Animals


What will happen to Justice

2 April 2019 by

… the horse? In September last year a County Court judge in Washington, Oregon, threw out a case for lack of standing. The claim (Justice vs Gwendolyn Vercher Case 18CV17601) was filed in the name of an eight year old quarter horse whose abuse at the hands of his owner had led to a conviction and fine for animal neglect.

In March 2017 the horse — then known as Shadow —was found emaciated and with a prolapsed penis that was swollen “red raw” and “oozing serum” as a result of frostbite. He was 300lb (136kg) underweight and also suffering from lice and rain scald having been left without adequate food or shelter throughout the winter. Although his owner agreed to pay the horse’s veterinary expenses up to the date of conviction, the equine charity maintain that the injuries he has suffered will require “special and expensive medical care for the rest of his life” and are a barrier to finding the horse a new home.


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A weed is a plant in the wrong place

29 September 2017 by

... and pests are misplaced animals. We are all too familiar with the stories of mayhem caused by urban foxes released into the countryside, and the collapse in property value where Japanese knotweed is found to have invaded. The perpetrators of such damage are rarely identified and brought to account. So it is with a level of glee that the prosecution of two “Buddhist activists” has been reported in the media after they released nearly a thousand alien crustaceans off the coast of Brighton.

“Banker” Ni Li and “estate agent” Zhixong Li bought the live American lobsters and Dungeness crabs from a London fish merchant, hired three boats from Brighton Marina and cast the animals adrift as part of a religious ceremony, fangsheng, which is understood to be the cause of many ecosystem disruptions in Asia.

This short story is so replete with topical issues it is hard to know where to begin.

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Watery rights and wrongs – and causation too

10 February 2016 by

TA-ArcticCharr-002R (o.t.a Seiont, Gwyfrai and Llyfni Anglers Society) v. Natural Resources Wales [2015] EWHC 3578, Hickinbottom J, 17 December 2015, read judgment and

Chetwynd v. Tunmore [2016] EWHC 156 (QB), HHJ Reddihough, sitting as a judge of the High Court, 4 February 2016, read judgment

This is a wintry double-bill on two recently decided cases about water quality, quantity, fish – and causation.

In the first, Seiont, Snowdonian anglers complained that the Welsh water regulator (Natural Resources Wales or NRW)  had misunderstood what was required by the Environmental Liability Directive in respect of Llyn Padarn, a freshwater lake the home of the Arctic charr, Salvelinus alpinus.  So they sought judicial review of NRW’s decision.

The main legal question was – did environmental damage within the Directive include slowing down recovery from previous damage, as the anglers argued, or was it confined to deterioration from an existing state (as the regulator had decided)?

Hickinbottom J held the latter, and the claim was dismissed.

In the second case, the claimant owners of fishing lakes in Norfolk said that their neighbours, in constructing rival lakes (without planning permission) had caused water levels to fall, and hence loss of fish and consequent income. Had that been established, the claimants would have had a claim for breach of statutory duty under section 48A Water Resources Act 1991. Such a claim, the judge held, would have been a strict liability one, in which foreseeability of damage played no part.

But the claimants lost on the facts, not before the judge had given an interesting analysis of the law of causation in this field.

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US court takes important step in resolving human/wildlife conflict at sea

30 September 2015 by

Sea Otters

Sea Otters

California Sea Urchin Commission, et al. v Michael Bean, et al, US District Court, Central District of California (September 18 2015) – read judgment

A Californian court has upheld the protection of marine otters over the interests of commercial fishing.

Sea otters are remarkable marine mammals who live their entire lives at sea, giving birth in the water and clutching their cubs to their bellies as they float in rafts of up to a thousand, holding hands while they sleep to avoid drifting off in the ocean’s currents. But they are not just picturesque; they are essential to the health of the seas. A main component of their diet is the ubiquitous sea urchin, which feeds on kelp. As sea otters have been hunted and killed as by-catch over the centuries, their diminishing numbers have led to the proliferation of the sea urchin population and the consequent disappearance of the kelp forests on the seabed. The damage this does to the marine ecosystem has been inestimable.

