[Disclaimers: This is more shallow and conclusory than I'd like due to non-EA stuff that has been going on in my life. Although I am a lawyer, I lack professional experience with UK law specifically, although it is a common-law jurisdiction like the US . Still, I thought there was value in me saying something before this got too stale.]

1. The opinion of the Court of Appeals, Civil Division ("CACD") seems to be a mixed bag, and THL UK's post seems overall too rosy. On the other hand, I find VettedCauses' analysis in the comments to be too pessimistic.

2. CACD's interpretation of paragraph 29 seems somewhere in the middle of plausible interpretations of the relevant text. It is certainly more favorable to animal advocacy than the position taken by the lower-court judge below. 

3. Paragraph 29 needs to be understood in the context of the broader regulatory scheme, as described in the following excerpt from the judgment (emphasis mine):

I would therefore accept the Secretary of State’s case 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. However, this needs some further explanation. There is a 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. 

For example, an animal which, because of the way in which it has been bred, is susceptible to cold will not suffer any detrimental effect on its health or welfare if it is kept indoors with appropriate heating during periods of cold weather. It can reasonably be expected, therefore, that such an animal can be kept without any detrimental effect on its health or welfare. The keeping of such an animal is not prohibited by Paragraph 29, although it may be that other provisions of the legislation would be engaged if the animal was kept outside in the winter, or if adequate heating was not provided. That 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 2006 Act.   

(This continues with the language quoted by JBentham in another comment.)

In other words, Paragraph 29 covers cases in which no adequate mitigations are available, while advocates need to look to other legislative provisions to cover cases in which adequate mitigations were available but not employed. I assume that these theories could be charged in the alternative in a prosecution (i.e., the advocates would not have to commit to one theory in advance).

4. THL UK did not succeed in compelling the UK authorities to do anything, and seems to have at least de-emphasized this part of its case on appeal. From a US law perspective, it is hard to compel a regulator to regulate when it doesn't want to -- so I am not surprised by the loss or the court's reasoning. The status quo was that Defra wasn't acting, and there wasn't to my knowledge a viable alternative pathway to compel Defra's action. So this is a loss but does not sound like a worsening of the status quo.

5. So what's the theory of impact here? THL UK's post points to planned private prosecutions as the current plan. The English legal system is unusually friendly to private prosecutions -- but the Crown Prosecution Service (CPS) can take over a privately-conducted prosecution at any time, including with the specific intent of discontinuing the prosecution. This includes cases in which it deems the public-interest test for prosecution is not met. Although I have no knowledge of CPS decisionmaking in these circumstances, I would guess that CPS would weigh the view of the responsible governmental agency quite strongly in making this determination. 

6. If Defra has pointedly declined to endorse anything remotely near THL UK's view of the facts and the law, then I speculate that THL UK needed a somewhat favorable judicial interpretation of Paragraph 29 to avoid CPS taking over any potential prosecution and discontinuing it. Litigation was and is always a risk, but THL UK may have reasonably concluded that Paragraph 29 wasn't of much use without either Defra support or judicial support.

7. Likewise, I think most Magistrates' Courts would be very unlikely to convict without some official/authoritative source putting farmers on notice with sufficient specificity that they could be violating the criminal law. That makes sense, because this is a criminal statute and Paragraph 29 is written at a very high level of generality. A report written by an advocacy organization is not, in my view, an official/authoritative source. So again, I think it was reasonable to think that THL UK -- having failed to get buy-in from Defra -- needed something from a precedential judicial authority before initiating criminal prosecutions.

8. Defendants convicted before the magistrates can get a rehearing from the Crown Court (the upper-level criminal court). After that, they can seek leave to appeal to . . . the Court of Appeal. So in all likelihood, any successful path to prosecution would be going through the Court of Appeal one way or another (although it would be the Criminal Division).

9. THL UK isn't made of money. I assume it would be much more cost-effective to figure out what the law is, and then build your trial around that legal standard . . . rather than running all the expenses of trial against very well-heeled defendants and then risking everything getting thrown out because the Criminal Division didn't agree with the lower courts on the law.

10. All in all, the choice of litigation strategy seems reasonable to me, and I suspect there is still a potentially viable way forward for THL UK -- even if it isn't the way forward THL UK might have hoped for. 

