FORM N461, SECTIONS 6, 7 AND 8:
DETAILED STATEMENT OF GROUNDS,
DETAILS OF REMEDY SOUGHT AND
STATEMENT OF FACTS RELIED ON
1. This claim is brought by Compassion in World Farming Limited (‘CIWF’). The Defendant is the Secretary of State for the Environment, Food and Rural Affairs. For ease of reference, this claim form refers to the Defendant by the initials of her department, DEFRA.
2. CIWF seeks to challenge three matters:
(1) The failure of DEFRA properly to implement and enforce Article 4 of Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes (‘the Directive’).
(2) The failure of DEFRA to apply the correct burden of proof when deciding how to enforce the requirements of Article 4 of the Directive and paragraph 21 of the Annex thereto.
(3) The failure of DEFRA to comply with Paragraph 14 of the Annex to the Directive (Paragraph 22 of Schedule 1 to the Welfare of Farmed Animals (England) Regulations 2000 SI 2000/1870 ('the Regulations')), by refusing to adopt a policy of prosecution in cases where broiler breeder chickens are subjected to restrictive feeding practices, which lead to the birds experiencing hunger.
STATEMENT OF FACTS RELIED ON
Procedural history of the claim
3. CIWF raised points (1) and (2) above with the Secretary of State in a letter dated 15 November 2002. By letter dated 7 January 2003, Elliot Morley, the Minister for Fisheries, Water and Nature Protection at DEFRA, responded on the Secretary of State’s behalf. CIWF was not satisfied with that response, and wrote again on 14 January. By letter dated 20 January, Elliot Morley suggested a meeting between the parties. CIWF took up this proposal, and the parties met on 4 February 2003. CIWF set out its views in advance of the meeting by letter of 28 January, which also included reference to point (3) above.
4. The meeting failed to achieve a resolution of the parties’ differences. Accordingly, CIWF's solicitors wrote to DEFRA under the Pre-Action Protocol for Judicial Review on 17 February 2003. DEFRA responded on 11 March 2003. By further letter dated 20 March 2003, CIWF's solicitors confirmed that CIWF was not satisfied with that response, and also sought more detailed consideration of point (3). DEFRA responded on 4 April 2003. CIWF remained of the view that DEFRA’s position is not lawful, and accordingly now issues this claim form.
Timing of the claim
5. CIWF wrote to DEFRA on 15 November 2002 inviting the Secretary of State to take the action which, in its view, was necessary to give proper effect to the Directive. DEFRA's refusal to do so is contained in its letter of 7 January 2003. However, DEFRA's letter addressed neither the scientific material nor the legal arguments which CIWF had invited DEFRA to consider. Accordingly, it was necessary to explore the grounds of challenge in subsequent correspondence, in order to gain a full understanding of DEFRA’s views. This included correspondence conducted in accordance with the Pre-action Protocol for Judicial Review claims. In addition to correspondence, the parties attempted to resolve their differences at the meeting of 4 February 2003. Those attempts having failed, CIWF now makes this claim, which is made promptly and in any event within three months of the decision of 7 January 2003. CIWF has made it clear to DEFRA, at all times since the decision letter, that it was contemplating making a claim for judicial review.
6. CIWF was established as an unincorporated body in 1967 and was constituted as a company limited by guarantee in 1992. On 1st April 1995 CIWF’s activities were re-organised: the limited company's name was changed to Compassion in World Farming Supporters and since that date its lobbying and campaigning activities have been carried out by its wholly owned subsidiary company, Compassion in World Farming Limited. Its objects include the promotion of the welfare of farm animals suffering or likely to suffer from cruelty or deprivation, or suffering or likely to suffer due to genetic manipulation or pharmaceutical applications or surgical procedures.
7. CIWF has for many years been active in trying to secure reforms to end the broiler health and welfare problems associated with the use of fast-growing genotypes. CIWF Trust, which is part of the CIWF group, has published four reports (in 1993, 1995, 2000 and 2003) on intensive broiler production. The reports are based on published scientific literature and examine, inter alia, leg and heart problems and the use of restricted feeding regimes for broiler breeders, all of which arise from the use of fast-growing genotypes.