This somewhat technical judgment, made on a preliminary application for summary judgment by the fishing industry, therefore marks an important step in the judicial response to marine conservation.
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Cosmetics tested on animals banned in the EU – or are they?

12 December 2014 by

animal-experimentation-rabbit-draize-eye-irritacy-testsR (on the application of the European Federation for Cosmetic Ingredients) v Secretary of State for Business, Innovation and Skills and the Attorney General, British Union for the Abolition of Vivisection and the European Coalition to End Animal Experiments (intervening)  [2014] EWHC 4222 (Admin) 12 December 2014 – read judgment

Conscientious shoppers who check the labelling of shampoos and other cosmetic products for the “not tested on animals” legend may not be aware that there is in place an EU Regulation (“the Cosmetics Regulation”), enforceable by criminal sanctions, prohibiting the placing on the market of any product that has been tested on laboratory animals. Any comfort drawn from this knowledge however may be displaced by the uncertainty concerning the status of cosmetics whose ingredients have been tested on animals in non-EU or “third” countries. (Incidentally the Cruelty Cutter app is designed to enable consumers to test, at the swipe of a smart phone, whether the product they are contemplating purchasing has been tested on animals.)

This case concerned the question of whether, and if so in what circumstances, that Regulation would prohibit the marketing of products which incorporate ingredients which have undergone testing on animals in third countries. It was a claim for judicial review seeking declarations relating to the marketing of cosmetic ingredients which had been thus tested.
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Travails of the War Horse orchestra

23 April 2014 by

War-HorseAshworth and others v the Royal National Theatre [2014] 1176 – read judgment

Anyone who saw one of the early performances of War Horse in its first season at the National Theatre will remember how profoundly moving was the live music, with the musicians visible along the sides of the theatre above the stage.  Since that highly successful (and profitable) first season the role of the orchestra had been radically reduced, and now looks as if it is about to vanish altogether.

Background

War Horse opened at the Olivier Theatre in 2007, but since 2009 it has played at the New London Theatre. The claimants were engaged in March 2009 to play their instruments in the new production,  as a small company of wind players accompanying recorded music.  Productions of War Horse in other parts of the world have relied wholly on recorded music. In light of that, and because both the co-director of War Horse and the composer concluded that it was better for accuracy and impact to deliver the score through recorded music. The National Theatre sent the claimants letters giving notice of termination of their contracts to expire on 15 March 2014. In the letters the National Theatre stated that the grounds were redundancy.

The dispute

The claimants sought an order from the court, prior to the trial of the main action, to require the National Theatre to continue to engage them in the production of War Horse until the trial of their claim. They also relied upon the right to artistic expression protected by Article 10 of the human rights Convention.
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Human rights for homo sapiens’ closest relatives?

4 December 2013 by

koko-chimpanzeeOn Monday at 10.00 Eastern Time, the Nonhuman Rights Project filed suit in Fulton County Court in the state of New York on behalf of Tommy, a chimpanzee, who is being held captive in a cage in a shed at a used trailer lot in Gloversville.

According to the NRP, this is the first of three suits they are filing this week. The second was filed on Tuesday in Niagara Falls on behalf of Kiko, a chimpanzee who is deaf and living in a private home. And the third will be filed on Thursday on behalf of Hercules and Leo, who are owned by a research center and are being used in locomotion experiments at Stony Brook University on Long Island.

The organisation, led by the animal-rights lawyer Steven Wise, is using the writ of habeas corpus on behalf of the animals to ask the judge to grant the chimpanzees the right to bodily liberty and to order that they be moved to a sanctuary where they can live out their days with others of their kind in an environment as close to the wild as is possible in North America.

| Updated (10 December)|: The judge has declined the application for habeas corpus.  According to Steven Wise, Judge Boniello said  “that ‘I’m not going to be the one to make that leap of faith.’” Yet Boniello, who decided that chimpanzee personhood is ultimately a matter for legislatures to decide, was also “unexpectedly sympathetic”, calling their arguments sound and wishing them luck. “I’ve been in a lot of cases, and there’s not been many where the judge says, ‘Good luck.’ Usually they just say, ‘denied’.

