical veganism in certain circumstances counts as a philosophical belief (Mr J Casamitjana Costa v The League Against Cruel Sports: 3331129/2018. The panel took a view of any potential philosophical belief, not just ethical veganism, which endorsed any form of law breaking, regardless of whether the law broken is criminal or civil. The tribunal for example, focused in large part on the accusations of trespass against her, which in general is a civil but not a criminal offence in the UK. In doing so they seem to take the view that no philosophical belief which endorsed civil disobedience could be protected under the Equality Act 2010. Although the caselaw on ethical veganism is still far too nascent to draw firm conclusions on how future tribunals are likely to approach the issue, this case indicates that courts seem willing to consider ethical veganism worthy of protection. However, it also indicates that tribunals may draw a hard line when the form of ethical veganism believed in endorses civil disobedience. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

Samuel March, 14 November 2022 On 10 November 2022 to 14 November 2022, Swindon Crown Court heard a case about a dog ('R'). The facts It was alleged that on 03 October 2021, R had jumped up on a police sergeant and on 11 November 2021, that he had done the same to two police community support officers (PCSOs). On both occasions, officers had visited R’s human companion’s address to conduct routine checks on a closure order. It was an agreed fact that the order was in place because the defendant had been taken advantage of by others, who had used his property to conduct criminal activity. As a result, a closure order was in place preventing anyone but the defendant from being at the property. As a result of the incidents, all three officers alleged that they sustained some scratches and/or reddened skin, and two of them had taken photos of the marks in question. The police sergeant in the first incident allegedly sustained a nip to the wrist, causing a light scratch. The first PCSO in the second incident was allegedly bitten to the elbow, causing a small red patch that lasted somewhere between 20 minutes and an hour. The final PCSO allegedly sustained a bite to the wrist that did not puncture the skin and a slightly longer scratch to the left thigh where R had jumped up. On no occasion had the skin been punctured, none of the officers needed time off work, and no officer required as much as a plaster or antiseptic wipe. As a result of these marks and scratches, R’s human companion was charged with three counts of being the owner of a dog dangerously out of control causing injury to a person, contrary to s.3(1) Dangerous Dogs Act 1991. At trial there were a number of factual disputes about whether R was aggressive or merely boisterous and whether some of the marks were the result of bites as opposed to butts or scratches, but the central issue in the case was whether the various scratches and marks could really be characterised as injuries. The law Because of this issue, a legal argument arose on 11 November 2022 as to how the jury should be directed as to the meaning of the words 'injures any person' for the purposes of an aggravated offence contrary to S.3(1) Dangerous Dogs Act 1991 . This appeared to be a novel point of law, and neither counsel had been able to locate any decided authority on the matter. Counsel for the defendant argued that whilst injury was an ordinary word to be given its ordinary meaning, the jury might benefit from some additional 'gloss' or guidance, as is common practice in cases of assault occasioning 'actual bodily harm' (ABH), contrary to s.47 Offences Against the Person Act 1861. It was submitted that 'injures any person' in this context meant something similar to 'bodily harm' in that context. Attention was drawn to the discussion of that term in R v Donovan [1934] 2 K.B. 498 . In light of that authority, it was submitted that a harm cannot properly be categorised as an 'injury' in the context of the aggravated offence where it is 'merely transient or trifling'. The prosecution argued that the defence submissions were unsupported by precedent and that no gloss or guidance was necessary and that injury should simply be given its ordinary meaning. Held HHJ Townsend considered the matter and ruled that 'injures' was indeed an ordinary word to be given its ordinary meaning. It was clear from the context of the offence that 'injures' referred to personal injury as opposed to any wider notion of injury. In the context of the offence, he could see no difference between the concepts of 'injury' and 'bodily harm' and that the word 'actual' added nothing of significance to the 1861 Act that he could discern. As such, he considered that the same 'gloss' routinely given to juries in ABH cases was potentially helpful to the jury in this case. With this in mind, he included the following in his written and oral directions to the jury on 14 November 2022: 'Finally, the prosecution would have to prove that R caused an injury to the relevant police officer or police community support officer. 'Injury' is an ordinary word, with no special legal meaning. An injury could include any hurt or harm calculated to interfere with health or comfort. It need not be permanent or serious, but must be more than merely transient or trifling. It is for you to judge whether the things that the witnesses say they suffered as a result of R leaping up at them amount to an 'injury' in the ordinary sense of that word.' On 14 November 2022, R’s human companion was unanimously acquitted on all three counts. Commentary It is worthy of note that where a defendant is tried on indictment for an aggravated DDA offence, there is no power for a jury to return an alternative verdict and convict a defendant of the non-aggravated offence of merely being the owner or person in charge of a dog who is dangerously out of control. As such, if the offence is tried in the Crown Court, it is an all or nothing trial: the Crown must either prove injury, or the defendant falls to be acquitted entirely. The legal significance of the ruling is limited in that this was a decision of the trial judge at first instance. It sets no binding precedent and need not be followed by other courts of first instance. Nevertheless, it may be considered to provide persuasive support in similar cases where minor harms are alleged to constitute injuries. It may in particular be a helpful example to refer to when writing letters of representations to the CPS. When making representations on charge, parallels could be drawn to the CPS guidance on ‘ Offences against the Person, incorporating the Charging Standard’ contains a section entitled Common assault or ABH: Decision on charge. This states: 'Unless there are aggravating features, the appropriate charge will usually be contrary to section 39 [common assault rather than ABH] where injuries amount to no more than the following: Grazes; Scratches; Abrasions; Minor bruising; Swellings; Reddening of the skin; Superficial cuts' Where the extent of the harm alleged is no more than the sorts of things included in the above list, a sensible and pragmatic reviewing lawyer may take a view on the public interest and/or prospects of success of pursuing the aggravated offence, particularly where a defendant is willing to plead to the lesser offence. It took a year for this matter to come to trial in the Crown Court, and with the current Crown Court backlog that could be considered fairly speedy. Given that dogs are often seized and kept in kennels at great cost and with potential welfare concerns, speedy resolution can be in the interests of all involved. The difference between the aggravated and non-aggravated offences does not just result in a lower potential sentence for the human defendant but has a bearing on the ancillary orders that must or may follow for the dog. A conviction for the aggravated offence carries a presumption that the dog in question should be killed under a 'destruction order'; in such cases the burden falls on the defendant to prove that the dog would not constitute a danger to public safety if released under a 'contingent destruction order' (CDO) instead. The court MUST at least make a CDO, and these can carry stringent conditions which the dog’s life then depends on. Conversely, for a non-aggravated offence there is no such presumption, and in appropriate cases a court could decide to not even make a CDO. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

