Hearing dates: 18th and 19th March 2025

Further written submissions: 21st March – 11th April 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Mr Justice Eyre

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Mr Justice Eyre:

Introduction .

1. On 20th September 2023 the First Interested Party (“the CPS”) initiated the prosecution of the Claimants by way of requisition. The Claimants were charged with offences contrary to regulation 30(1) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 (“WATOK”). The Claimants submitted that the proceedings had been improperly instituted because the CPS did not have power to initiate the prosecution. By her judgment of 5th March 2024, District Judge (MC) Matthews rejected that argument and held that the prosecution had been lawfully commenced. The Claimants apply for judicial review of that decision pursuant to permission granted by Griffiths J.

2. The Claimants contend that the Judge's decision was wrong in law. In initiating the prosecution, the CPS had purported to be acting in reliance on an assignment by the Attorney General dated 10th July 2011 (“the Assignment”). The Assignment was made pursuant to section 3(2)(g) of the Prosecution of Offences Act 1985 and transferred to the CPS the prosecutorial functions of the Second Interested Party (“the Secretary of State”). The core of the Claimants' case is the assertion (ground 1 of the judicial review claim) that the Secretary of State had no power to prosecute for offences under WATOK and that, as a consequence, the Assignment was not effective to give the CPS any power to prosecute. There is a subsidiary argument (ground 2 of the claim) turning on the interpretation of the Assignment and to the effect that, properly interpreted, the document did not give the CPS the power to initiate a prosecution for a breach of WATOK.

3. The First – Third Interested Parties contend that the Judge's decision was correct. They say that the Secretary of State had the power to prosecute for offences under WATOK and that the Assignment was effective to pass that power to the CPS.

4. In its Acknowledgement of Service of 28th May 2024, the Fourth Interested Party expressed its support for the claim and the quashing of the Judge's decision. It noted that the First Claimant is a member of the Fourth Interested Party. At that time, the Fourth Interested Party said that it wished to put evidence before the court “as to the general importance of these issues to the meat industry”. It has not, however, submitted any evidence and it took no part in the hearing before me.

The Proceedings in the Magistrates Court .

5. The prosecution arose out of an incident on 19th October 2022 at a slaughterhouse which was operated by the First Claimant and at which the Second and Third Claimants were employed as slaughterhouse operatives. The actions of the Second and Third Claimants were said to have breached the animal welfare provisions of WATOK and the First Claimant's alleged offending was said to have arisen by way of causing or permitting those actions. The alleged offences are strict liability offences.

6. In advance of the first hearing date, the Claimants' lawyers had sought written confirmation of the power under which the CPS was acting. In response the CPS had said that it was acting pursuant to and in reliance on the Assignment.

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7. The essence of the Claimants' argument before the Judge turned on the proper interpretation of regulation 4(1)(c)(iii) of WATOK and of article 138 of EU Regulation 2017/625 on official controls … to ensure… animal health and welfare (“the 2017 OC Regulation”)1. The Claimants relied on the designation in regulation 4 of the Third Interested Party (“the FSA”) as the competent authority for the purpose of “taking action in the event of any non-compliance with the EU Regulation or these Regulations in accordance with Article 138 [of the 2017 OC Regulation]”. They said that the effect of that provision was to vest the power to prosecute for breaches of WATOK in the FSA with the consequence that the Secretary of State had no power to prosecute for such breaches. The Assignment could not, therefore, operate to vest powers to prosecute in the CPS. The argument has developed further in the course of the proceedings but the contention that the prosecutorial function was vested in the FSA and not in the Secretary of State remains at the heart of the Claimants' case.

8. In a commendably concise and lucid judgment, the Judge rejected that contention. She held that, properly interpreted, regulation 4 and article 138 did not pass the power to prosecute for breaches of WATOK to the FSA. In essence this was because the initiation of a prosecution was not action to ensure compliance with the regulations within the meaning of article 138. Instead, the power to prosecute remained with the Secretary of State and had been effectually passed to the CPS by the Assignment.

The Context and Terms of the Assignment .