8. CIWF has over several years written on a number of occasions to UK Ministers and government officials and to the European Commission to express its concerns about the detrimental impact on broiler health and welfare of fast-growing genotypes. It has also had meetings with UK Ministers and officials and the European Commission to discuss its concerns, and to examine ways in which these health and welfare problems can be constructively addressed.
9. CIWF has advised MPs who have introduced Private Member’s Bills designed to end the use of fast-growing broiler genotypes. It has also worked closely with a Peer who steered such a Bill through the House of Lords, as well as with MPs who have tabled Parliamentary Questions or Early Day Motions on this issue.
10. CIWF has appeared as claimant in two judicial review claims in 1990 and 1995. In both cases, its standing was accepted by the High Court. In addition, in two judicial review claims in 1995, the Court decided that CIWF was a proper person to be heard under the then Order 53, r. 9 (1). Because of its depth of knowledge and expertise in the field of animal welfare, and in particular the health and welfare of broiler chickens, CIWF is a proper person to raise these issues before the Administrative Court.
[ed.- two reports were developed by petitioners to support this case. See, Feed Restrictions of Broiler Breeders and Leg and Heart Problems in Broiler Chickens.]
11. This claim concerns the health and welfare of fast-growing genotypes of broiler chickens (i.e. those kept for their meat). Broiler chickens are by far the most numerous of all farm animals. Every year over 800 million broilers are reared in the United Kingdom, nearly all in factory farms. These chickens have been selectively bred to grow very rapidly.
12. There are two groups of broiler chicken: ordinary broilers, who are reared for their meat, and the breeding flock, whose role is to produce the chicks who are killed for their meat.
13. Ordinary broilers are slaughtered at around six weeks of age. CIWF Trust’s 2000 report, ‘The Welfare of Broiler Chickens: An analysis of the European Scientific Committee report of March 2000’ explains that:
‘Standard intensively farmed broiler chickens are reared to their slaughter weight (typically around 2 kg) very rapidly. They reach slaughter weight within about 40 days of being hatched, whereas they would not reach adulthood until about five or six months. Broilers are thus very young animals for the whole of their fast growing period. By selective breeding, the length of time broiler chicks take to grow to 2 kg has been halved in the last 30 years and between 1976 and 2007 it is likely to have been reduced by one day every year.’ (para 2.1)
14. There is a large and growing body of scientific evidence on the health problems which are prevalent among fast-growing broiler genotypes. This evidence is summarised in the attached paper which was submitted to DEFRA with CIWF's letter to DEFRA of 28 January. The evidence shows that, while broilers’ muscle (the meat for which they will be killed) grows rapidly, the supporting structure of legs, heart and lungs fails to keep pace with this rapid body growth, and can be damaged by the strain of supporting the overgrown body. As a result, each year in the United Kingdom, a very large number of broilers suffer from painful, sometimes crippling, leg disorders. In addition, millions each year die of heart failure. It is clear from the scientific evidence that fast-growing broiler genotypes cannot be kept without a substantial number suffering from painful leg disorders or heart problems.
15. Because of these health problems, many broilers would, if not slaughtered at the age of six weeks, die before the age of sexual maturity (around 24 weeks). This presents a problem for the continuation of the flock. The breeders must not only survive into adulthood, but must remain sufficiently healthy to breed.
16. If the breeders were fed normally, many would die before sexual maturity and many of the survivors would suffer from reduced fertility. To avoid these problems, the chicken farming industry has to find a way of slowing down the fast growth rates of the breeders. This is done by feeding breeders on severely restricted rations of, in some cases, as little as 25-50% of what they would eat if given free access to food. One study has concluded that restricted-fed broiler breeders are ‘chronically hungry, frustrated and stressed.’ (Savory, Maros and Rutter, 1993).