Thank you to everyone for the comments and reflections on our 16th December post about our Judicial Review, “News from THL UK: Judge rules on our historic Frankenchicken case.”

There was some very useful feedback on there, which we will definitely be taking on board. Some commenters felt our post was overly celebratory, lacked nuance or was unclear. Your feedback was very helpful, and in the future, we will be constructing our posts taking this feedback into account.  

In this post we’re going to go into a lot more detail, to explain and back up the thinking that informed the original post. First, some background on why we brought the case. The provision in question is Schedule 1 paragraph 29, which is currently under the Welfare of Farmed Animals Regulations (WOFAR), and states that animals with genetics prone to detriment cannot be kept for farming purposes. 

Despite this provision being on the books in some form since the 1990s, not a single prosecution has been brought under it. And under this law, there has been a proliferation of the use of fast-growing breeds of chickens in the UK (just over 1 billion per year currently–about 95% of the UK flock). Commonly used fast-growing meat chickens are bred to grow very quickly, to produce the most amount of meat in the shortest possible time. This rate of growth would be equivalent to a human child reaching 28 stone by three years of age. As a result, they often struggle to stand and walk, develop painful lesions on their legs, suffer from heart defects and even experience sudden death - all in unacceptably high numbers. This is evidenced by a 2020 report carried out by the RSPCA. 

So clearly, this law wasn’t doing the job it was created to do. Local councils, who have jurisdiction over farms in their catchment area, were failing to bring prosecutions against farmers using fast-growing breeds of chickens, and Defra, who also has the power to intervene and prosecute, instead created a code of practice for chicken welfare which dodged the issue and simply stated that farmers must weigh up productivity and welfare concerns when choosing chicken breeds:

“59. Welfare and health considerations, in addition to productivity, should be taken into account when choosing a strain for a particular purpose or production system. In line with this, meat chickens should stem from broad breeding programmes, which promote and protect health, welfare and productivity. Keeping birds in line with appropriate growth curves that optimise these criteria, particularly with regard to leg health, should be considered.”

Given that vague guidance, under the status quo farmers are not compelled to choose slower-growing breeds who suffer less detriment to their welfare. Without legal intervention by an independent organisation, this law, while seemingly good on paper, would continue to sit on the statute books, being wholly ineffective, allowing for the further proliferation of fast-growing breeds of chickens, for years to come.  

THL UK did lose our judicial review appeal–the court did not make a declaration, which could have had the consequence of ending the use of fast-growing breeds, and the court did not find that Defra had a policy on fast-growing breeds of chicken that clearly misinterpreted paragraph 29. 

Our hope going into the appeal was that the panel of judges, after hearing oral arguments and considering the evidence, might order Defra to update the current Code of Practice or create a new one entirely that was in alignment with the provisions of paragraph 29 (which we feel clearly prohibits the use of fast-growing breeds of chickens). Unfortunately, the court didn’t do that, and felt that Defra’s current Code of Practice for meat chickens offered no interpretation of paragraph 29 at all (which it is not legally required to do) and meant our judicial review fell down at this hurdle.

Our case rested on this language in paragraph 29 of WOFAR, which says “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.’ During the series of court hearings spanning the last three years, the government attempted to pick holes in the language of this legislation, offering alternative interpretations which would allow the continued use of fast-growing breeds of chickens. They argued, and I’m paraphrasing here, that:

• The words ‘reasonably be expected’ meant that chicken farmers did not need to familiarise themselves with the scientific studies and welfare implications of fast-growing breeds of chickens when choosing which breeds of chickens to farm.
• THL UK’s narrow interpretation of ‘any detriment’ would destroy the chicken farming industry by prohibiting the use of all species of chickens. They argued that even healthier slower-growing breeds of chickens can suffer from some welfare problems (albeit at a significantly lower proportion and intensity when compared to commonly used fast-growing breeds), so it would be impossible to farm a chicken, under THL UK’s interpretation, without ‘any detriment’ at all because invariably, even a slow-growing breed of chicken could develop some type of leg problem at some point in their lives.  
• A fast-growing breed could be kept if farmers could make environmental improvements (more space, more light, improved feed, etc) which could in theory eliminate ‘any detrimental effect’ caused.  