9. Before September 2011, there was a team of prosecutors within the Department of Environment, Food and Rural Affairs (“DEFRA”). In September 2011, the members of that team were transferred to work in the CPS. That transfer was with the intention that conduct of the prosecutions which they had formerly undertaken under the auspices of DEFRA should pass to the Director of Public Prosecutions (“the DPP”) to be undertaken by the CPS.

10. The Assignment was made with a view to giving effect to that intention.

11. The Assignment was made by the Attorney General. Having invoked his power under section 3(2)(g) of the 1985 Act the Attorney General stated:

12. The Assignment contained an Explanatory Note which said:

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13. The Assignment predated the making of WATOK but the legislation listed in the annex included the Welfare of Animals (Slaughter or Killing) Regulations 2006.

14. In January 2012 a Memorandum of Understanding was agreed between the Secretary of State, the CPS, and the FSA. This set out “the co-operation arrangements between [those bodies] in respect of the investigation and the institution and prosecution of criminal proceedings in respect of Defra Casework in England and Wales”. The Memorandum was revised in April 2016. Annex A to the Memorandum was headed “Respective Roles of the Investigators and CPS Prosecutors in Criminal Investigations” and was said to be “guidance for Investigators and Lawyers”. Under the heading “CPS — status and role” the Annex included the following:

15. There is a Service Level Agreement between the Secretary of State, the Welsh Government, and the FSA in respect of the arrangements in place between the former two bodies and the FSA “for the purpose of delivery of activities relating to animal health and welfare policy in approved meat establishments”. At paragraph 6.1 the Agreement says:

16. At Annex 4 the Agreement included the following:

17. The requirements on the FSA included:

Regulation 4 of WATOK and Article 138 of the 2017 OC Regulation .

18. It will be necessary to consider a number of legislative provisions but at the heart of the case is the question of the proper interpretation of regulation 4 of WATOK and of article 138 of the 2017 OC Regulation.

19. The relevant parts of regulation 4 provide that:

20. The EU Regulation to which reference is made in regulation 4 is defined by regulation 3(1) as being Council Regulation (EC) 1099/2009 on the protection of animals at the time of killing.

21. The relevant parts of article 138 provide that:

The Parties' Central Propositions in Summary and the Issues flowing from them .

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22. The starting point for the Claimants' case was the contention that on a proper interpretation of WATOK and the 2017 OC Regulation the FSA was competent to initiate prosecutions for breaches of WATOK. The Claimants do not say that the FSA has an exclusive right to prosecute for such breaches. They do, however, say that the Secretary of State was not given a prosecutorial function by WATOK and could not rely on those regulations for a power to initiate prosecutions for breaches of the regulations.

23. The Claimants then say that to the extent that the Secretary of State had a power to initiate a prosecution by virtue of his status as a corporation sole that does not advance matters. This is because that power can only be used to further the functions of the Secretary of State and prosecuting for breaches of WATOK is not such a function in light of the terms of WATOK.

24. The Claimants say that the preceding points mean that the Secretary of State had no prosecutorial function which could be passed to the DPP by the Assignment. In addition, they advance an argument as to the proper interpretation of the Assignment. They say that by virtue of WATOK the FSA had a power to investigate breaches of WATOK of its own initiative. That meant that, whatever may have been the position in 2011, after WATOK came into force the Assignment, properly interpreted, did not pass a power to prosecute to the CPS.

25. Alternatively, the Claimants say that even if the Secretary of State had a power to prosecute that power was not capable of being assigned and so could not pass to the DPP by the Assignment.

26. Finally, the Claimants say that as the CPS expressly relied on the Assignment as the source of its power to initiate these prosecutions it cannot say that the prosecutions were in fact brought in reliance on powers under the 1985 Act. They also say that the preconditions for the exercise of those powers were not satisfied here and that the CPS did not have an inherent right to commence the prosecutions.