17. According to a review in World’s Poultry Science Journal in 2002, broiler chickens may be fed as little as one fifth of the quantity that they want to eat, and feed restrictions of up to 50% may continue during adulthood. The review states that, ‘Broiler breeders show evidence of physiological stress as well as an increased incidence of abnormal behaviours, and are also chronically hungry.’ (Mench, 2002)
18. The March 2000 report by the European Commission’s Scientific Committee on Animal Health and Animal Welfare (SCAHAW) states that the ‘chronic quantitative food restriction’ to which broiler breeders are routinely subjected leads to them being ‘very hungry’, that ‘[t]he severe feed restriction … results in unacceptable welfare problems’, and that ‘[t]he welfare of breeding birds must be improved.’ According to SCAHAW, restricted-fed broilers were ‘highly motivated to eat at all times’. They were found to be as anxious to feed one hour after their daily meal as they were one hour before it. Feed restricted broilers pace more before meal times and engage in more stereotypic drinking and pecking than fully-fed broilers, which is ‘characteristic of frustration of feeding motivation’ (SCAHAW 2000, Section 9.1). The evidence regarding the problems caused to broiler breeders by the use of restricted feeding regimes is summarised in the attached paper.
DETAILED STATEMENT OF GROUNDS
19. The claim relates to Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes (‘the Directive’).
20. Article 4 of the Directive provides that:
‘Member States shall ensure that the conditions under which animals (other than fish, reptiles or amphibians) are bred or kept, having regard to their species and to their degree of development, adaptation and domestication, and to their physiological and ethological needs in accordance with established experience and scientific knowledge, comply with the provisions set out in the Annex.’ (Emphasis added)
21. The Annex to the Directive (‘the Annex’) then sets out a number of detailed requirements as to the conditions in which farmed animals are kept. Paragraph 14 of the Annex provides that:
‘Animals must be fed a wholesome diet which is appropriate to their age and species and which is fed to them in sufficient quantity to maintain them in good health and satisfy their nutritional needs.’
22. Paragraph 15 of the Annex provides that all animals must have access to feed at intervals appropriate to their physiological needs.
23. Paragraph 21 of the Annex states that:
‘No animal shall be kept for farming purposes 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.’
24. The Directive was implemented in England by the Welfare of Farmed Animals (England) Regulations 2000, SI 2000/1870 (‘the Regulations’). Regulation 3(2) purports to transpose Article 4 of the Directive. It is in materially identical terms to Article 4, except that, rather than the words ‘Member States shall ensure…’, it contains the words ‘Owners and keepers of animals shall take all reasonable steps to ensure…’ (Emphasis added)
25. Paragraph 22 of Schedule 1 to the Regulations (‘Schedule 1’) provides that:
‘Animals shall be fed a wholesome diet which is appropriate to their age and species and which is fed to them in sufficient quantity to maintain them in good health, to satisfy their nutritional needs and to promote a positive state of well-being.’ (Emphasis added)
26. The words in bold are a requirement additional to the wording of Paragraph 14 of the Annex.
27. Paragraph 24 of Schedule 1 transposes Paragraph 15 of the Annex. It provides that:
'All animals shall have access to feed at intervals appropriate to their physiological needs (and, in any case, at least once a day), except where a veterinary surgeon acting in the exercise of his profession otherwise directs.' (Emphasis added)
28. The words in bold, the stipulation of access to feed at least once a day, and the exception where a veterinary surgeon acting in the exercise of his profession otherwise directs, do not appear in the Directive. In their letter of 4 April 2003, DEFRA explain that ‘the withholding of feed (on the direction of a vet) is necessary for the control of certain diseases conditions and for the effective administration of certain medication’.
29. Paragraph 29 of the Schedule reproduces paragraph 21 of the Annex in identical terms.
30. Regulation 13(1)(a) provides that a person who, without lawful excuse, contravenes or fails to comply with any provision of the Regulations, shall be guilty of an offence under section 2 of the Agriculture (Miscellaneous Provisions) Act 1968. Section 7 of the Act sets out the maximum penalty for a conviction under section 2: three months’ imprisonment, or a Level 4 fine. However, Regulation 13(2) provides that in any proceedings against an owner or keeper for a failure to comply with (among others) Regulation 3(2), the owner or keeper may rely on his compliance with any relevant recommendation contained in a statutory welfare code (as to which see Regulation 10 of the Regulations) as tending to establish his compliance with the relevant regulation. No similar provision appears in the Directive.