3 and 4 May 2023 URL : http://www.bailii.org/ew/cases/EWHC/Admin/2023/1243.html Citation : [2023] EWHC 1243 (Admin) Advocates for Animals acted for The Humane League UK (THL), who brought a judicial review against the Secretary of State for Environment, Food & Rural Affairs ('the Secretary of State' or 'Defra') for the use of fast growing chickens bred for meat (broilers). National Farmers Union was an interested party in the case and The Royal Society for the Prevention of Cruelty to Animals (RSPCA) was an intervenor. The facts The case centred around the use of broiler chickens that have been genetically selected to prioritise fast growth to produce the most meat in the shortest time possible. This growth rate causes health and welfare issues, which include: (i) heart attacks, (ii) lameness, (iii) green muscle disease, (iv) hock burns and (v) organ failure. The RSPCA published a report in March 2020, which for the first time looked holistically at health and welfare issues attached to fast growth by comparing three fast growing breeds against a slower growing counterpart. Its executive summary states that the genetic selection of meat chickens for performance contributes to welfare problems such as chronic leg disorders, heart and circulatory problems. It also discusses the reduction in activities and behavioural patterns such as: 'less active, spending less time walking and standing, and more time feeding and sitting, and spent less time engaged in enrichment type behaviours: foraging, perching and dust bathing.' The trigger system assesses the results of inspections that are carried out by the Food Standards Agency (FSA) staff at slaughterhouses to determine if there are any welfare problems on a farm. The welfare conditions that are assessed are: Ascites/Oedema Cellulitis & Dermatitis Dead on Arrival (DOA) Emaciation Joint lesions Septicaemia/Respiratory Total rejections Cumulative Daily Mortality Rate A 'trigger report' is produced if post- mortem conditions exceed a defined threshold in respect of chickens from the same flock. Annex 3 of The Code of Practice for the welfare of meat chickens summarises the thresholds as follows: Process 1: A trigger report is generated if the level of a post-mortem condition is exceptionally high (defined as greater than 6 standard deviations above the average). Process 2: A trigger report is generated if the Cumulative Daily Mortality Rate is unusually high (defined as greater than 3 standard deviations above the average = 7.37%) and, additionally, the level of three or more other post-mortem conditions is high (defined as above the average). The trigger report is shared with the producer and the Animal and Plant Health Agency (APHA) which then identifies farms at highest risk on non-compliance. The law The primary legal framework of this judicial review rests on: (i) Directive 98/58/EC or the 'Farming Directive' and (ii) Directive 2007/43/EC or the 'Chicken Directive' and the domestic transposed legislation. The Farming Directive recognises the need for common minimum standards for the protection of animals that are kept for farming purposes. It ensures no animal must be kept unless it can reasonably be expected, on the basis of its genotype or phenotype, that it can be kept without ‘detrimental effect on its health or welfare’. The Chicken Directive sets down minimum rules for the protection of chickens kept for meat production. It also includes monitoring requirements to ensure that welfare detriment is detected and reported. The above requirements are transposed into UK law through The Welfare of Farmed Animals (England) Regulations 2007 (WOFAR), which places a duty on people responsible for farmed animals to take all reasonable steps to ensure that the conditions under which the animal is bred or kept comply with Schedule 1 . In addition a person responsible for conventionally reared meat chickens must comply with Part 2 of Schedule 5A Schedule 1 includes a similar requirement to the Farming Directive Requirement, this being: Paragraph 29 Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare. Schedule 5A derives from the Chicken Directive and states: Part 2, paragraph 15 (1) An official veterinarian conducting controls under Regulation (EU) 2017/625 in relation to chickens must evaluate the results of the post-mortem inspection to identify possible indications of poor welfare conditions in their holding or house of origin. (2) If the mortality rate of the chickens or the results of the post-mortem inspection are consistent with poor animal welfare conditions, the official veterinarian must communicate the data to the keeper of those chickens and to the Secretary of State without delay. The claim THL asserted that the defendant was in violation of paragraph 29 through the use of fast growing chickens, by virtue of the detriment experienced based on their genetic makeup. THL argued that the Secretary of State had misdirected herself as to the correct interpretation of paragraph 29, which had manifested in a range of unlawful practices and policies, including: A flawed code of practice, which did not offer any clarity on paragraph 29 A flawed position that commercial productivity is a relevant consideration when complying with paragraph 29 A failure to undertake any prosecutions for breaches of paragraph 29 THL put forward its interpretation of paragraph 29 as meaning if animals whose genotype or phenotype is such that, in modern farming conditions, detrimental effects on health and welfare arise, then they cannot be kept. THL claimed that the prohibition was a conditional permission and if this conditional permission was not satisfied, keeping of the animal would be prohibited. THL asked the Court to provide its interpretation of the provision. The claimants also submitted that the Secretary of State had an unlawful monitoring enforcement mechanism termed 'trigger system'. It was argued before the judge that the trigger System needed to factor in the paragraph 29 duty to detect any breaches of that provision. Further, it was argued that the trigger system had set the thresholds for detecting and reporting welfare issues unlawfully high as per the requirements under paragraph 15 Schedule 5A WOFAR and even if a report was triggered, it would not ordinarily lead to an APHA inspection. THL also claimed that action being taken against non-compliant producers outside of the trigger system was remote. THL argued therefore that the system had an effect of concealing rather than revealing the true extent of the welfare problems. A final argument was that the trigger system violates the principle of equal treatment as applied between compliant producers on the one-hand and non-compliant producers on the other. The operation of the trigger system treats compliant and non-compliant producers equally, but without justification. Non-compliant lower-welfare producers whose flocks suffer much higher levels of detriment are being treated identically, through non-enforcement, compared to higher welfare producers whose flocks exhibit much lower levels of welfare detriment and are more likely to be compliant. This is to the benefit of non-compliant producers who avoid regulatory costs without any material sanction, thereby skewing the market. The defence The Secretary of State argued that she had no policy that condoned or permitted the use of fast growing chickens, despite fast- growing breeds being standard in the industry. The Secretary of State acknowledged that there are higher welfare issues and risks with fast- growing breeds; however, it was argued that environmental conditions have a significant influence on the welfare for both fast and slow- growing breeds, such as: lower stocking densities and the use of straw bales or step platforms. As such it was reasoned that there is no scientifically agreed definition of what constitutes as detriment to welfare, and the risks of fast growth does not automatically result in 'unacceptably poor welfare in all circumstances and therefore cannot (based on their genetics) be kept without detriment to their health and welfare'. The Secretary of State argued that the trigger system was often cited as an example of 'best practice' to monitor on- farm welfare issues and that the thresholds chosen were at appropriate levels to ensure proper reporting of poor welfare conditions. It was also claimed that