Factual and Procedural Background
On 20th September 2023, the First Interested Party ("the CPS") initiated prosecution proceedings against the Claimants by way of requisition. The Claimants were charged with offences under regulation 30(1) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 ("WATOK"). The Claimants argued that the prosecution was improperly instituted because the CPS lacked the power to initiate it. District Judge Matthews rejected that argument in a judgment dated 5th March 2024, holding the prosecution had been lawfully commenced. The Claimants sought judicial review of this decision, with permission granted by Griffiths J.
The prosecution arose from an incident on 19th October 2022 at a slaughterhouse operated by the First Claimant, where the Second and Third Claimants were employed. The Second and Third Claimants were alleged to have breached animal welfare provisions of WATOK, and the First Claimant was alleged to have caused or permitted those breaches. The alleged offences were strict liability offences.
Prior to the first hearing, the Claimants requested written confirmation of the CPS's authority to prosecute, to which the CPS responded that it was acting pursuant to an assignment ("the Assignment") made by the Attorney General in 2011, transferring prosecutorial functions of the Second Interested Party ("the Secretary of State") to the CPS.
The Claimants challenged the validity of the Assignment and the Secretary of State's power to prosecute under WATOK, contending that the prosecutorial function was vested in the Third Interested Party ("the FSA") and not the Secretary of State, and thus the CPS had no authority to prosecute. The First to Third Interested Parties defended the legality of the prosecution and the Assignment. The Fourth Interested Party supported the Claimants but did not submit evidence or participate in the hearing.
Legal Issues Presented
- Whether the Secretary of State had the power to prosecute for offences under WATOK.
- Whether the Assignment made by the Attorney General effectively transferred any prosecutorial function the Secretary of State had to the CPS.
- Whether the FSA was the competent authority with prosecutorial powers under WATOK and related EU regulations.
- Whether, if the Assignment was ineffective, the prosecution was nonetheless properly instituted by the CPS relying on other powers, including the general powers under the Prosecution of Offences Act 1985.
- The applicability of section 31(2A) of the Senior Courts Act 1981 in refusing relief if the prosecution would have been validly commenced regardless of the Assignment.
Arguments of the Parties
Claimants' Arguments
- The Secretary of State had no power to prosecute for breaches of WATOK because the prosecutorial function was vested in the FSA as the competent authority under WATOK and Article 138 of the 2017 Official Controls Regulation ("the 2017 OC Regulation").
- The Assignment was ineffective to transfer any prosecutorial function to the CPS, either because the Secretary of State lacked such power or because the Assignment did not properly include the power to prosecute breaches of WATOK.
- Even if the Secretary of State had a power to prosecute, it was not capable of being assigned to the CPS under the 1985 Act.
- The CPS relied expressly on the Assignment as authority to prosecute and thus could not rely on other powers; the preconditions for exercising other powers were not met.
- The 2019 Official Controls Regulations altered the respective roles of the Secretary of State and the FSA, limiting the Secretary of State's prosecutorial functions.
First to Third Interested Parties' Arguments
- The Secretary of State did have the power to prosecute for breaches of WATOK, either by virtue of his status as a corporation sole or as the competent authority for matters not designated to the FSA.
- The FSA was designated competent authority only for limited purposes under WATOK and the 2017 OC Regulation, which did not include initiating prosecutions.
- The Assignment was effective to transfer the Secretary of State's prosecutorial functions to the CPS pursuant to section 3(2)(g) of the Prosecution of Offences Act 1985.
- Even if the Assignment was ineffective, the CPS had inherent or statutory powers under the 1985 Act to initiate prosecutions.