31. Article 249 of the EC Treaty provides that a directive is binding on Member States as to the result to be achieved, but leaves to the national authorities the ‘choice of form and methods’ by which that result is achieved. The first step in considering whether a directive has been properly implemented is therefore to determine the result which the directive requires Member States to achieve. Sometimes that result is one of conduct. In other cases, the obligation is one of result: the Member State must bring about a certain state of affairs.
32. The obligation in this case is one of result. Article 4 provides that Member States must ensure that the conditions under which animals are bred or kept comply with the provisions set out in the Annex. Accordingly, the state of affairs required by the Directive is one in which no animal in any Member State is bred or kept unless the conditions in the Annex are all met.
33. In order to achieve that result in practice, the Member State must pass its obligation to ‘ensure’ on to the owners and keepers of animals. By contrast, in implementing the Directive DEFRA has chosen only to require owners and keepers of animals to take all reasonable steps to ensure that the specified result is achieved. This is clearly a mere obligation of conduct rather than an obligation of result. Instead of bringing about a particular state of affairs, owners need only take reasonable steps to that end. Those steps may or may not be successful. If they are not, DEFRA may seek to achieve the specified result by, for example, persuasion, inspection or recommendation, but if these means fail, it has no coercive powers by which it can ensure that the specified result is achieved.
34. The implementation of a directive does not necessarily require that its provisions be transposed literally: see Case C-131/88 Commission v Germany  ECR I-825. Nor need the implementing measures follow the structure of the directive: see Case C-190/90 Commission v The Netherlands  ECR I-3265. However, in this case the Member State has chosen to implement the Directive by transposing its language but has added its own qualification. The transposition must be accurately carried out. In particular, the national terminology must correspond with the terms employed by the directive: see Case 412/85 Commission v Germany  ECR 3503; Case 363/85 Commission v Italy  ECR 1733.
35. This is not a case where the words in the national legislation differ from the words in the Directive because of differences of legal meaning in domestic law. The distinction between ‘ensure’ and ‘take reasonable steps to ensure’ is one of substance. This is made clear by the Directive, which itself uses the ‘reasonable steps’ requirement in other Articles. Article 3, for example, requires Member States to ‘make provision to ensure that owners or keepers take all reasonable steps to ensure the welfare of animals under their care…’ (Emphasis added) When the Directive aims to impose a requirement to take reasonable steps, it says so in clear terms. When it aims to impose an obligation of result, it also says so. It is quite clear that, if DEFRA’s interpretation were correct, Article 4 would require Member States to ‘make provision to ensure that owners or keepers take all reasonable steps to ensure that the conditions under which animals … are bred or kept … comply with the provisions set out in the Annex.’ That is not what Article 4 says.
36. In pre-action correspondence, DEFRA has not explained why it considers that the ‘reasonable steps’ obligation fulfils the requirement to ‘ensure’. However, it appears to argue that the gap between the two standards of protection may be filled in practice by prosecutions. By its letter of 11 March 2003, DEFRA argues that:
‘the UK has a policy of surveillance and enforcement in place with regard to broiler chickens which achieves the intended result of Article 4 of the Directive … The State Veterinary Service (SVS) carries out regular inspections on broiler and broiler breeders to ensure the legislation and welfare codes are being followed … Where welfare problems are found, advice or warnings are usually sufficient to bring about satisfactory improvements … However, where necessary and where the evidence is available, DEFRA initiates prosecution often in co-operation with the local authority against farmers for welfare offences.’ (Emphasis added)
37. The European Court of Justice has emphasised that full implementation of Directives must be secured not only in fact but also in law: Case C-339/87 Commission v Netherlands  ECR I-851. Absence of incompatible practice, or the fact that the practice is consistent with the directive in question, does not discharge the Member State from the obligation of actually and fully implementing the directive: Case C-131/88 Commission v Germany  ECR I-825. The basic requirement is that the measures giving effect to a directive must be legally binding. In Case C-131/88 Commission v Germany  ECR I-825, the ECJ stated that: ‘Moreover, the Court has consistently held that mere administrative practices, which are alterable at the will of the administration and which are not given adequate publicity, cannot be regarded as constituting adequate compliance with the obligation imposed on Member States to whom a directive is addressed by Article 189 [now Article 249] of the Treaty.’ (paragraph 61)
38. CIWF is prepared to accept, for the sake of argument, that where a Directive has been transposed into national law in terms which differ slightly from those of the Directive, a practical and well-publicised enforcement policy may in some cases be capable of remedying the deficiency. The Member State’s discretion as to the manner and form of implementation may in some circumstances allow legislation and enforcement measures to work in parallel to achieve the specified result. For this reason, CIWF asked DEFRA to adopt a policy of prosecution in all cases where broiler chickens are being kept in circumstances which do not comply with the Annex (see letter of 17 February 2003). This action was sought as the only practical means by which the gap between Article 4 of the Directive and the Regulations could be closed.