there were other referral and complaints mechanisms. The Secretary of State argued the unequal treatment ground was parasitic on the success of the other two grounds and as such it should fail. The judgment A wealth of scientific evidence was presented to the Court along with the RSPCA report, this included a recent report by the European Food Safety Authority 2022, which concluded that fast growth causes welfare detriment. The Court concluded that it was not its task to form a view on the scientific literature regarding fast-growing chickens [79], but that the task is to review what the Secretary of State has done and to decide whether it falls short in public law terms. The Court found that the Secretary of State assessed the literature and took advice from expert advisers, which led to her reaching the judgment that environmental conditions have some bearing on the health and welfare of fast-growing chickens. The Court found that the conclusion is not irrational, and it cannot be said to have left out material findings to which she should have given attention [78]. The Court was also asked to define the meaning of paragraph 29. The Court found that the construction of paragraph 29 must take account of the potential criminal liability to which its breach can lead and as such required a narrower interpretation than what otherwise may obtain, as such it rules out that paragraph 29 constitutes a conditional permission if this means that keepers of animals are prohibited from keeping them subject to the condition that they can satisfy a criminal court (in practice, the magistrates' court) that as regards their genotype or phenotype they can be kept without detrimental effect on their health or welfare [88]. The Court felt that it was putting the burden too high to expect keepers to be familiar with scientific literature to prove this [91]. The Court ruled that paragraph 29 meant: given the breed of animal chosen for keeping for farming purposes, it must reasonably be expected by the reasonable person responsible for them that given their genotype or phenotype they can be kept in appropriate conditions without any obvious or deleterious effect on their health or welfare [94].The Court found that there was no support in the language or context of 'kept for farming purposes' that meant kept in reasonably foreseeable farming conditions. Rather the Court found that paragraph 29 does not mean kept in any particular farming conditions and that it could mean kept in environmental conditions which improve the health and welfare outcomes of the animals from what might be the case if kept in other conditions. The Court concluded that the obligation under paragraph 29 is on the keeper who must keep the breed chosen in appropriate conditions without any detrimental effect on the animals' health or welfare [93]. Turning to the trigger system, the Court found that paragraph 15(2) of Schedule 5A does not quantify the thresholds to trigger reporting or further action and that the Secretary of State has also established other referral and complaints mechanisms for enforcement [106]. The Court concluded that as a matter of judgment the Secretary of State has chosen these thresholds as the appropriate levels to ensure reporting of poor welfare conditions and that the criticisms do not meet the high threshold for a successful irrationality challenge, especially in this type of technical area where experts can differ [107]. Finally, on the principle of equal treatment, consistency of treatment is regarded as rational behaviour, so that inconsistent treatment is only reviewable if it is deemed irrational. The Court stated that even if it could be shown that the trigger system leads to failures of enforcement, that of itself would not amount to inconsistent treatment and even if inconsistent treatment was established then you would need to show such treatment was irrational. The Court concluded this had not been evidenced [109]. Commentary The fate of billions of animals was hanging in the balance. Despite evidence that fast-growing chickens suffer from lameness, heart attacks, organ failure and burns to the skin, the Court ruled in favour of the government on technical grounds. It is THL’s view that the law clearly applies to the detriment suffered in standard conditions, of which the science proving this happens is plentiful, but in any event adjusting the birds’ environment is not enough to improve their welfare since the complications arise from their genes itself. Whilst the trigger system may have been deemed proportionate by the Court, the issues connected to it still continue. The high thresholds mean unlawful producers go undetected and issues go unaddressed. The judgment essentially shifts the onus on the farmers, requiring them to find the environment where the breeds can be kept without detriment. This is a significant burden when the legislation and guidance is geared towards the standard conditions. An appeal has been launched against the High Court’s decision. Advocates for Animals instructed Brendan McGurk and Ed Brown KC. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

Citation: [2023] NIKB The facts On 24 March 2022, the Department for Agriculture, Environment and Rural Affairs (DAERA) made the decision to implement a non-selective cull of badgers as part of its strategy for controlling bovine tuberculosis (bTB) within Northern Ireland. This decision was made in reference to a consultation that took place in July 2021, which included releasing a consultation paper to the public and asking for their views on how best to eradicate bTB among other things. However for the sake of this case, only the part of the consultation that dealt with badger intervention was discussed. There was also much reference within the March 2022 decision to a submitted business case, this was disclosed to the court and the parties; however this was not disclosed to the public. This cull would involve the controlled shooting (often referred to as ‘free-shooting’) of wild badgers and would be non-selective i.e. infected badgers and healthy badgers would be killed. It was to be delivered and paid for by farmer-led companies. The cull was due to begin in November 2023. Northern Ireland Badger Group (NIBG) and Wild Justice (WJ) raised issue with this approach. In response to the consultation NIBG stated that there was no quantified research that would support the claim that badgers transmit bTB to cattle. They even quoted a section on DAERA’s website which agreed with this statement. In short. The applicants contended that bTB is spread by and between cattle and that there is limited (if any at all) evidential basis for the suggestion that badgers materially contribute to the infection of herds. The applicants therefore submitted that the most efficient way to manage the spread of bTB within cattle would be to use cattle-based control methods instead. It was also stated that the open shooting of badgers was not the ‘only option’ available to DAERA, and that there were a number of more humane methods that could be used instead. They advocated for the use of the ‘Trap, Vaccinate, Remove (TVR)' programme, which involved trapping wild badgers and testing them for bTB. If they were free from the infection, they would be vaccinated and released, but if they were infected then they would be humanely killed. This approach had been taken by the department in a research project during 2014-2019 and provided successful results. Open shooting had also been shown previously to be ineffective in killing badgers immediately; some badgers once shot took up to five minutes to die, whilst many would only be injured and could escape. The law The public law requirements in respect of consultations carried out by public authorities, as to proposal which affect the rights and interests of others, are well established. These requirements are referred to as ‘the Gunning Principles’, which came about following the case of R v North and East Devon Health Authority, ex parte Gunning (1985) 84 LGR 168 . The principles were then re-affirmed in the case of R v north and East Devon Health Authority, ex parte Coughlan (2001) QB 213 ; the principles can also be referred to as ‘the Coughlan Principles’. These principles are: (1) the consultation must be undertaken when the proposals are at a formative stage; (2) there must be sufficient reasons given for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; (3) adequate