The government’s interpretation would have made it very difficult, if not impossible, to end the use of fast-growing breeds under paragraph 29. 

While we technically lost the case, we feel the ruling was a legal breakthrough for animals because it finally gave clarity to the meaning of key aspects of paragraph 29–something that has been in contention for years–and the Court of Appeal’s interpretation can be used as the basis for future legal actions against industry to challenge their use of fast-growing breeds. 

This is the significant ground we feel we gained because of the case: 


1.  “Reasonably be expected”.  

Justice Males, in his conclusion, overturned the lower court's interpretation of this phrase by recognising that what is reasonable or not is a question of fact and that the “controversy” surrounding a breed should inform what the keeper is reasonably expected to know. He said: 

 “53.  …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.”

This interpretation is significant because it speaks to the level and type of information farmers should seek out, and (we feel) lays the groundwork for demonstrating criminal liability for any farmer that does not familiarise themselves with the commonly-held scientific opinion that fast-growing breeds of birds invariably suffer more than their slower-growing counterparts. 


2.  “Any detriment”. 

THL UK felt that the government’s position–that seemed to suggest that no breeds of conventional chickens should be prohibited under paragraph 29 because all animals suffer some detriment because of their genes, even the higher-welfare, slower-growing breeds–was an absurd one. The Justices in the appeal thankfully saw through this attempt to gut paragraph 29 of any meaning by giving detailed reasoning that in order for a breed of chicken to be banned, the suffering must be more than insignificant. Justice Underhill in the Court of Appeal said: 

"77...I agree that in a case where a proportion, but only an insignificant proportion, of the animals of a particular breed will suffer harm (most obviously by developing some illness or injury) by being kept for farming purposes the prohibition in paragraph 29 should not apply. That conclusion may perhaps, as he says, be implicit in the phrase “can reasonably be expected”, but it can also be reached by declining to read the language of paragraph 29 literally: it is derived from an EU Directive, where the strict techniques of domestic drafting are not employed. In para. 57 Males LJ takes this approach in considering whether some minimum threshold of the degree and/or duration of suffering is implicit in the language of “detrimental effect”: I think a similar approach is appropriate in considering the degree of incidence of detrimental effects in the relevant population. The other point which I would note about para. 58 concerns Males LJ’s characterisation of the situation under consideration as one where the detrimental effect “occurs more often in animals of one particular breed than another”. That formulation reflects the fact that paragraph 29 is directed to characteristics which are peculiar to a particular breed – that is the effect of the phrase “on the basis of their genotype or phenotype” – from which it necessarily follows that there will be breeds which do not share that characteristic (or not in the same degree)."

3. “Environmental conditions.” 

During the course of the hearings, Defra made the claim that a farmer would not not be in contravention of Paragraph 29 if they could hypothetically eliminate the suffering. Defra provided no scientific evidence on what these hypothetical improvements would be. Our position has always been that while environmental improvements can of course reduce some suffering endured by chickens, they cannot remove all of the suffering. 

Fast-growing chickens’ speed of growth puts an unnaturally large strain on the chicken's musculoskeletal system (leading to painful leg deformities and lameness) and respiratory system (leading to disease, heart attacks, and sudden death). This strain and suffering happens because of the animal's breed type, not because of the amount of sunlight or space that the chickens receive. And there are no scientific studies showing that environmental improvements can fully eliminate the welfare issues associated with fast-growing breeds.  Defra’s claim flies in the face of science, and against the findings by Scotland’s Rural College, who in 2020 ran a study (commissioned by the RSPCA) showing that fast-growing breeds, when given identical environmental conditions as slower-growing breeds, suffered from significantly poorer health. 

Lord Justice Males concluded that if Scotland’s Rural College findings are correct, then the use of fast-growing breeds should be prohibited. He said:

"52. Coming closer to home, the conclusions contained in the RSPCA Report, if valid, also appear to illustrate this difference. If it is correct (and I emphasise ‘if’) that, when compared with slow-growing chickens, a particular breed of fast-growing chickens suffers from increased heart problems with consequential higher mortality, or leg development disorders because the chicken cannot support its own weight, it would seem likely (contrary to the Secretary of State’s view, although this is ultimately a matter for scientific evidence) that no improvement in the environmental conditions in which such chickens are kept could mitigate those detrimental effects upon their health or welfare. Those consequences would be inherent in the particular breed of chicken and the keeping of such a breed would be prohibited by Paragraph 29."