- Section 31(2A) of the Senior Courts Act 1981 should apply to refuse relief as the outcome would not differ if the prosecution had been commenced on a different basis.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 |
Principles of statutory interpretation: natural and ordinary meaning in context. |
Guided the interpretation of the Assignment as an exercise of statutory power, focusing on realistic and contextual reading. |
| R(Highbury Poultry Farm Produce Ltd) v Telford Magistrates' Court [2020] UKSC 39 |
EU competence generally excludes criminal law; distinction between enforcement measures and prosecution. |
Supported the conclusion that Article 138 does not confer prosecutorial powers on the FSA. |
| Riley & others v DPP [2016] EWHC 2531 (Admin) |
Distinction between investigator and prosecutor roles; importance of separation. |
Supported the principle that investigation and prosecution are distinct functions, consistent with the CPS prosecuting and the FSA investigating. |
| Chesterfield Poultry Ltd v Sheffield Magistrates' Court [2020] 1 WLR 499 |
Clarification of roles of FSA and CPS in animal welfare prosecutions. |
Reinforced the separation between investigation and prosecution roles. |
| R v Rollins [2010] UKSC 39 |
General principle that statutes creating offences do not specify who may prosecute; any person may prosecute unless expressly limited. |
Supported the conclusion that WATOK offences can be prosecuted by any person, including the Secretary of State as a corporation sole. |
| R (Bin Khalifa) v Alsaqabi (unreported) |
Private prosecution rights are personal and not assignable upon death. |
Distinguished from the Assignment here, which was a statutory allocation of functions rather than a private assignment of rights. |
| Food Standards Agency v Euro Quality Lambs Ltd [2022] UTUK 64 (AAC) |
Interpretation of FSA's competence under related regulations; comprehensive but non-exhaustive roles. |
Confirmed the bifurcation of enforcement roles between Secretary of State and FSA; did not resolve prosecutorial powers issue. |
Court's Reasoning and Analysis
The court began by interpreting the Assignment made by the Attorney General under section 3(2)(g) of the Prosecution of Offences Act 1985. It emphasized that the Assignment was an allocation of prosecutorial functions from the Attorney General to the Director of Public Prosecutions (DPP), not a private assignment of rights between parties. The context of the Assignment was the transfer of prosecutors from the Department of Environment, Food and Rural Affairs (DEFRA) to the CPS, with the intention that prosecutorial functions would pass accordingly.
The court rejected the Claimants' argument that the Assignment was limited to investigations conducted by the FSA only insofar as those investigations were on powers conferred on the Secretary of State. The wording was interpreted as descriptive, not restrictive, and the Assignment was effective to transfer the Secretary of State's prosecutorial functions to the CPS.
Next, the court addressed whether the Secretary of State had prosecutorial power under WATOK. It held that WATOK did not expressly confer prosecutorial powers on any particular body, consistent with the general principle that offences may be prosecuted by any person unless expressly limited. The FSA was designated competent authority for limited enforcement actions under regulation 4 and Article 138 of the 2017 OC Regulation, but these provisions did not include the power to prosecute. The court analyzed Article 138 carefully, concluding that it requires competent authorities to take measures to remedy non-compliance and prevent recurrence, which are forward-looking actions distinct from prosecution, a backward-looking punitive measure. The absence of prosecution in the non-exhaustive list of measures in Article 138 reinforced this conclusion.
The court further found that the Secretary of State, as a corporation sole, had the power to prosecute in the same manner as a private individual, and that prosecuting breaches of WATOK was within the proper functions of the Secretary of State. The Claimants' argument that the Secretary of State's powers were limited or excluded by the 2019 OC Regulations or other provisions was rejected.
Regarding the assignability of prosecutorial powers, the court distinguished the statutory Assignment from private assignments or succession issues, holding that the Attorney General validly allocated the Secretary of State's prosecutorial functions to the DPP under the 1985 Act.
Finally, the court considered whether the prosecution could have been properly instituted by the CPS relying on general powers under the 1985 Act if the Assignment was ineffective. It concluded that this issue was academic given the finding that the Assignment was effective and that the CPS relied solely on the Assignment in instituting the prosecution. The court also addressed the applicability of section 31(2A) of the Senior Courts Act 1981, concluding it would not preclude relief if the prosecution had been invalidly commenced on the Assignment basis.
Holding and Implications
The court DISMISSED the Claimants' application for judicial review.
The holding was that the Secretary of State had the power to initiate prosecutions for breaches of WATOK, and that the Assignment made by the Attorney General under section 3(2)(g) of the Prosecution of Offences Act 1985 was effective to transfer that prosecutorial function to the CPS. Consequently, the CPS lawfully commenced the prosecution of the Claimants relying on the Assignment, and the District Judge's decision to that effect was correct.
No broader precedent was established beyond affirming the proper interpretation of the Assignment and the allocation of prosecutorial powers under the relevant statutory and regulatory framework. The direct effect is to uphold the validity of the prosecution against the Claimants.