time must be afforded for this; and (4) the product of the consultation must be conscientiously taken into account when the decision is taken. These principles have been discussed at length within caselaw, which centres on the fact that to be lawful, a consultation process must be fair. The Gunning Principles represent elements of what fairness requires; however, this is a highly context-specific question, depending upon the facts and context of the particular case. In some circumstances, fairness may require that interested persons are consulted not only upon the preferred option but also upon arguable yet discarded alternative options. Under Article 13(1) of The Diseases of Animals (Northern Ireland) Order 1981, DAERA may provide for the destruction of a wild animal population within an area, where a disease, other than rabies, exists within the population of wild animals, which can be transmitted to livestock within the area, and where the destruction of the wildlife population is necessary to reduce the risk or eradicate the disease in livestock. Article 13(2) states that any order must specify the area to which any order will relate and Article 13(3) allows for methods of destruction that would in other circumstances be deemed unlawful be used if the method is deemed to be the most appropriate. The Wildlife Order (Northern Ireland) 1985 provides protection to badgers and their setts. Under Article 10(1) of this order, a person will be guilty of an offence if they intentionally or recklessly kill, injure or take a badger. It is therefore generally an offence to have a badger (either alive or dead) in one’s possession or control. Article 10 does not apply to anything done for the purpose of preventing the spread of disease or for the purpose of preventing serious damage to livestock, if done under or according to a licence granted by DAERA. The Welfare of Animals Act (Northern Ireland) 2011 makes it a criminal offence under Section 4(1) for a person in certain circumstances to cause unnecessary suffering to an animal. Whether or not the suffering is unnecessary is to be determined having regard to a number of considerations set out in section 4(3). The claim The central plank of NIBG and WJ's challenge was an alleged failure to conduct a proper and lawful consultation namely: That DAERA failed to disclose adequate information in the course of the consultation to permit properly informed response; and, that the Minister failed to give conscientious consideration to the product of the consultation in some respects. DAERA and the Minister had referred heavily throughout their March 2022 decision to a business case that had been submitted to them, which outlined the options available to them and the pros and cons of each option. This business case however was never disclosed to the consultees. NIBG and WJ also submitted that the Minister had not been told in detail why NIBG and other consultees had objected to their proposed option, i.e. that the Minister had not been fully informed as to the inhumanness of the open shooting. Northern Ireland Badger Group and Wild Justice were represented by David Wolfe KC and Blinne Ní Ghrálaigh, who were instructed by Leigh Day and Phoenix Law. The defence DAERA relied heavily on evidence that the health problem presented by bTB was a very serious one, including the fact that close to 10% of all herd keepers within Northern Ireland were subject to some form of restriction. It submitted that any approach to eradicate bTB had to address all factors of disease spread and maintenance. DAERA submitted that NIBG and all other consultees had been involved in the consultation process for many years prior to the 2021 process, which was considered in the Ministers March 2022 decision. DAERA also submitted that business cases are not normally published and that there was a risk, in the event that the lengthy business case, that consultees would lose focus on the relevant material. DAERA also submitted that the Minister had been told about the relevant information in responses that NIBG and other consultees had submitted, as this was covered by the responses given by another organisation The Ulster Wildlife Trust (UWT). The Minister had also met with UWT in person to discuss the response. The Minister therefore had properly considered their objections to the proposed option of non-selective open-shooting. The Defendant was represented by Tony McGleenan KC, Philip McAteer and Laura Curran who were instructed by the Departmental Solicitor’s Office. The judgment The judge held that there was no unfairness in the Minister not being told that NIBG and others shared particular concerns, which had been raised by other groups with a similar outlook. The judge felt that this amount of detail was not necessary for the Minister to be able to make his decision. A summary report had been given to the Minister where it was made clear to the Minister that all environmental organisations that responded were against the option that had been chosen. The judge, however, held that whilst the Defendant had identified a clearly preferred option, it declined to provide consultees with the analysis underpinning its selection of that option and therefore the applicants (and other consultees) were not provided with a fair opportunity to respond in sufficient detail. For example, the business case was central to the Defendant's thinking and to the basis for its selection of open-shooting as the preferred option, as such it should have been provided. There was no proper reason for concealing the detailed analysis which lay behind the selection of this option from those who were to be consulted. The judge also held that DAERA had failed to conscientiously consider the product of the consultation exercise, in that the Minister ought to have been advised, but was not, of the evidential basis upon which a number of the consultees contended that the Defendant's preferred option represented an inhumane option which would give rise to unnecessary suffering. The application for Judicial Review was therefore granted. The judge also quashed the Defendant's decision to implement a non-selective cull of badgers by way of controlled shooting as part of DAERA'S bTB eradication strategy. All other aspects of the Strategy remain unaffected by this decision. The judge did however also make it clear that this judgment was to deal with the procedural fairness of the process conducted to date, and nothing in the judgment should be read as any comment upon the substance of the options under consideration, which is a matter for DAERA. Commentary This case highlights the importance of procedural fairness, and puts the onus on the government department to provide all necessary information when seeking responses from consultees. It had been discussed at length throughout the case that one of the biggest concerns raised by consultees had been the inhumanness of DAERA’s proposed option of the open-shooting, especially when there was very limited scientific evidence to support such an activity. Scientific evidence had yet to show any quantifiable link between badger culling and the spread of bTB to livestock, and instead supported cattle-based intervention programmes over that of badger-based. The case also shows that a balance needs to be struck between the most efficient option for intervention and the most humane option. Since the Minister had not been provided with the evidential support that was contained within the consultees responses, he had therefore not been able to fully consider whether the proposed option was humane. Advocates for Animals hope that this case will encourage government bodies to increase their levels of transparency when it comes to consultation practises and will also encourage government ministers and decision makers to consider a consultees response in more detail. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

