Queen’s Bench Division
Published October 16, 2008
Regina (Royal Society for the Prevention of Cruelty to Animals) v Secretary of State for Environment, Food and Rural Affairs
Before Sir Robin Auld Judgment October 7, 2008

The control of dangerous contagious poultry disease by mass slaughter using ventilation shutdown was compatible and proportionate with European Union law.

Sir Robin Auld, sitting as an additional judge in the Administrative Court of the Queen’s Bench Division, so held when dismissing an application for judicial review by the Royal Society for the Prevention of Cruelty to Animals of the last-resort control of poultry disease by the Secretary of State for Environment, Food and Rural Affairs. Mr Rhodri Thompson, QC and Ms Kate Cook for the RSPCA; Mr Hugh Mercer, QC, for the secretary of state.

SIR ROBIN AULD said that the regulatory provision known as ventilation shutdown, the process of cutting off ventilation where poultry were housed so as to terminate them by hyperthermia or organ failure, had come into effect on April 29, 2006, by way of the Welfare of Animals (Slaughter or Killing) (Amendment) (England) Regulations (SI 2006 No 1200) which amended paragraphs 1 and 2 of Schedule 9 to the Welfare of Animals (Slaughter or Killing) Regulations (SI 1995 No 731).

The 1995 Regulations implemented Council Directive 93/119/EC of December 22, 1993 (OJ December 31, 1993, No L340).

His Lordship stated that the statutory provisions for ventilation shutdown were compatible with article 10(1) of, and Annex E to the 1993 Directive. Those provisions did not require a guarantee that all avoidable excitement, pain and suffering would be achieved notwithstanding the aim of the 1993 Directive for a rapid transition to death.

That was not always possible, despite due professional care, because of the nature and urgency of adopting ventilation shutdown for use as a last resort.

The specific requirements of Annex E were to take appropriate measures to kill animals as soon as possible and, in any event, before they regained consciousness and to not interfere with them until after death. Those were requirements directed to means and not as to the success of such means or a guarantee that death would ensue in every case without more from unconsciousness.

As to the principle of proportionality inherent in article 3 of the 1993 Directive and EU law, his Lordship considered that the clear objective in the 2006 Regulations of the protection of public health and safety, in conjunction with considerations of fact and fear associated with the issue of compatibility, there was no basis for striking down the provision allowing ventilation shutdown as a method of last resort for the protection of the public where it was judged by those advising the secretary of state that a serious outbreak of dangerous disease demanded it.

Solicitors: Leigh Day & Co; Treasury Solicitor.

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