39. DEFRA refused to adopt such a policy. However, it does prosecute in some cases, as explained in the letter of 11 March 2003. It argues, as set out above, that the inspections and prosecutions which do currently take place under the Regulations fulfil the State’s duties under the Directive.
40. This argument is flawed. As DEFRA’s letter says, domestic owners and keepers can only be prosecuted for failure to comply with the obligations which bind them in domestic law. In this case, domestic law requires them to comply with the ‘reasonable steps’ obligation. It does not require, as does the Directive, that they achieve a result which complies with the Annex. Moreover the (partial) defence available under Regulation 13(2) further detracts from achievement of the result which the Directive requires.
41. It is therefore clear that, despite the inspection and prosecution measures DEFRA currently adopts, it cannot in practice prevent the keeping of animals where the keeper’s reasonable steps have failed to ensure the results required by the Annex to the Directive. Since the obligation on domestic owners and keepers is merely one of conduct, DEFRA cannot ensure that the required result is achieved. An inspection and prosecution policy based on the domestic Regulations cannot close the gap between conduct and result.
42. In any event, it is clear that, regardless of the wording of the obligation which DEFRA is purporting to enforce, prosecutions are not brought in all cases where animals are kept in circumstances which do not comply with the requirements of the Annex to the Directive. In practice, therefore, the absence of the prosecution policy sought by CIWF means that DEFRA is not ensuring, either in law or in practice, that no animal is kept in circumstances which contravene the Directive.
43. CIWF therefore submits that DEFRA has failed properly to implement the Directive. First, it has failed to transpose it correctly. Secondly, since its enforcement policy is based on inadequate domestic implementing measures, it is also failing to enforce the Directive in practice. It has compounded this failure by refusing to adopt a policy of prosecution in all cases where owners and keepers fail to ensure that the result required by the Directive is achieved.
44. Paragraph 21 of the Annex to the Directive provides that ‘No animal shall be kept for farming purposes 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.’ (Emphasis added) This obligation appears in identical terms at paragraph 29 of the Schedule to the domestic Regulations.
45. The words in italics show that the presumption is that an animal should not be kept for farming purposes, unless this presumption can be displaced by cogent evidence which justifies a reasonable expectation that the animal can be kept without detrimental effect on its health or welfare.
46. CIWF submits that Paragraph 21 of the Annex is based on a precautionary principle. That principle, which has been developed in the field of environmental protection, requires that where activities may cause harm, the onus is on the person who wishes to carry out the activity to justify the activity. This principle is, it is submitted, particularly understandable and important in the field of animal welfare.
47. CIWF’s interpretation is further borne out by reference to Paragraph 18 of the Annex to the Directive, which expressly prohibits the administration of substances to animals unless scientific studies have demonstrated that their effect is not detrimental to health or welfare. This is a further example of the precautionary emphasis of the Directive, where any risk of suffering must be positively disproved before a particular course of action can be taken.
48. From the letters of 7 January and 11 March 2003, it appears that DEFRA is approaching the matter on the basis that the keeping of fast-growing genotypes is to be allowed unless it can be proved that the fast-growing genotypes cannot be kept without detrimental effect to health or welfare. The letter of 7 January states that ‘we do not accept that your quotes from various scientific studies provide the necessary justification to take the action you have proposed.’ The letter of 11 March states that: ‘To achieve the purpose of the Directive it is not necessary to adopt the construction of paragraph 21 proposed by your client and there is no rule of statutory interpretation which requires such a construction.’