This case was about a break up and a subsequent dispute over the ownership of a dog that was rescued during the relationship. Advocates for Animals (AfA) represented the Defendant (who later became the Appellant), SK, in the appeal proceedings. AfA would not normally act in a pure 'property' dispute. However, the case had unusual features and presented an opportunity to question the legal principle that, as chattels, animals are subject to the same rules of property law as inanimate objects. AfA believes the interest of the animal should be taken into account.  The facts The Claimant (DM) and The Defendant (SK) planned to adopt a dog in late 2020/early 2021. This dog would be a companion for SK’s other dog The rescue charity required the new home to have a resident dog to keep the rescued pup company, this was satisfied by SK’s other dog.  A home check took place on 9 February, which was signed and dated by SK as ‘the person being home checked’. On 19 March 2021 the contract was sent to DM’s email address and transferred the adoption fee, with SK claiming to have paid more household bills that month. SK took the first week off work so that she could help the dog settle in and continued to work from home thereafter.  DM did not work from home.  SK set up the dogs pet insurance with PetPlan and registered the dog at the vets soon after he arrived and took him to his first ‘puppy health check’ on 25 May 2021. SK also organised his first flea and worm treatment at this appointment. SK covered all the vet treatment.  SK ended the relationship with DM in April 2021, but they remained living together on amicable terms until 31 August 2021. When SK and DM moved into separate properties on 31 August 2021, the dogs stayed with SK, with DM taking occasional custody of the dogs.     This arrangement was suddenly called into question when on 8 January 2022, after taking the dogs for the night, DM sent a message to SK stating that having a dog share doesn’t work long term. DM later returned the dogs to SK.  Despite the previous event, on 18 January 2022, DM asked to see the dogs. SK went for a walk with him. The walk quickly became tense and when SK went back to her car, DM took the dog from the boot and started running to his car with him. Some strangers helped get the dog back, the police were called and the matter was reported.  On 8 February 2022, SK received a letter of claim for the possession of the dog.  First instance hearing Apart from DM having initial legal counsel, both parties were litigants in person in the case of first instance.         Deputy District Judge Jabbour, on 3 February 2023, found in favour of DM, primarily on the basis that he signed the adoption contract and transferred the adoption fee. The judge stated the following: I made clear to the parties at the beginning of the hearing, and I should state I explained that this was very much a binary process, that [the dog], or indeed any other dog or pet, is treated as property in the eyes of the law, these are civil proceedings as the parties were not married. Whilst the parties may have, and do have, strong attachments to [the dog], in the eyes of the law [the dog] is property and as the claim is effectively pleaded as such, the Court approaches the matter on that basis, notwithstanding the strong feelings of attachment that both parties may have for [the dog].  Therefore, for all of those reasons I find that on the balance of probabilities the intention was that [DM] would be the sole owner and adopter of [the dog], and that is the adoption contract that was signed. Of course there is no doubt that [SK] did look after [the dog] very well. [DM] is not suggesting otherwise. The fact that she is an experienced dog owner and handler and trainer is noted, but unfortunately those are not relevant to the issue of legal ownership and intent. Again, I reconfirm that the payment of the adoption fee is again consistent and supports my finding that [DM] was intended to be the sole owner. SK came to Advocates for Animals to appeal the decision.  The decision as to who is the owner was decided on a question of fact, as such the appeal focused on the point of law that after finding that DM was the owner, the judge should have used their discretion to decide the most suitable remedy. Permission was granted on this basis.  The appeal Relevant law The Torts (Interference with Goods) Act 1977   Subsection 3(1)  In proceedings for wrongful interference against a person who is in possession of in control of goods relief may be given in accordance with this section, as far as appropriate.  Section 3(2)  The relief is – an order for delivery of the goods, and for payment of consequential damages, or an order for delivery of the goods, but giving the defendant the alternative of paying damages by reference to the value of the goods, together in either alternative with payment of any consequential damages, or damages. Section 3(3) (a)relief shall be given under only one of paragraphs (a), (b) and (c) of subsection (2)             (b)relief under paragraph (a) of subsection (2) is at the discretion of the court, and the claimant may choose between the others. Sharma & Sharma v Pumridge, Roper & McNeil 1991 WL11780401  This case concerned two dogs. There was a judgment in the County Court ordering delivery up of the dogs to the plaintiffs by two of the Defendants. These dogs had bred and then been sold and delivered to the plaintiffs. The plaintiffs lived in comfortable premises and had a run and shed for the dogs which escaped on 05.12.87 and were found running loose and delivered to after seven days under the Dogs Act 1906 to an organisation called Collie Rescue which placed the dogs with two of the Defendants where they remained. In the Court of Appeal, the court’s discretion under subsections 3(2)(a) and 3(3)(b) of the 1977 Act was considered. Lord Justice Dillon stated in his judgment: Thus an order for delivery up of the goods without any option in the defendant of of paying damages is an order to be made at the discretion of the court. This is in line with long-established law…….[LJ Dillon then quotes from the case of Whitely Limited v Hilt [1918] 2KB 808]….  But, in my judgment, as the matter is in the discretion of the court and indeed on the authorities the order for delivery up of a specific chattel is an exception rather than the general rule, factors such as the time the animals had been with Miss Roper and Mrs McNeil, and the fact that for the last year or thereabouts Mr and Mr Sharma had acquired two more collie dogs, are matters which the judge was fully entitled to take into account when considering whether or not to exercise the discretion under section 3(2) of the 1977 Act. He was persuaded to the contrary, but wrongly, in my judgment, so persuaded. Therefore the position is that he has not exercised any judicial discretion under that section as expressly required by the words of that section.   …….. One cannot consider the one factor as a reason why an order for specific delivery up should be made without also taking into account the other factors……. Bearing the lapse of time in mind and the other matters I have just mentioned, I frankly regard it as silly that these dogs should be taken now, more than a year after the judge’s order, when even then there has been the long lapse of time since the dogs were last with the plaintiffs, and be delivered back to the plaintiffs who already have their two other collie dogs. I take the view that this is, and indeed was at the time it was tried by the judge, emphatically as case where an award of damages is sufficient compensation.                                   Lord Just Stocker agreed stating:  …..it seems to me that only harm could be done to either of the protagonists or indeed the dogs were they now to be uprooted and returned to their original owners, the Sharmas….In my view, the exercise of discretion which my Lord has proposed and with which I wholly agree accords not only with the proper exercise of discretion but with the application of common sense.  Orton, Clarke & Jamieson v Lane , Case Number E00HF536 The county court case of Orton v Lane involved the possession of a rescue dog called Sylvie, and also concerned the court’s discretion under section 3 of the 1977 Act and the failure of a District Judge to exercise her discretion or consider any options available to her. You can read that case summary here .   