27. The First – Third Interested Parties say that the Secretary of State had the power to prosecute for breaches of WATOK. Although the FSA was made the competent authority for various purposes under WATOK it was not the competent authority for all purposes. The purposes for which the FSA was the competent authority did not include the commencement of prosecutions. The First – Third Interested Parties say that the Secretary of State had a prosecutorial function which was capable of being transferred by an assignment under section 3(2)(g) of the 1985 Act. That function arose either by reason of the Secretary of State's ability to initiate a prosecution as a corporation sole or because the commencement of prosecutions was a matter in respect of which the Secretary of State was the competent authority for the purposes of WATOK. On either basis that prosecutorial function was capable of being transferred under the 1985 Act and, properly interpreted, the Assignment was effective to pass that power to the CPS.

28. The First – Third Interested Parties accept that if the Secretary of State had no power to initiate a prosecution for a breach of WATOK the Assignment could not operate to give the CPS such a power. In her skeleton argument for the CPS, Miss Ailes had 9submitted that the Assignment could operate to give a power to the CPS regardless of whether the Secretary of State had a prosecutorial function. Rightly, she did not pursue that line of argument in her oral submissions. However, the CPS did say that even if the Assignment was not effective to authorize the commencement of the prosecutions they were nonetheless validly commenced. In that regard Miss Ailes relied on the powers of the CPS under the 1985 Act and said that, in addition, the CPS had an inherent power to commence the prosecutions. In conjunction with these arguments the First – Third Interested Parties invoke section 31(2A) of the Senior Courts Act 1981. They say that relief should be refused on the basis that even if the Assignment did not provide a valid authority for the initiation of the prosecutions the CPS could have commenced them relying on its other powers.

29. Logically, the first question to be addressed is the proper interpretation of the Assignment. Was that effective to allocate to the CPS such prosecutorial function as the Secretary of State had to commence prosecutions for breaches of WATOK? If it was effective to do that it will then become necessary to consider whether the Secretary of State had a power to prosecute which was capable of passing to the CPS by virtue of the Assignment. That will require consideration of the Claimants' argument that the FSA was the competent authority for bringing prosecutions for breaches of WATOK. If the Secretary of State did not have such a power, it will then become necessary to consider whether the prosecutions were validly commenced by reason of powers which the CPS had independently of the Assignment. Finally, if the prosecutions were not validly commenced the effect of section 31(2A) of the Senior Courts Act would have to be considered.

The Interpretation and Effect of the Assignment .

30. The Assignment must be interpreted having regard to the language used when read in context. As Lord Carnwath explained in Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33, [2019] 1 WLR 4217 at [19]:

31. There are a number of aspects of the context of the Assignment which are relevant here.

32. The first is that although it is described as an assignment the document records an exercise by the Attorney General of his power to assign functions pursuant to section 3(2)(g) of the 1985 Act. In that provision “assigned” is used in the sense of “allocated”. The Assignment was not an inter partes assignment where one party assigns to the other party (whether by deed or otherwise) particular identified rights of the former party with the assigning party thereby losing those rights. By the Assignment the Attorney General allocated certain functions to the DPP for that official to discharge. The Attorney General was not assigning powers in the sense that he was surrendering those powers to another. Similarly, the Assignment was not an instrument to which the Secretary of State was a party and in which he was purporting to pass certain powers to the DPP.

33. The nature of the Assignment as a record of an exercise of the Attorney General's power under section 3(2)(g) is central to the approach to be taken to its interpretation. The document is to be read realistically in light of its nature in order to consider what 10functions were being allocated to the DPP. It was not a statute and is not to be read as such. However, I remind myself that while the approach to interpretation must be realistic it cannot be cavalier. The Assignment was a formal document recording the exercise of a statutory power in the context of criminal prosecutions and so a degree of formality and precision is to be expected.

34. The factual background is significant. As explained at [9] above the immediate context of the Assignment was the transfer to the CPS of the team of prosecutors the members of which had formerly been on the staff of DEFRA. No prosecutors remained in that Department and the intention was that the Department would cease to exercise a prosecutorial function with that function passing to the CPS. A reading of the Assignment which would leave any part of the Secretary of State's power to prosecute with the Secretary of State and outside the allocation of functions to the DPP would be inconsistent with that intention and would create the practical problem of how such a power could be exercised.