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Wind farms, birds, and that pesky thing called the rule of law

28 October 2013 by

bp_whimbrel_15_240409_500Sustainable Shetland, Re Judicial Review, 24 September 2013, Lady Clark of Calton  read judgment

The current storms brought down a turbine in Teignmouth: see here for good pics of this and other mayhem. And the rule of law recently brought down a massive wind farm proposed for Shetland. The Scottish Ministers had waved aside a request for a public inquiry, and ended up drafting reasons which ignored the obligations in the Wild Birds Directive in respect of this bird – the whimbrel. Lady Clark quashed the consent on this ground, and also decided that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which she concluded was a pre-condition for such an application. 

And there is a very good chance that the NGO which brought this challenge would not be entitled to do so if Mr Grayling gets his way, because it might well not have been held to have “standing”. Such a change he would regard as “firmly in the national interest”: see my post of last week on proposed reforms to judicial review rules. There are, to say the least, two sides to that argument about national interest, hence the importance of responding to his consultation paper, with its closing date of 1 November 2013.

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4 slaughterhouses hit high fives: Article 6(1) breaches found

6 April 2013 by

37788084345565012_8oFmp54f_222Julius Kloiber Schlachthof GMBH and others v. Austria, ECtHR, 4 April 2013, read judgment

These ECtHR decisions are the latest in a number of claims by slaughterhouses that their rights were infringed by the exaction of a surcharge by the Austrian national agricultural board. The Court decided that (a) the process of surcharging by administrative bodies engaged the criminal part of Article 6 and (b) the Austrian courts hearing appeals against the surcharges did not have the jurisdiction to carry out a “full review” of the decision to surcharge; only that way could one turn the combination of administrative decision and court decision into a decision by a “tribunal” complying with Article 6.

Now to unpack these complex but important ECtHR rules, and to look at how they play out domestically.

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Eating horse – and where our language comes from

18 February 2013 by

11184_10151497198469853_1198844440_nIt may be a little early to predict the lasting impact of the horsemeat to-do on the law. But one might make a lunge at the following : (i) contractual claims by supermarkets professing outrage, cascading further and further through supplier and sub-supplier until they end up with some far-flung abattoir in Romania, (ii) the odd trading standards prosecution, (iii) a chancy group action by those who say they were horrified at the thought that they might have let horse pass their lips; and (iv) the Horsemeat (It Will Never Happen Again) Regulations 2013 SI 9999/2013 (no link yet available). It is perhaps as well to rein in too much speculation at that point.

But it is timely to say something about when and how much horse our linguistic ancestors ate. By a curious coincidence, I am at the moment reading a book which tells us all about that and lots of other things.

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No hunting on my land, please: but only if my objections are based on conscience

23 October 2012 by

Chabauty v France 4 October 2012 – read judgment

I have posted previously on cases involving the ethical objection of landowners to being forced to allow hunting over their property.

These objections have generally found favour with the Strasbourg Court in the balancing of private and public interests under the right to property.  Mr Chabauty puts the issue into another perspective. He also complained that he was unable to have his land removed from the control of an approved municipal hunters’ association. The difference was – and this proved to be critical to the outcome of the case –  Mr Chabauty is not himself against hunting on ethical grounds. Since no conscience was underlying his Convention complaint, the Court found it not to be disproportionate for the French state to require small landowners to pool their hunting grounds. As such, there had been no violation of Article 1 Protocol 1 or Article 14.
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Warning: Wild Lawyers at Large

28 September 2010 by

A group of lawyers, academics and campaigners has been deciding how to shake up our legal landscape to make the future safer for our environment.

Sixty years of human rights and it feels like they’ve been with us for ever.  Two hundred and nine years since the founding fathers’ Bill of Rights came into effect in the United States; two hundred and eleven since the French National Assembly adopted the Declaration of the Rights of man. Now, there are more humans to seek out and flourish those rights than was ever imaginable in those brave new worlds.

In Paul Simon’s words, there are

Too many people on the bus from the airport

Too many holes in the crust of the earth

The planet groans

Every time it registers another birth

People’s rights and aspirations, as set out in these pioneering aristocratic instruments, may have reached the end of their useful life.

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