The Learned Judge considered the relief under section 3 and referred (at paragraph 23) to the discretion available to the court which the District Judge   in that case, as here, had failed to recognise. There were options available to the District Judge which she had failed to consider. The Learned Judge said that|:- in failing to decide what remedy was available, she failed to exercise her discretion and it is now for me to exercise my discretion in her place. The judge allowed the appeal against an order for delivery up of the dog and described Sylvie as 'unique' and 'a sentient being' and that 'she had a relatively small market value but clearly a substantial emotional one'. The Learned Judge stated there were 'two sides to be balanced'. The judge found that damages were an adequate remedy for the deprivation of Sylvie and allowed the appeal, ordering a payment by way of damages instead of delivery up of Sylvie and order that, on payment of the damages, the ownership of Sylvie would be transferred to Ms Lane, the Appellant. The judgment On 8 December 2023, District Judge Simpkiss found in favour of the Appellant and allowed the dog to stay with SK, setting aside Judge Jabbour’s order. The judge also ordered that DM’s ownership of the dog be extinguished and instead have it vested in SK.  SK was ordered to pay nominal damages, a deemed necessary measure when exercising the discretion, which was set off against the cost of maintenance for the dog; bringing the sum payable to DM to zero. In addition SK was awarded her fixed costs in the proceedings.  In reaching his decision, Judge Simpkiss found that Judge Jabbour, after finding DM was the owner of the dog, had not exercised her discretion under the 1977 Act as to the most appropriate remedy.  Judge Simpkiss then went on to consider the most appropriate remedy, the factors he considered included:  The dog was purchased jointly  When they broke up they had a shared custody arrangement, but the dog primarily resided with SK Ownership by DM was technical SK looked after the dog well The dog was bonded with the other dog that lived with SK Commentary  The first instance judge found DM was the owner on a question of fact, this being that DM signed the agreement and paid the fee. SK disputes that it was ever the intention that DM owned the dog. The appeal was confined to a question of law, this being the the lack of discretion exercised by the first judge. When arguing on discretion, SK was able to make representations that the best interest of the dog should be taken into account above their property status. In doing so she was able to overturn the previous decision.  Our clients are often outraged that nonhuman animals under their care are considered mere property, or 'things', under law, and they believe that this does not reflect the status or value they deserve. We will continue to represent clients when animals are treated as mere property, without their real value and interests taken into account. Advocates for Animals was instructed as the solicitors for the Appellant, who were represented at trial by Edmund Walters of 42 Bedford Row Barristers.  Brighton County Court: 8 December 2023  Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

Fitzgerald v CPS [2024] EWHC 869 (Admin):  https://bailii.org/ew/cases/EWHC/Admin/2024/869.pdf On 16 April 2024, the High Court quashed a dog destruction order and replaced it with a contingent destruction order. This meant that instead of being euthanised, a dog called ‘Yosser’ would be rehomed with a new human under certain strict conditions. The case reviewed and clarified the approach to deciding whether a dog should be destroyed following their human companion’s conviction under s.3(1) of the Dangerous Dogs Act 1991; and in particular the status of an uncontested expert’s report in a case of this kind.  The facts Yosser had been in the care of a vulnerable man who had mental and physical health problems. Yosser’s human companion was so mentally and physically unwell that he ended up being sectioned under The Mental Health Act. During his decline, he sadly lost control of Yosser on a number of occasions.  There had been an incident on 24 April 2021 where Yosser bit a visiting surveyor but he had not pieced the skin, and no formal action had been taken.  A few months later on 27 July 2021, Yosser had bitten another dog and, when the keeper of the other dog got involved, they had feared that they might be injured too. No injury was actually caused to any human in that case. Yosser’s human companion pleaded guilty to an offence contrary to s.3(1) of the Dangerous Dogs Act 1991, and a 'contingent destruction order' (CDO) was imposed in respect of Yosser, requiring that he be euthanised unless kept on a muzzle and lead when in public.  On 22 February 2022 there was a third incident that gave rise to this case. Whilst his muzzle was being readjusted, Yosser pulled away and jumped up and nipped or mouthed the victim’s arm, leaving a mark but not breaking the skin.  Yosser’s keeper pleaded guilty to an aggravated offence contrary to s.3(1) of the Dangerous Dogs Act 1991 and the magistrates made a 'dog destruction order' (DDO). There was no expert report before them and it was unclear what conditions were forward that could have persuaded the court to suspend destruction a second time.   Yosser’s keeper had a brother who was an experienced dog owner and fond of Yosser. He got involved and helped secure two assistance specialist solicitors, a specialist barrister and an expert in dog behaviour; and an appeal was made to the Crown Court.  The expert provided a detailed report and concluded that Yosser would not be a danger to public safety if rehomed to the brother; and that the brother had a suitable home and was a fit and proper person to take charge of him and could be trusted to adhere to a muzzle and lead condition.  The prosecution read the report and confirmed in writing that they did not dispute the opinion and that the expert did not need to come to court to give evidence or be challenged on it.  Despite this, the Crown Court dismissed the appeal and upheld the destruction order. They noted that the expert had not assessed Yosser in a public place as he had been seized by police at the time. They did not deal expressly with why rehoming to the brother would not address any concerns about Yosser and simply said that they gave 'great regard' to the history in the case and that they had to uphold the Destruction Order because they could not be satisfied that the dog would not constitute a danger to public safety.  The issues On appeal from the Crown Court to the High Court by way of case stated, there were four questions posed:  QUESTION 1: Did the Crown Court unlawfully and/or unreasonably fail to identify a rational or proper basis and/or give cogent reasons for departing from uncontradicted and unchallenged expert evidence that the dog would not constitute a danger to public safety if released subject to certain conditions?  QUESTION 2: Was it unreasonable and/or irrelevant and/or unfair to take into consideration that the expert had not assessed the dog in a public place, given that the dog was at the time seized by police and so could only be inspected in circumstances prescribed by the police?  QUESTION 3: Did the court fall into error by failing to determine whether or not Terry FITZGERALD was a fit and proper person before deciding that it could not be satisfied that the dog would not be a danger to public safety if ownership and/or keepership were transferred to him?  QUESTION 4: On the facts of this case, was the conclusion that there were no conditions whatsoever that could be put in place that would ensure, on balance, that the dog would not constitute a danger to public safety so unreasonable that no reasonable tribunal could have come to it?  Held Uncontested expert evidence  The court considered the leading criminal and civil cases on uncontested or uncontroverted expert evidence. Despite following from a criminal sentence, authorities suggest that a CDO or DDO are in fact part of the civil jurisdiction of the magistrates’ court and so the leading civil case of TUI UK Ltd v Griffiths [2023] UK SC48 was considered in particular depth.  As explained at paragraphs [31]-[32], the effect of applying that case to these facts was that, unless certain exceptions applied that would provide a valid reason to depart from it, fairness required that uncontested expert evidence be accepted. The Crown Court’s decision was therefore unfair.  Seized dog not assessed in public  The only attempt the Crown Court had made to grapple with the expert report or its conclusions was the notice it took of the fact that the expert had not assessed the dog in public. At paragraph [24], the High Court was 'wholly unpersuaded by this attempt to minimise [the expert’s] findings'.  