35. It is significant that the work of the FSA spanned the areas for which two different government departments were responsible: DEFRA and the Department of Health and Social Care. The references in the Assignment to matters “within the area of responsibility” of the Secretary of State and within his “policy responsibility” are to be read in that context. When seen against that background they are to be interpreted as operating to distinguish the areas for which the Secretary of State was responsible from those for which the Secretary of State for Health and Social Care was responsible. They are not properly to be read as distinguishing areas for which the Secretary of State was responsible from those for which the FSA was responsible.

36. In support of the argument that the Assignment did not pass the power to prosecute for breaches of WATOK to the DPP the Claimants point to two aspects of the Assignment. Those are the references to the responsibility of the Secretary of State which I have just addressed and the phrase in parentheses “who act on powers conferred on the Secretary of State”. They say that since the coming into force of WATOK in 2015 the FSA's power to investigate (at least in this field) was not a power conferred on the Secretary of State. Instead, the FSA was, when investigating, acting of its own initiative and exercising powers flowing from WATOK. The Claimants say that this means that the power to commence prosecutions flowing from those investigations was not within the scope of the Assignment.

37. Did the fact that WATOK gave the FSA a power as competent authority to investigate mean that the Assignment was no longer effective to allocate the Secretary of State's prosecutorial function to the DPP?

38. It is to be remembered that for present purposes the question is to be addressed on the footing that the Secretary of State has, at least potentially, a prosecutorial function under WATOK. The question at this stage is whether the Assignment is to be read as purporting to allocate such a function to the DPP. If, correctly interpreted, it did purport to make such an allocation the next question will be whether it was ineffective because there was no such function to be allocated. It follows that the Claimants' interpretation would have an artificial result. It would mean that the Assignment had been effective to allocate the Secretary of State's prosecutorial function to the DPP in respect of offences under the regulations which had preceded WATOK but that after WATOK came into effect that function reverted to the Secretary of State.

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39. That interpretation is neither a necessary nor a natural reading of the Assignment. The words in parentheses were an accurate description of investigations conducted by the FSA at the time of the Assignment and are to be seen as words of description and not words of limitation. They are not saying that the functions are allocated to the DPP in relation to the FSA's criminal investigations “provided that” or “so long as” the FSA is acting on powers conferred on the Secretary of State. In that regard the bracketed phrase is to be contrasted with the words “to the extent that” in (a)(iv). Those are words of limitation making it clear that the power to prosecute in respect of FSA investigations outside the Secretary of State's field of responsibility was not being allocated to the DPP. If the intention had been to confine the Assignment in the way for which the Claimants contend then the same words could have been used in the bracketed phrase. Such words were not used and instead the operative part of the assignment was the allocation to the DPP of the Secretary of State's power to prosecute for offences arising out of investigations conducted by the FSA.

40. The fact that since WATOK came into force the FSA's investigations in the field of the welfare of animals at the time of killing have been investigations which the FSA has had power to make under WATOK does not mean that the investigations ceased to be “criminal investigations conducted by officials of … the FSA” falling within the Secretary of State's area of responsibility. They remain such investigations and as such they remained within the scope of the Assignment.

41. The First – Third Interested Parties argued that in exercising its investigative powers under WATOK the FSA was still acting “on powers conferred on the Secretary of State”. The contention was that this was because WATOK were regulations made by the Secretary of State and the designation of the FSA as the competent authority for certain purposes was made by the Secretary of State. These Interested Parties said that the powers had ultimately been conferred on the Secretary of State. There is some force in this argument but it is a somewhat strained interpretation of the phrase in the Assignment and I arrive at my conclusion as to the interpretation of the Assignment without relying on it.