49. CIWF submits that, when the wording of the Directive is interpreted in its legislative and policy context, it is quite clear that the onus is on the Member State to supply positive evidence that animals – in this case fast-growing broiler chickens – can be kept for farming purposes without a reasonable expectation of health or welfare detriment. In contrast, DEFRA intends to allow fast-growing broilers to be kept until CIWF or others can prove that they cannot.
50. Two things follow from this. First, as explained above, DEFRA is adopting an erroneous approach to its obligations under the Directive. Second, CIWF has put before DEFRA cogent evidence which, at its lowest, raises a case that it cannot be reasonably expected that fast-growing broilers can be kept without detrimental effects. This places upon DEFRA an obligation to ensure that such broilers should not be kept unless it can disprove that evidence. DEFRA has failed to discharge that obligation.
51. In its letter of 11 March 2003, DEFRA states that CIWF’s construction of paragraph 21 ‘would result in an approach which is inconsistent with common law rules on the criminal burden of proof and with the European Convention on Human Rights.’
52. DEFRA does not specify which provisions of the Convention it considers to be engaged, or give any reasons to support this statement. However, CIWF takes DEFRA to be arguing that its proposals would violate the presumption of innocence guaranteed by Article 6(2) of the Convention.
53. CIWF submits that this concern is unfounded. What CIWF contends that DEFRA must do is, firstly, itself to bring forward convincing evidence that fast-growing broiler chickens can be kept without reasonable expectation of health or welfare detriment. DEFRA has failed to do so, taking the approach that it is for others to prove that broilers cannot be so kept. This obligation on DEFRA has nothing to do with the presumption of innocence.
54. As explained above, CIWF’s second contention is that DEFRA must effectively enforce the obligation in paragraph 21. Given the cogent evidence of significant health and welfare detriments to fast-growing broilers kept in farmed conditions, CIWF submits that effective enforcement requires a properly publicised policy of prosecuting in cases where broilers are being kept in circumstances where there is a reasonable expectation of health and welfare detriment.
55. CIWF submits that there is nothing in such a policy to violate the presumption of innocence. The Convention does not prohibit the placing of an evidential burden on a defendant. In the leading case of Salabiaku v France (1991) 13 EHRR 379, the applicant had been convicted of the offence of importing goods in breach of the Customs Code, which carried a sentence of three months’ imprisonment. The relevant section of the Code contained a presumption that a person who had physically imported a consignment of prohibited drugs knew that the drugs were in his possession.
56. The Court stated that:
‘Article 6(2) does not … regard presumptions of fact or law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.’ (paragraph 28)
57. However, the Court held that the presumption in the applicant’s case did not violate Article 6(2), since the prosecution had to prove the actus reus of the offence, and since it was a defence for the applicant to prove that he was unaware of the contents of the consignment. Critical to the Court’s reasoning was the fact that the trial court continued to ‘enjoy a genuine freedom of assessment in this area’. (paragraph 29)
58. CIWF also relies upon the Commission decision of Bates v United Kingdom, App No 26280/95. While it accepts that decisions of the Commission must be accorded less weight than those of the Court, and are certainly not binding, CIWF submits that the Commission’s reasoning is persuasive, particularly given the closely related subject matter of the case.
59. The applicant in Bates complained about provisions of the Dangerous Dogs Act 1991. Section 1(2)(d) provides that it is a criminal offence to be in charge of a pit bull terrier in a public place without its being muzzled or on a lead. The applicant complained about section 5(5) of the Act, which states, so far as relevant, that:
‘If in any proceedings it is alleged by the prosecution that a dog is one to which section 1 … applies it shall be presumed that it is such a dog unless the contrary is shown by the accused by such evidence as the court considers fit …’
60. This is a very wide presumption: that a dog is a pit bull unless the defendant shows otherwise. Applying Salabiaku, the Commission stated that:
‘The Commission notes what was at stake for the applicant, namely a possible criminal conviction together with a potential penalty of, inter alia, six months imprisonment and the destruction of his dog. However, the Commission finds that it is significant that section 5 of the 1991 Act expressly provides an opportunity to the defendant to adduce evidence at the initial hearing as to a dog’s breeding …
Therefore the Commission considers that section 5(5) of the 1991 Act falls within reasonable limits, even in light of what was at stake for the applicant, given the opportunity expressly provided to the defence to rebut the presumption of fact and that section 5(5) was applied in a manner compatible with the presumption of innocence.’
