R (on the application of Highbury Poultry Farm Produce Ltd) v Crown Prosecution Service [2020] UKSC 39

Highbury Poultry Farm Produce Ltd was charged under the WATOK Regulations 2015 after three chickens entered scalding tanks alive. The Supreme Court held that the offences, implementing an EU Regulation on animal welfare at slaughter, imposed strict liability and did not require proof of negligence or mens rea.

Facts

Highbury Poultry Farm Produce Ltd (HPFPL) operated a large poultry slaughterhouse in Shropshire, processing approximately 19.5 million chickens per year. On three occasions in 2016 (31 August, 12 September and 5 October), a chicken entered the scalding tank while still alive because, following stunning, its neck had not been properly cut by a certificated operative.

HPFPL was charged with two offences in respect of each incident under regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 (WATOK Regulations 2015), relating to breaches of (i) article 3(1) of Regulation (EC) No 1099/2009 (the EU Regulation), requiring animals to be spared avoidable pain, distress or suffering, and (ii) article 15(1) and Annex III point 3.2, requiring the two carotid arteries or the vessels from which they arise to be systematically severed following simple stunning.

A preliminary point of law was raised: whether the offences required proof of mens rea or a culpable act or omission. District Judge Cadbury held they were strict liability offences. The Divisional Court (on judicial review) agreed. HPFPL appealed to the Supreme Court.

Issues

The Supreme Court had to determine whether the offences under regulation 30(1)(g) of the WATOK Regulations 2015, implementing articles 3(1) and 15(1) (with Annex III, point 3.2) of the EU Regulation, were offences of strict liability, or whether they required proof of negligence or other culpability on the part of the business operator.

A preliminary issue arose as to whether HPFPL had “two bites of the cherry” — being able to argue separately that negligence was required under both the EU Regulation and the domestic regulation.

Arguments

Appellant (HPFPL)

Mr Hockman QC argued that even if negligence was not required under the EU Regulation, it was required under the domestic regulation by virtue of the common law presumption that a criminal offence requires mens rea (relying on Sweet v Parsley, Gammon (Hong Kong) Ltd, and B (A Minor) v DPP). He further submitted that recital (2) of the EU Regulation defined “avoidable” pain as requiring “negligence or intention”, thereby importing a fault requirement into article 3(1) and the Regulation generally. He relied on Vandevenne in support of the proposition that member states retained discretion on standards.

Respondent (CPS)

Mr Perry QC submitted that the domestic regulations were merely the mechanism for giving effect to the EU Regulation, which therefore governed the interpretation. HPFPL had only “one bite of the cherry”. Applying EU principles of teleological interpretation, the clear wording of articles 3(1) and 15(1), combined with their purpose, imposed strict liability.

Judgment

Lord Burrows (with whom Lord Reed, Lord Lloyd-Jones, Lord Kitchin and Lord Hamblen agreed) dismissed the appeal.

The “one bite of the cherry” point

The Court rejected the Divisional Court’s “two bites” approach. While member states have discretion under article 23 to set penalties, they have no discretion to lower the substantive standards required by the EU Regulation. If the EU Regulation imposes strict liability, the domestic implementing regulation must do the same. The Marleasing principle reinforces this. Vandevenne did not assist the appellant because it concerned the imposition of a stricter standard, not a lower one.

EU principles of legislative interpretation

The Court held that EU law principles of legislative interpretation — teleological and purposive — applied, not domestic canons of construction. Lord Burrows cited R v Henn, Westwater v Thomson, Assange, and Omejc, emphasising that interpretation must consider wording, context, and objectives.

Strict liability and EU law

The Court confirmed that strict criminal liability is not contrary to EU law, referring to Hansen & Son, where the ECJ held that strict liability could be proportionate and justified on public interest grounds.

The second offence (article 15(1), Annex III, point 3.2)

The Court held that the words “shall ensure” and “shall be systematically severed” plainly imposed strict liability, with no words importing culpability. Strict liability furthered uniformity across the EU and avoided the difficulty of identifying an individual operative whose mental state could be attributed to the business operator.

The first offence (article 3(1))

The passive voice “shall be spared” and the parallel use of “to ensure” in article 3(2) and (3) indicated strict liability. The Court disagreed with Hickinbottom LJ’s suggestion of an “irrebuttable presumption” that pain had been experienced — this remained for the prosecution to prove.

On recital (2), which referred to “negligence or intention”, the Court accepted Jay J’s alternative interpretation that it merely indicated that breach of the Regulation would usually entail fault, or provided non-exhaustive examples. Moreover, under EU principles (Caronna; IATA v Department of Transport), a recital cannot be used to derogate from, or contradict, a clear operative provision.

Additionally, the predecessor Directive 93/119/EC contained no reference to “negligence or intention” and appeared to impose strict liability. It was highly unlikely that the EU would have weakened animal welfare standards in the successor Regulation.

Conclusion

Both offences imposed strict liability. The matter was acte clair; no reference to the CJEU was required. The appeal was dismissed.

Implications

The decision clarifies several important points for practitioners:

First, where domestic regulations implement an EU Regulation, the interpretation of the substantive obligation is governed by the EU Regulation, and a defendant cannot rely on the domestic presumption of mens rea to read down the standard. Member states have discretion as to penalties, but not as to substantive standards.

Second, EU principles of teleological interpretation apply, and domestic canons of statutory construction (including the strict construction of penal provisions) are displaced.

Third, strict criminal liability is not inconsistent with EU law, particularly in the context of regulatory offences enforced against business operators.

Fourth, recitals cannot be used to contradict clear operative provisions of an EU Regulation; they may explain purpose but do not override unambiguous text.

The decision has significant practical consequences for food business operators, slaughterhouses and those subject to EU-derived regulatory regimes, confirming that compliance obligations in such contexts may be absolute, regardless of the care taken. The ruling reinforces animal welfare protections and underlines the difficulty of pinpointing individual culpability in mechanised operations — a factor justifying strict liability. It remains for the prosecution in article 3(1) cases to prove pain, distress or suffering was in fact experienced, preserving a measure of evidential boundary to liability.

Verdict: The appeal was dismissed. The Supreme Court held that both offences charged under regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015, implementing articles 3(1) and 15(1) (with Annex III, point 3.2) of Regulation (EC) No 1099/2009, are offences of strict liability. The prosecution is not required to prove mens rea, negligence, or a culpable act or omission on the part of the business operator. The criminal proceedings were remitted to District Judge Cadbury for final determination.

Source: Highbury Poultry Farm Produce Ltd, R (on the application of) v Crown Prosecution Service [2020] UKSC 39