42. It follows that the Assignment was effective to vest in the DPP such power as the Secretary of State had to prosecute for breaches of WATOK. The Assignment operated to vest in the Director various functions of the Secretary of State and not those of the Attorney General. The Attorney General would undoubtedly have a power to institute a prosecution for a breach of WATOK but the Explanatory Note makes it clear that the Assignment was not purporting to allocate that power to the DPP. Accordingly, if the Secretary of State does not have power to institute such a prosecution the Assignment will not have been effective to give the Director (and so the CPS) such a power and so will not have been effective to provide authority to commence the prosecutions with which the District Judge was concerned. I turn, therefore, to the issue of the powers of the Secretary of State.

Did the Secretary of State have a prosecutorial Function capable of being assigned to the DPP under the 1985 Act?

43. The Claimants' primary submission is that WATOK made the FSA the competent authority for the purposes of the prosecution of breaches of those regulations. They say that this was to the exclusion of the Secretary of State and that the Secretary of State does not have prosecutorial functions in respect of such breaches by virtue of any other 12power. The Claimants do not contend that the FSA has the exclusive power of prosecution and accept that there could be a private prosecution for a breach but say there could not be a prosecution by the Secretary of State. By way of a fallback position the Claimants submit that even if the FSA's competence under WATOK did not extend to the prosecution of breaches there was nonetheless no prosecutorial function vested in the Secretary of State. There are a number of subsidiary issues to be addressed. It will be necessary to consider whether the FSA has a prosecutorial function under WATOK; whether the Secretary of State has a prosecutorial function under the terms of WATOK; and whether the Secretary of State has a power to prosecute arising otherwise than from the terms of WATOK and which was not excluded by those provisions. Those are all to be viewed in the context of the framework of WATOK and of the 2017 OC Regulation.

The Framework of WATOK and of the 2017 OC Regulation.

44. The relevant parts of regulation 4 of WATOK are set out above. Regulations 5 – 21 deal with the operations which require either a certificate or a licence and with the arrangements governing certificates and licences.

45. By virtue of regulation 25 the additional requirements for slaughterhouses are laid down in schedule 1. Regulations 26 – 29 and the schedules to which they refer make provision for killing other than in slaughterhouses.

46. By regulation 30(1)(c) it is an offence to contravene the requirements in relation to slaughterhouses and by regulation 30(2) it is an offence to fail to comply with an enforcement notice.

47. Regulation 33 provides for the penalties for offences contrary to regulation 30 or 31 (the latter being obstruction offences).

48. By regulation 34 the competent authority or a local authority “may appoint inspectors for the purpose of enforcing the EU Regulation and these Regulations” and regulations 35 – 37 provide for the powers of inspectors.

49. Regulations 38 and 39 provide enforcement notices; for their service by inspectors; and for appeals against them.

50. Regulation 40 empowers local authorities to prosecute offences under WATOK. The First — Third Interested Parties say that this express power was necessary because of the power given in section 222 of the Local Government Act 1972 is limited to instances where legal action is considered expedient for the promotion or protection of the interests of the inhabitants of the relevant authority's area. The Claimants say that it was because of the exclusion of prosecution from the enforcement and execution powers given to local authorities by regulation 3(3) of the Official Control (Animals, Feed and Food, Plant Health Fees etc) Regulations 2019 (“the 2019 OC Regulations”).

51. Regulation 41 lays down the time limit for prosecutions under the Regulations.

52. I was referred to a number of the provisions of the 2017 OC Regulation. In large measure this was by way of general background, and it suffices to note the following here.

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53. Paragraphs 26 and 27 of the Preamble referred thus to the designation and resourcing of competent authorities:

54. At article 1 the relevant aspects of the subject matter and scope of the Regulation were stated thus:

55. Article 3 defined the appropriate authority and the competent authority in these terms:

56. Article 4 addressed the designation of competent authorities and provided thus at (1) and (1A).

57. The general obligations of the competent authorities and the organic control authorities were set out at article 5(1) thus:

58. Article 21(1) provided that official controls to verify compliance with the rules for animal welfare should be “performed at all relevant stages of production, processing, and distribution along the agri-food chain”.

59. The relevant terms of article 138 are set out above.

60. Article 139 addressed penalties. It provided, at paragraph 1 for the appropriate authority to lay down the rules on penalties for breaches of the regulations and, at paragraph 3, that the regulations made under the article might create offences.