61. The Strasbourg caselaw on reverse onus clauses and the presumption of innocence was considered by the House of Lords in R v Director of Public Prosecutions, ex parte Kebilene  2 AC 326. After outlining the Convention caselaw, including Salabiaku and Bates, Lord Hope concluded that:
‘[t]he cases show that, although Article 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses, whether they be evidential (presumptions of fact) or persuasive (presumptions of law). In each case the question will be whether the presumption is within reasonable limits.’ (at 385)
62. Lord Hope considered that ‘As a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual.’ (at 384) He went on to adopt a three-stage approach to considering whether any particular reverse onus clause complied with Article 6(2):
‘(1) what does the prosecution have to prove in order to transfer the onus to the defence? (2) what is the burden on the accused – does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or (I would add) to which he readily has access? (3) what is the nature of the threat faced by society which the provision is designed to combat?’ (at 386)
63. The imposition of a persuasive burden was recently upheld by the Court of Appeal in R v Matthews  EWCA Crim 813. The Court considered section 139 of the Criminal Justice Act 1988, which provides that any person who has a pointed or bladed article in a public place is guilty of an offence, unless he or she can show good reason or lawful authority. The Court of Appeal considered that this section imposed a persuasive, and not merely an evidential, burden on the defendant. However, the Court held that the provisions:
‘strike a fair balance between the general interest of the community in the realisation of a legitimate aim and the protection of the fundamental rights of the individual, and go no further than is necessary to accomplish Parliament’s objective in protecting the public from the menace posed by persons having bladed articles in public places without good reason.’ (per Field J at para. 27)
64. Adopting Lord Hope’s threefold test, CIWF submits that, in bringing a prosecution against a keeper of broiler chickens on the basis of paragraph 29 of the Schedule, the prosecution would have to prove the actus reus of the offence (the keeping of fast-growing broiler chickens in farmed conditions). The defendant would then be entitled to lead evidence to show that the chickens were not being kept in circumstances where there was a reasonable expectation of health or welfare detriment.
65. CIWF submits that this is a matter which is, or ought to be, easily within the knowledge of a keeper of broiler chickens. It would be highly unattractive for DEFRA to argue that keepers of broilers cannot be expected to know whether or not such chickens can be kept without a reasonable expectation of health or welfare detriment. They are likely to have ready access to material to show their reasonable assessment of the health and welfare risks of the activity in which they are engaged. Further, adopting the language of the Court in Salabiaku, this is a question to be determined by the trial court in each case, which would, it is submitted, retain a ‘genuine freedom of assessment.’
66. On Lord Hope’s third question, CIWF submits that the facts set out in this Claim Form, and the evidence submitted herewith, make clear the degree of suffering caused to fast-growing-broilers in farm conditions. In a humane society, there is a very great interest in minimising such suffering. This goal is increasingly recognised throughout the European Union. CIWF submits that its proposed interpretation of paragraph 21 of the Annex to the Directive would strike a balance between the interests of the community and the rights of the owners and keepers of broilers.
67. The facts relating to hunger in the broiler breeding flock are outlined at paragraphs 11 to 14 above. In the letter of 28 January 2003, CIWF raised the question of feeding restrictions applied to the breeding flock of fast-growing broiler genotypes. The matter was also raised at point 8 of the Annex to the CIWF’s solicitors’ letter of 17 February. DEFRA replied at point 8 of Annex 2 of its letter of 11 March.