Three reasons were given at paragraph [24]:  'First, of course, she was unable to see Yosser in public areas because he was detained by the police. Secondly, [the expert] herself would have been only too aware of the fact that she had not seen Yosser in a public place but, on the face of her report, that did not affect her conclusions. Thirdly, if this was a real point of doubt or difficulty, and one which at least potentially undermined [the expert]’s conclusions, then fairness dictated that she should have been asked about it, rather than her report and recommendations simply being set to one side'. Proposed change of keeper No challenge had been made to various assertions in the brother’s statement, character references or the expert’s report that he would be a fit and proper person to take on Yosser. This was significant in a case where it was quite clear that Yosser’s former companion was not a fit match for him.  The High Court considered that the 'the failure to grapple with that issue is one of the main omissions in the Crown Court judgment' [paragraph 42].  A review of relevant authorities at paragraph [16] stressed 'Where a CDO is proposed, and particular conditions are put forward, a court which rejects those conditions must explain why they would not address the danger posed by the dog.' The High Court ruled at paragraph [35] that in this case, at best the reasons for the Crown Court’s rejection of this part of the proposal were implicit (which was contrary to the authorities reviewed). At worst, they were not addressed at all. Either way, the decision was unlawful.  So unreasonable no reasonable tribunal could agree The final ground of challenge was that the decision of the Crown Court was 'so unreasonable that no reasonable tribunal could have come to it'. As an appeal by way of case stated is only allowed on a point of law, a challenge to the merits of the decision being appealed has a very high threshold.  This final ground was something of a catch all ground, where the arguments mirrored those made in respect of the issues above, but took aim at the merits rather than the legality or fairness. At paragraph [43] Lord Coulson stated in answer to the question of whether the high threshold for irrationality was met, 'It is probably not necessary to decide this question, because of my answers to the first three questions. But if required, I would say Yes, for the reasons set out above.' Commentary The ruling in Yosser’s case has been welcomed by those working in defence of allegedly dangerous dogs. Save our Seized Dogs Ltd, the company who funded Yosser’s appeal said 'This is not just a victory for Yossah, this case has set a precedent and can now be used to protect expert witness reports in any future cases'. Samuel March of 9 King’s Bench Walk, the specialist animal protection barrister acting for the appellant, said: 'This is first and foremost a life-saving ruling for Yosser, and a huge relief for his family and those who have supported them through this process. This is an important case to use in future cases where there has been a breach of a previous CDO. Very often, failure to adhere to basic safety measures imposed by a previous court order will be more indicative of safety issues at the human end of the leash. Yosser’s previous human companion was a sweet man, without any malice – but he was seriously unwell and not in the right state to take on the serious responsibility of a strong and energetic dog. This case makes it clear that even a breach of a previous CDO need not always be fatal for a dog – it may very well be that the dog just needs to be re-homed to someone experienced, willing and able to take the order seriously. Finally, the case puts to rest an uncertainty around the status of unchallenged experts in these cases. It has become common for the prosecution to agree, or at least not contest, expert reports about dogs. However, even where there is no dispute, there has been a lingering risk that courts would ignore the expert and go on to make life-and-death decisions about dogs they have never met and do not have the specialist knowledge to reliably form their own views about. Thanks to this case, we now have a considerable degree more certainty in terms of what an uncontroverted expert reports means for the outcome in this sort of case. Hopefully this will help avoid the wrongful destruction of other dogs in Yosser’s position. We had reached a point where experts were wasting time and money having to travel around the country to attend hearings on the off chance that a court might questions for them, even where it was clear that the prosecution did not'. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

Angie Van Dijk July 2024 On June 4th, the administrative court (CBb) in the Netherlands ruled in the so-called “chicken catching” procedure (see also Uitspraak CBb kippenvangen ). The CBb has also devoted a press release to this ruling, which emphasises the social importance of this ruling: Persbericht CBb kippenvangen . Background to the case This legal dispute has been running since 2020 and concerns the question of whether chickens can be caught by their legs before they are put in transport crates. Council Regulation (EC) No 1/2005 ( The Transport Regulation) is clear: catching chickens by the legs is against the law. Nevertheless, most chickens in the Netherlands (and EU/UK) are caught by their feet, resulting in many capture injuries such as bruises and broken bones.  This dispute has an impressive history: The Dutch regulator on animal welfare (NVWA) initially declared Dutch animal protection group Wakker Dier’s request for enforcement action against this practice inadmissible (2021), which means that it did not substantively assess the enforcement request. The CBb put a stop to this in 2021 and determined that the NVWA must indeed enforce compliance with the Transport Regulation. The NVWA subsequently carried out inspections on poultry service companies (catching teams) and imposed fines for violating the Transport Regulation. The poultry service companies have objected to these fines. The NVWA subsequently converted these fines into warnings in a new decision (a de facto promise that these violations would not be enforced). Wakker Dier has appealed against this decision to issue warnings to the Rotterdam court. The Rotterdam court ruled in favour of Wakker Dier in 2022, i.e. the NVWA must enforce the law on catching chickens by the legs and could not suffice with issuing warnings. The NVWA then made a new decision: the companies had to stop catching chickens before the end of August 2024. Both Wakker Dier and the poultry service companies have appealed against this to the CBb. The core questions on appeal before the CBb were whether (1) the Rotterdam court rightly ruled that the NVWA must enforce the Transport Regulation and that a warning was insufficient and (2) whether the NVWA has correctly imposed orders subject to a penalty. Wakker Dier believes that the compliance period until August 2024 is too long (after all, the issue has been running for a number of years); the companies believe this period is too short, and they also think the penalty connected to the order (€60,000) is too high. CBb ruling In this long-awaited ruling, the CBb decided the following:  Catching chickens by the legs is prohibited on the basis of the Transport Regulation. The fact that the newly proposed European Transport Regulation may contain an exception to this ban for chickens does not change this.  The ruling of the Rotterdam court is confirmed. This means that the NVWA cannot just issue a warning but must actually enforce the Transport Regulation with a penalty or an order subject to a penalty. The NVWA has not properly substantiated the orders subject to a penalty. This applies to both the amount and the length of the compliance period. These decisions are therefore annulled, and the NVWA must make new decisions. The interests of animals and the interests of companies must be weighed against each other. The latter appears to be a new development in case law. What’s next?  The NVWA must make a new decision before 15 August 2024. Wakker Dier will keep a close eye on this decision. To stay informed see: https://www.wakkerdier.nl/doe-mee/doneren/nalaten/?utm_source=GoogleGrants&utm_medium=cpc&utm_campaign=TR-20462138557&gad_source=1&gclid=CjwKCAjwnqK1BhBvEiwAi7o0X0dBwq2NjspenRelxncgCDI1N1EvJUSl93TdbHbz8agGsBXmodUvbhoCWRAQAvD_BwE Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