Judicial reviews are about scrutinising government policy and procedures, and do not weigh the merits of scientific claims or scientific studies, which is why Lord Justice Males said ‘if’ the study ‘is correct’. If an organisation were to bring a private criminal prosecution against a chicken farmer, the case would be heard by a Magistrates court, where scientific evidence is presented by expert witnesses and considered carefully, and we feel the science is very clearly on our side.     

4. “Animal health and welfare over commercial benefit” 

Modern breeding techniques are creating animals that are optimised for productivity (rapid weight gain, large volume of milk production, etc) which often comes at a cost to their health and welfare. This drive for increased productivity has been happening under the watchful eye of Defra and plays a supersized part of the decision-making process farmers go through when choosing which animals to use. High productivity is good for business. Defra’s current code of practice for meat chickens says that “Welfare and health considerations, in addition to productivity, should be taken into account when choosing a strain for a particular purpose or production system.”  

Lord Justice Males, in his conclusion, gave a different and strong interpretation of paragraph 29, squarely saying that the legislation is about prioritising and optimising animal welfare, not productivity or commercial benefit.

"60. It is important to be clear, however, that there is no question of balancing the advantage of higher productivity against the detrimental effect(s) on an animal’s health or welfare. 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. Paragraph 29 unequivocally prioritises animal health and welfare over commercial benefit." 

Lord Justice Males gives farmers a very clear decision matrix to follow when choosing breed type. This clear steer from the Appellate Court on the intention of paragraph 29 can be used when bringing a private criminal prosecution, and can be used by other animal advocates when bringing legal challenges that focus on other species of animals that fall under paragraph 29, like dairy cows and pigs. 

Next steps

We feel the favourable interpretation of paragraph 29 that was secured through our case significantly increases the chances of a successful criminal prosecution being brought against a farmer who chooses to use fast-growing breeds. Before our case, there was ambiguity and disagreement around paragraph 29 and what it meant for farming. While we always believed paragraph 29 prohibits fast-growing breeds, it is still written in very general terms. It’s largely down to the secondary legislation and codes of practice to give the detail to the primary legislation. But Defra opted to not create any specific clarity through its regulations and code of practice, creating ambiguity and giving farmers the latitude to pick breeds as they please with very little fear of legal repercussions. And that generality to the primary legislation, and absence of a code, makes prosecuting farmers very difficult. What the Appeals Court ruling has done is stripped away much of that ambiguity, and gives any organisation or public body a stronger footing to bring a prosecution. 

There are two public bodies that have the authority to prosecute farmers–Defra, and the local councils that oversee the jurisdictions where farmers operate. We have not seen a single prosecution brought against farmers over paragraph 29, so it is up to animal advocates like THL UK to consider bringing one of our own, which we can do as a private prosecution. Over the months ahead, our team will be weighing up the pros and cons of bringing such a case, and the chances we have of transforming British farming, for the better, through another legal intervention. 

And in the meantime, while Defra is not legally obligated to create a policy on fast growth, we feel that this legal interpretation of paragraph 29 should empower and encourage them to now give farmers specific guidance (in the form of an updated code, or a new code altogether) that specifically prohibits the use of certain fast-growing breeds of chickens. THL UK, the RSPCA, and Advocates for Animals will be lobbying Defra in order to see these changes take place. 

NOTES: 

• The ruling of the Appeals Court case can be seen here: https://www.judiciary.uk/wp-content/uploads/2024/12/Humane-League-UK-v-Secretary-of-State-for-Environment-Food-and-Rural-Affairs.pdf
• A full recording of the two days of the Appeals Court hearing can be seen here: 

https://www.youtube.com/watch?v=3JM0egmSOCw&t=8025s 
https://www.youtube.com/watch?v=aFDuxkk47yU&t=6392s 

https://www.youtube.com/watch?v=xbSvhCUaDEo 

Great victory from THL UK -- well done!