68. CIWF stated that:
‘The growth rate of fast-growing broiler breeders has to be slowed down to prevent premature mortality and reduced fertility. This is often achieved by subjecting the breeders to chronic quantitative food restriction which leads to them being very hungry over lengthy periods.’
69. DEFRA replied that,
‘Management practices that are necessary to ensure health and reproductive competence in broiler breeders may also result in a reduction in other aspects of welfare, mainly increased aggression and hunger from restrictive feeding (Mench, 2002). However, there are numerous ways in which breeding and feeding are modified to improve the welfare of these animals.’ (Emphasis added)
70. Accordingly, DEFRA does not appear to dispute the fact that widespread management practices relating to the breeder flock result in, among other things, ‘hunger from restrictive feeding.’ It also accepts that such hunger amounts to a reduction in welfare.
71. The practice of restrictive feeding is in clear contravention of the Directive. As explained above, paragraph 14 of the Annex was transposed as paragraph 22 of the Schedule to the domestic Regulations, which provides that:
‘Animals shall be fed a wholesome diet which is appropriate to their age and species and which is fed to them in sufficient quantity to maintain them in good health, to satisfy their nutritional needs and to promote a positive state of well-being.’ (Emphasis added)
72. The words in bold are a requirement which the United Kingdom has chosen to impose in addition to the requirements of the Directive. This choice is welcomed by CIWF. In their letter of 20 March 2003, CIWF’s solicitors
raised CIWF’s concern that, despite its clear wording, the requirements of Regulation 22 are not being enforced. They requested that DEFRA adopt and publicise a policy of prosecution in cases of feed restriction. Such a policy is the only effective way of ensuring that the feeding requirements in paragraph 14 of the Annex and paragraph 22 of the Schedule are complied with by owners and keepers, particularly in light of the fact that there is evidence of industry-wide restrictive feeding and chronic hunger.
73. The European Court of Justice has made it clear that directives must be enforced in fact, as well as correctly implemented in law: see Case C-287/91 Commission v Italy  ECR I-3515, where Italy was held in breach of a VAT directive despite having correctly transposed it, since the Italian authorities did not in practice observe the six-month period laid down in the directive for VAT reimbursements to certain classes of person.
74. In its letter of 4 April 2003, DEFRA refused to adopt a policy of prosecution in cases of restrictive feeding. In summary, DEFRA consider that compliance with Regulation 22 is ensured through the surveillance and enforcement regime explained in their letter of 11 March 2003. In the ante-penultimate paragraph of its letter of 4 April, DEFRA asserts that “Restriction of the amount of food available to broiler breeders can be required in order to maintain the overall welfare of the birds”. In CIWF’s submission, this is contrary to the objective of the Directive: DEFRA is in effect seeking to comply with paragraph 21 of the Annex by breaching paragraphs 14 and/or 15. The keeping to which paragraph
21 refers must be keeping in circumstances which comply with the other requirements of the Annex. The proper way of maintaining overall welfare is not to restrict the amount of food but to stop keeping fast-growing genotypes, as these birds experience a high incidence of leg and heart problems. CIWF submits that, by refusing to adopt a policy of prosecution or otherwise to take decisive measures to end the practice of restrictive feeding, DEFRA is in breach of its obligations under the Directive.
75. Pursuant to Article 4 of the Directive, DEFRA must ‘ensure’ that the conditions in the Annex are fulfilled, including the feeding requirements in paragraph 14. DEFRA cannot be said to ‘ensure’ adequate feeding when there is a widespread practice of restrictive feeding which is not combated by any policy of prosecution or any other policy. In fact, the letter of 11 March 2003 appears to suggest that DEFRA considers chronic hunger an inevitable consequence of necessary management techniques.
76. The Claimant seeks the following relief:
(1) A declaratory order, stating that the Defendant has
(i) Failed properly to implement Article 4 of the Directive, and
(ii) Failed to apply the correct burden of proof, as required by paragraph 21 of the Annex to the Directive.
(2) A mandatory order requiring the Defendant:
(i) Properly to implement Article 4 of the Directive, and
(ii) To prosecute any owner or keeper who does not supply broiler breeder chickens with adequate food.
Rabinder Singh QC