West Law Report

R (CAMPAIGN TO END ALL ANIMAL EXPERIMENTS) v HOME SECRETARY

Posted in Animal welfare, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 8:21 PM BST 30/04/2008
Court of Appeal (Civil Division)

May, Dyson and Moses LJJ

April 23, 2008

Animal research organisations – Animal welfare – Guidelines – Irrationality – Licences – Subordinate legislation – Vivisection – Categorisation of Adverse Effects Under Animals (Scientific Procedures) Act 1986 – s. 21 Animals (Scientific Procedures) Act 1986

FACTS

The appellant secretary of state appealed against a decision ([2007] EWHC 1964 (Admin)) that a chief inspector of the Animals (Scientific Procedures) Inspectorate appointed by him to perform an investigation had misconstrued statutory guidance and reached a perverse conclusion. The respondent union (B) cross-appealed from the judge’s dismissal of another part of its case. The inspector had been appointed after B had raised concerns with the secretary of state that adverse effects experienced by marmosets as a result of tests forming part of research by a university into the functioning of the human brain ought to have been categorised as “substantial” instead of “moderate”. The inspector had analysed the Guidance on the Operation of the Animals (Scientific Procedures) Act 1986, as published pursuant to s. 21 of the Act, and had found the effects to have been properly categorised and on the basis of his report, the secretary of state had taken no action.

B had applied for judicial review of the decision that the procedures were properly categorised and the court had found the inspector’s conclusion to be wrong in part. It had found that the criterion for classification of a procedure requiring a “substantial” severity limit was that the procedure may result in a “major departure” from the animal’s state of health or well-being, and that the inspector had not accepted that adverse effects severe enough to require the killing of the animal were capable of amounting to major departures from its health or well being.

The judge had found that the only conclusion open to the inspector was that the effects of the university’s procedures were properly to be classified as “substantial” and that his conclusion could not stand. The secretary of state submitted that

  1. (1) the judge had been wrong to decide that anticipated humane killing was an indicator of severity in the sense that it would require a severity limit of “substantial”;
  2. (2) the judge had had no proper basis for rejecting scientific expert evidence and had been wrong in law to find that the inspector had misconstrued the Guidance and that a “substantial” severity limit had been the only conclusion open to him on the facts.

ISSUES

(1) Whether the judge had been wrong to decide that anticipated humane killing was an indicator of severity in the sense that it would require a severity limit of “substantial”.

(2) Whether the judge had had no proper basis for rejecting scientific expert evidence and had been wrong in law to find that the inspector had misconstrued the Guidance and that a “substantial” severity limit had been the only conclusion open to him on the facts.

HELD (appeal allowed, cross-appeal dismissed)

(1) There was no dispute that humane killing was not, itself, an adverse effect. Its purpose was to prevent or control adverse effects. The purpose of humane killing was to prevent or bring an end to what would otherwise be adverse effects. It was a matter of expert scientific judgment whether the state of the animal before it was humanely killed would comprise adverse effects requiring a “substantial” severity limit, or even a “moderate” severity limit, since the risk of exceeding a “mild” severity limit might be avoided by humane killing. The reference to “humane endpoints” in para.5.41 of the Guidance implied no more than that humane killing should be taken into account where appropriate and neither that wording nor the reference to “acute toxicity procedures where…death is an endpoint” necessarily equated with or predicated humane killing or detracted from the analysis of severity limits.

(2) The court should be very slow to conclude that the inspector and the expert witness in the court below had reached a perverse scientific conclusion. The Guidance, and scientific judgment generally, was not immune from lawyers’ analysis but the court had to be careful not to substitute its own inexpert view of the science for a tenable expert opinion. In the instant case, the inspector’s review had not been shown to have proceeded on an error of law as to the meaning and application of the first sentence of the description of the “substantial” severity limit. The judge could not have found the inspector’s conclusions to be perverse without an intense analysis of expert scientific material, which he had rightly not attempted to undertake. Therefore his decision that the inspector’s decision was clearly wrong could not stand.

(3) B’s assertions on the cross-appeal concerned essentially factual questions that were at the very fringe of what was appropriate for a court to consider on a judicial review application. Its submissions contained pages of dense factual material about individual marmosets, which should not be the subject of detailed inexpert analysis in court when they raised no important point of law or factual matter of enduring relevance. The main question was whether the animals had been properly cared for, and the inspector had been properly entitled to find that they had.

Nigel Giffin QC and Julian Milford (instructed by Treasury Solicitor) for the appellant. Richard Drabble QC and Simon Cox (instructed by David Thomas) for the respondent.

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