Does the FSA's Competence under WATOK extend to the Prosecution of Breaches of the Regulations?

61. The Claimants contend that the effect of regulation 4 and of article 138 was that the FSA was the competent authority for the purpose of bringing prosecutions for breaches of WATOK. I do not accept that argument. In my judgement when it is properly interpreted regulation 4 is not to be seen as making the FSA the competent authority for the purpose of prosecuting breaches. Although that conclusion is reinforced by other considerations, it flows primarily from the natural meaning of regulation 4 and article 138.

62. Regulation 4(1) provided that the FSA was the competent authority for particular purposes which were set out in the regulation. Regulation 4(2) provided that “otherwise” the Secretary of State was the competent authority “for the purposes of the 15EU Regulation and these Regulations”. It follows that there is no risk of a lacuna. To the extent that the FSA is not the competent authority for the purpose of commencing a prosecution then the Secretary of State is (subject to the argument that no person or body is given power to prosecute by WATOK). It follows that if on a natural reading the competence of the FSA does not extend to commencing prosecutions there is no need to adopt a strained or unnatural reading to avoid a lacuna. Moreover, the natural reading of the two provisions is that the role given to the FSA is a limited one and that everything falling outside that limited role is a matter for the Secretary of State.

63. It is necessary to consider the particular purposes for which the FSA is made the competent authority. The effect of regulation 4(1)(c)(iii) is that in relation to the killing of animals in slaughterhouses the FSA is the competent authority for the purpose of “taking action in the event of non-compliance with [the regulations] in accordance with Article 138”. In light of that the key question is whether the bringing of a prosecution for a breach of WATOK is the taking of action “in the event of any non-compliance” which is “in accordance with Article 138”. I accept that if the first part of that provision were to be read in isolation the commencement of a prosecution could be regarded as being the taking of act in the event of non-compliance. Does the fact that the action has to be “in accordance with Article 138” restrict the scope of that? For the following reasons I have concluded that it does.

64. There are two aspects to the actions which article 138 requires to be taken when non-compliance is established. The first (subparagraph 1(a)) is the investigative role of determining the origin and extent of the non-compliance and establishing the responsibilities of the operator. The second (subparagraph 1(b)) is “taking appropriate measures to ensure that the operator concerned remedies the non-compliance and prevents further occurrences of such non-compliance”. The Claimants' case is that taking action to ensure the non-compliance is remedied and does not recur includes prosecuting for the breaches represented by the non-compliance. I do not accept that interpretation. Article 138(2) sets out a non-exhaustive list of the measures which can be taken to ensure compliance. The list does not include the bringing of a prosecution. That omission is not determinative of the question given the avowedly non-exhaustive nature of the list. It is nonetheless relevant for two reasons. The first is that the list is an indication of the kind of matters which are to be regarded as action to ensure that the non-compliance is remedied and to prevent recurrence. In that regard it is of note that the actions in the list are very different from the bringing of a prosecution. Instead, their primary focus is on controlling the future conduct of the operator. The second reason is that if prosecuting the operator had been regarded as a way of ensuring the non-compliance is remedied or of preventing recurrence one would have expected it to be included expressly in the list of measures to be taken.

65. The Claimants say that as a matter of the natural reading of the words prosecution can be seen as a measure to remedy non-compliance and to prevent recurrence. It is right to note that some support for the Claimants' approach comes from the fact that article 138(1) requires account to be taken of the nature of the non-compliance and of the operator's past record when the competent authority is deciding on the action to take. It can be said that those are the kind of matters which can be regarded as relevant to a decision to prosecute. That, however, is a point of very limited weight and the natural reading of the article is to the contrary effect and such that taking measures to remedy non-compliance does not include bringing a prosecution for breach of WATOK. The 16short point is that a prosecution does not ensure that a non-compliance is remedied. It can lead to a finding of guilt and to punishment for a past non-compliance but it does not remedy the non-compliance and so cannot be seen as a measure to remedy non-compliance. The backward-looking nature of a prosecution (determining what happened and imposing punishment for that past conduct) is to be contrasted with the forward-looking nature of the measures listed in article 138(2). Those all relate to future actions and are in most cases aimed at the future conduct of the particular operator or particular slaughterhouse.