23 and 24 October 2024 URL: https://www.judiciary.uk/wp-content/uploads/2024/12/Humane-League-UK-v-Secretary-of-State-for-Environment-Food-and-Rural-Affairs.pdf   Citation : [2024] EWCA Civ 1560 Advocates for Animals acted for the Humane League UK (THL) in this recent appeal concerning the welfare of 'fast-growing chickens'. The case was against the Secretary of State for Environment, Food and Rural Affairs (Secretary of State). The National Farmers Union was an interested party, and the Royal Society for the Prevention of Cruelty to Animals (RSPCA) and the British Poultry Council were intervenors. Background THL brought a judicial review against the Secretary of State; the claim for judicial review was dismissed by the High Court in a judgment dated 24 May 2023 (The King (on the application of the Humane League UK) v Secretary of State for Environment, Food and Rural Affairs [2023] EWHC 1243 (Admin)). You can find the background to the case in our previous post here , which sets out the relevant legislative framework and summarises the scientific evidence in relation to the serious welfare issues suffered by fast-growing chickens. THL appealed this decision to the Court of Appeal. References in [ ] are to paragraphs of the judgment of the Court of Appeal. The issue on appeal 'At the heart of this appeal' [40] was the meaning of Paragraph 29 of Schedule 1 to the Regulations, which provides: 'Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.' An animal’s genotype refers to its genetic makeup; its phenotype refers to its observable characteristics, which are determined by its genotype. THL also wished to appeal the High Court failing to conclude that, as a result of misdirecting himself as to the meaning of Paragraph 29, the Secretary of State consequently erred in (i) failing to articulate the proper meaning of Paragraph 29 in the Code of Practice; (ii) wrongly suggesting, in the Code of Practice, that productivity considerations could be weighed against animal welfare detriment; (iii) failing to undertake any prosecutions; and (iv) failing to interpret paragraph 15(2) of Schedule 5A of the 2007 Regulations such as to give effect to Paragraph 29. THL also argued that the thresholds that have been set within the trigger system were unlawful and that the Secretary of State had failed to discharge his Tameside duty of inquiry, having not referred to any scientific evidence or literature despite claiming a ‘nuanced view’, a view that was not in fact ever articulated. Judgment on appeal The challenges regarding the trigger system and the Thameside duty were not pursued at the hearing.  The Court of Appeal agreed with THL that the judge at first instance erred and that Paragraph 29 is a prohibition which is subject to a proviso, meaning 'The keeping of animals for farming purposes is prohibited unless it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health and welfare' [46]. The Court of Appeal agreed with the Secretary of State that Paragraph 29 is a prohibition on the keeping of farmed animals whose genotype and phenotype mean that, regardless of the conditions in which they are kept, they cannot be kept without detriment to their health or welfare [50]. However, the Court of Appeal provided an explanation of what this means in real terms, namely recognising the difference between detrimental characteristics which are inherent in the nature of the breed and which cannot be mitigated by changing the environmental conditions in which the animal is kept and those which can be so mitigated. Most noticeably the Court of Appeal stated that if the conclusions in the RSPCA report are correct  fast-growing chickens, for example fast growing chickens suffer from increased heart problems with consequential higher mortality, or leg development disorders because the chicken cannot support its own weight, then no improvement in the environmental conditions in which such chickens are kept could mitigate those detrimental effects upon their health or welfare, and therefore the keeping of such a breed would be prohibited by Paragraph 29 [52].  The Court of Appeal also pointed out that even if environmental conditions can mitigate the detriment, then whilst the keeping of that breed may not be prohibited by Paragraph 29, it might constitute a failure to take reasonable steps in all the circumstances to ensure that the needs of the animal were met, contrary to Section 9 of the Animal Welfare Act 2006 [51]. In relation to the 'can reasonably expect' test in Paragraph 29, the Court of Appeal confirmed that the test is an objective one [53]. The Court of Appeal disagreed with the judge at first instance who had held that the ‘reasonable person’ could not be taken to know the content of the RSPCA report and the other scientific evidence relied upon by THL. The Court of Appeal confirmed that this was a question of fact and stated that '…it is reasonable to expect that a reasonable person keeping or intending to keep fast-growing chickens, who is after all responsible for their health and welfare, would at least be aware of the controversy about the keeping of such chickens and would take some steps to inform him or herself about it' [53]. Importantly, the Court of Appeal, disapproving of the gloss introduced by the judge at first instance, clarified that the threshold for 'any detrimental effect' in paragraph 29 is a low one and would be satisfied unless that detriment was only 'minimal or momentary' or occurred 'only in a tiny proportion of such animals' [57]. Notably, the Court of Appeal went on to state that Paragraph 29 'unequivocally prioritises animal health and welfare over commercial benefit', that '…there is no question of balancing the advantage of higher productivity against the detrimental effect(s) on an animal’s health or welfare' [60] and that: 'If a given breed can reasonably be expected to suffer a detrimental effect on its health or welfare because of its genetic make-up, the prohibition on keeping that breed of animal applies regardless of any commercial advantages which it may have,' per Males LJ at [60]; and If the proviso is satisfied '…then that particular breed cannot be kept as farmed animals, no matter how profitable or convenient the breed might be for a farmer. The 2007 Regulations do not permit the well-being of such a breed of animal to be traded off against the economic interests of farmers' per Snowden LJ at [75]. Despite the significant win by THL challenging the Judge at first instance’s interpretation of paragraph 29 and the Court of Appeal largely agreeing with THL's interpretation, the appeal was dismissed [62]-[72]. This was due to the Court of Appeal finding that the first case was not an appropriate case for a declaration in the abstract, but rather the interpretation of paragraph 29 reached by the Court will be for the Secretary of State to consider as it pertains to its practices and the Magistrates Court should it be faced with deciding on a case involving an offence under paragraph 29.   Commentary The ruling by the Court of Appeal represents a significant legal step towards ending the practice of keeping fast-growing chickens, who suffer as a result of having been bred to prioritise fast growth, productivity and profit at the expense of their welfare. The message from the Court of Appeal is clear: in the context of the selective breeding of farmed animals, profits and productivity cannot be prioritised over welfare.  The judgment provides welcome clarity on the interpretation and application of Paragraph 29 of the Regulations and confirms that the keeping of any farmed animal who can reasonably be expected to suffer any detriment as a result of its genetic make-up is prohibited. This case draws vital attention to the extreme suffering experienced by billions of chickens, and despite the Court of Appeal not being in a position to rule on the science in the context of this judicial review claim, it nonetheless represents an important step towards securing enforcement action to prevent the farming of animals bred into suffering in pursuit of profit.  Local authorities are entrusted with the enforcement of Paragraph 29, breaches of which constitute a criminal offence triable in the Magistrates’ Court. The Court of Appeal’s judgment clarifies the legal position and therefore paves the way for further legal challenges if local authorities and the government do not act swiftly. Advocates for Animals acted for THL and instructed Brendan McGurk KC and Edward Brown KC as counsel.  Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .