Animals


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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One trade freedom we could do without

28 June 2016 by

istock_000004682690small_cowsSupporters of Brexit and campaigners for animal welfare are not natural bedfellows. And indeed my quick poll of the intuitive reaction to Thursday’s vote revealed anxiety about a future race to the bottom in terms of welfare standards as European regulations are unpicked and new trade deals are carved out, whether with individual member states of the EU, the European Union as a whole, or under the surveillance of the WTO. (But here’s a call for action: https://action.ciwf.org.uk/ea-action/action?)ea.client.id=119&ea.campaign.id=53173&ea.tracking.id=98b15a7c&utm_campaign=transport&utm_source=ciwftw&utm_medium=twitter

Which is why it is critical at this moment to remember that the obstacle in the way of this country reviewing its participation in the trade in live animals is one of the pillars of the EU Treaty: free movement of goods. Animals are regarded as goods, and any measure adopted by a member state government interfering with the movement of livestock within the single market and beyond its borders with its trading partners has been prohibited as a “quantitative restriction” on exports. When we are eventually free of this overarching prohibition, no time should be lost in grasping the opportunity to alter our laws in recognition of humane standards in animal husbandry.

Some Background: veal crates and the port protests in the 1990s

Just at the time when the red carpet was being rolled out for the Human Rights Act, campaigners for the rights of non human animals had their eye on a much more difficult task: persuading the government that shipments of young calves to veal crates across the Channel defeated our hard-won animal welfare laws and were in breach of the EU’s own proclaimed animal protection measures. The practice of rearing veal for the popular white meat involves confining a week old calf in a box for five months until slaughter. The well respected farm animal charity Compassion in World Farming managed to convince the UK courts that they not only had standing but an arguable case that this export trade breached the domestic prohibition on the veal crate system as well as the relevant EU Convention and Recommendation. CIWF contended that the UK government had power under Community law

to restrict the export of veal calves to other Member States where the system described above was likely to be used, contrary to the standards in force in the United Kingdom and the international standards laid down by the Convention to which all the Member States and the Community had agreed to adhere….

the export of calves to face rearing contrary to the Convention is considered to be cruel and immoral by animal welfare organisations and a considerable body of public opinion, supported by authoritative scientific veterinary opinion, in the Member State from which exports occur.

In fact the EU rules merely contained stipulations as to the minimum width of veal crates and the composition of veal calves’ diets.
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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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When can the courts rule on the legality of future behaviour?

4 August 2015 by

toad_white_natterjackKent & others v Arun District Council and others [2015] EWHC 2295 – read judgment

Iain O’Donnell of 1COR acted for the Council in this case: he played no part in the writing of this post.

This case concerned the application of the law in relation to future conduct, in particular, the role of the judicial review procedure in determining what precisely is meant by the prohibition on the selling of live animals under the Pet Animals Act 1951.

This is a detailed statutory provision inspired by welfare and conservation concerns. It has a complicated legislative history, and essentially the judge hearing the application was being asked to decide whether certain future activities might be caught by it.

For the record, the statute was introduced to protect the welfare of animals sold as pets. It requires any person keeping a pet shop to be licensed by the local council, which will only license such a business if they are satisfied as to the suitability of the accommodation, nutrition and safety of the animals concerned. Section 2 bans the selling of animals in the street, including on barrows and markets.

Councils are responsible for enforcing the law in this area.
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Slaves, animals and Lord Mansfield

16 February 2015 by

tumblr_my6p9rVBx11ssmm02o7_r1_500A fascinating riff has been playing around the London Review of Books since Stephen Sedley (erstwhile Sedley LJ) reviewed a biography of the 18th century judge Lord Mansfield – here – part £, but the excellent letters of response are open access.

Mansfield is perhaps best known by commercial lawyers for injecting into the hitherto archaic English commercial law some element of rationality. But he also ended up trying cases involving the ownership of slaves, and had therefore to decide how ownership fitted in with things like habeas corpus. 

But first a bit of historical background about our man, and some indications of the differing times in which he lived – much of it thanks to Sedley’s review.

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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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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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Strasbourg ties itself in knots over advertising ban

23 April 2013 by

primate adAnimal Defenders International v  United Kingdom, April 22 2013 – read judgment

In what was a profoundly sad day for democracy, on 22 April 2013 the European Court of Human Rights found in favour of the UK government in a landmark test case concerning a TV advertisement produced by ADI in 2005, and subsequently banned under the Communications Act 2003.

This announcement by Animal Defenders International (ADI) describes the fate of a film from which the picture above is taken. The verdict was carried through by a majority of one – eight out of seventeen judges dissented. And the reference to “democracy” in ADI’s response to the judgment is not overblown. The general trend of the majority appears to suggest that it is legitimate, in a democracy, for a government to impose a blanket restriction on the exercise of freedom in the name of broadcasting freedom. Such an aim is not one of those listed in Article 10(2). As some of the dissenting judges pointed out,

The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all.

….A robust democracy is not helped by well-intentioned paternalism.
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The only people really not allowed to mention the Holocaust

13 November 2012 by

Peta Deutschland v Germany  (No. 43481/09) – read judgment

Referring to the concentration camps has become an offence on a par with holocaust denial, it seem, in certain contexts.

In 2004 the applicant animal welfare association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.

Three individuals filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. They submitted that the intended campaign was offensive to them as survivors of the holocaust and violated their human dignity.
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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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Hunting, animals, and the evolving landscape of rights

4 July 2012 by

Herrmann v Germany (Application no. 9300/07) 26 June 2012 – read judgment

The Grand Chamber of the European Court of Human Rights has ruled that the obligation of a landowner to allow hunting on his property violated his Convention rights. Although the majority based their conclusion on his right to peaceful enjoyment of possessions,  the partially concurring and dissenting opinions and the judgment as a whole provide an interesting insight into the way freedom of conscience challenges are to be approached in a secular society where religion holds less sway than individual ethical positions on certain issues.

Background

In 2002 the Federal Constitutional Court in Germany ruled that the granting of exceptional authorisation for the slaughter of animals without previous stunning, on religious grounds, did not breach the German Basic Law Schächt-Entscheidung (BVerfGE 99, 1, 15 January 2002). The social uproar that followed the ruling led to the German constitutional legislature taking a significant step aimed at protecting animal welfare with the 2002 constitutional reform, by including Article 20a in the Basic Law:

“Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation…”
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