66. Similarly, a prosecution does not prevent a further occurrence of the non-compliance. The Claimants contended that the deterrent effect of a prosecution and potential punishment was a way of preventing the further occurrence of non-compliances. That is a strained interpretation of the reference to the prevention of future non-compliances and, again, prosecution is to be contrasted with the kind of measures listed in article 138(2) which are concerned with the direct control of the future actions of the operator. Moreover, the postulated deterrent effect comes primarily from the punishment imposed by the court in due course and not from the fact of a prosecution. Neither a prosecution nor any consequent punishment are actions which remedy non-compliance or which prevent further occurrence. Instead, they are actions addressing past non-compliance. The action of an operator in remedying a non-compliance or in taking steps to prevent further occurrences may well be relevant to the sanction imposed but is immaterial to the question of whether there was a past non-compliance. It is establishing the guilt in respect of that past act or omission which is the purpose of a prosecution. That is different from the focus of article 138 on action to be taken against operators to remedy and prevent non-compliance.

67. The conclusion I have reached on the proper interpretation of article 138(1) is reinforced by sub-paragraphs (3) and (4) of that article. Article 138(3) is concerned with the giving of notice to the operator concerned and envisages a right of appeal. That is not necessarily incompatible with the action concerned being the initiation of a prosecution but is indicative that the article is not addressing prosecutions. Similarly, article 138(4) requires the operator to bear the cost of actions taken under the article. That also is not necessarily incompatible with a prosecution but it is an indication that the article is not concerned with prosecution.

68. There are a number of other factors which support the conclusion reached by reference to the language of regulation 4 and of article 138.

69. The first is that it is well-established that in general the competence of the European Union did not extend to matters of criminal law. Those were matters within the competence of the member states: see per Lord Burrows in R(Highbury Poultry Farm Produce Ltd) v Telford Magistrates' Court [2020] UKSC 39, [2020] 1 WLR 4309 at [14]. The distinction is illustrated in this case by the contrast between articles 138 and 139. The former imposes an obligation as to the taking of measures and says that the competent authority “shall take” particular action. Article 139, conversely, when addressing penalties confers a discretion, saying that the appropriate authority (defined by article 3(2A) as the Secretary of State) “may” lay down rules on penalties and that the regulations under the article “may” create offences. This is a potent indication that action under article 138 was not concerned with prosecution.

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70. The Claimants contended that the FSA was the specialist body with expertise in the investigation of matters relating to animal welfare and in identifying the way to remedy non-compliance with animal welfare regulations. They said that it made sense for the FSA to be in charge of prosecution as well as investigation and contended that it was irrational for prosecution to be in the hands of a body, the CPS, which did not have an expertise in animal welfare. Mr Jessop said that regulation 4 and article 138 should be read in such a way as to avoid this outcome. I do not accept that analysis. It ignores the longstanding distinction between the investigation of an offence and the bringing of a prosecution once the investigation has concluded. The importance of this “well-known” distinction and of the “important principle” that underlies it was emphasized in Riley & others v DPP [2016] EWHC 2531 (Admin), [2017] 1 WLR 505 at [15] – [17] per Gross LJ. In Chesterfield Poultry Ltd v Sheffield Magistrates' Court [2020] 1 WLR 499, [2020] LLR 25 the Divisional Court was concerned with a challenge arising out of a prosecution for a breach of WATOK. The current issue was not in dispute in that case. However, it is of note that at [31] Males LJ summarized with approval the approach taken by Hickinbottom LJ in R v Woodward and Others [2017] EWHC 1008 (Admin), [2017] Crim LR 884, QBD. At [31(1) and (2)], Males LJ noted Hickinbottom LJ's explanation of the different roles of a prosecutor and of an investigator and of the different skills which were called upon in those roles. He also noted, at [31(3)], the “well-established distinction between an investigator and a prosecutor” doing so by express reference to the roles of the FSA and the CPS in the context of animal welfare. It follows that, far from being inappropriate or inconsistent with principle, the allocation of the responsibility for prosecuting to a different body from that responsible for investigation is wholly consistent with principle. Indeed, the position is the converse of that for which the Claimants contended: it would be possible for the FSA to be given responsibility both for investigating and prosecuting breaches of WATOK but an interpretation which led to that conclusion would be inconsistent with the general separation between prosecution and investigation and so would call for careful review.

71. The Claimants pointed out that the preamble to article 138 attached importance to the identification of the competent authority and of the role to be performed by it. By way of example of this I was referred to paragraphs 15, 26, and 27 of the preamble. It is true that the preamble does attach importance to the role of the competent authority but this does not assist with the interpretation of regulation 4 of WATOK and still less with the issue of whether the FSA is the competent authority for the purpose of commencing prosecutions. This is because regulation 4 ensures that there is a competent authority for all functions. It identifies the FSA as the competent authority for particular purposes but says that “otherwise” the Secretary of State is the competent authority. The need for a competent authority does not assist in identifying where the division between the FSA and the Secretary of State lies.

72. The Claimants also relied on the fact that article 138 is in the chapter of the 2017 OC Regulation dealing with enforcement. The contention was that prosecution is an aspect of enforcement and that, accordingly, article 138 is to be interpreted as including the bringing of a prosecution in the “appropriate measures”. In my judgement the fact that article 138 is in the enforcement chapter provides no real assistance in interpreting that article. This is all the more so given the principle which I noted above of the European Union's limited competence in respect of criminal matters and the terms of article 139 where the creation of offences and the imposition of penalties are dealt with separately from actions to remedy non-compliance which are the subject of article 138.

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73. As an aspect of the same argument the Claimants referred me to regulation 11(1) of the 2019 OC Regulations. They accepted that this did not relate to WATOK. The point, however, was that the regulation was entitled “enforcement and prosecution” and then treated the bringing of a prosecution as an aspect of enforcement. It is right that bringing a prosecution for a breach of a regulation is an aspect of enforcing the regulation but that provides no real assistance in deciding whether on a proper interpretation of WATOK those regulations identified the FSA as the competent authority for the purpose of bringing prosecutions.

74. For the Claimants Mr Jessop placed considerable emphasis on regulation 3 of the 2019 OC Regulations. Referring to the FSA this provided that:

75. The reference there to article 4 is a reference to article 4 of the 2017 OC Regulation. Mr Jessop contended that the importance of the 2019 OC Regulations “cannot be overstated”. The Claimants' argument was that the 2019 OC Regulations brought about a sea change. It was said that as a result of those regulations control over the entirety of the responsibility for animal welfare in slaughterhouses passed to the FSA and that the Secretary of State was left with only a policy responsibility. It was said that this meant that from the time the 2019 OC Regulations came into force the provision in regulation 4(2) of WATOK that “otherwise the Secretary of State is the competent authority” was to be read as a reference to the Secretary of State's competence in areas other than slaughterhouses.

76. I do not accept that argument. Ultimately, the argument fails when account is taken of the terms of regulations 3(1) and 3(2) of the 2019 OC Regulations. The former subparagraph expressly provides that the designation of the FSA as the competent authority for the purposes of article 4 is “to the extent” of the FSA's designation as the competent authority in regulation 4 of WATOK. The latter provides that “in every other case” the Secretary of State is the competent authority. It is the effect of the designation in regulation 4 of WATOK which is in issue before me and resolution of that issue cannot be assisted by reference to a designation which is itself expressly limited to the extent of the regulation 4 designation. The designation in the 2019 OC Regulations is dependent on the designation in regulation 4 of WATOK and if the latter does not give the FSA competence to prosecute for breaches of WATOK then the designation in the former cannot take matters forward. The scope of the FSA's competence for the purpose of regulation 4 of WATOK is to be determined by the interpretation of that regulation which, in turn, depends on what is meant by “taking action … in accordance with Article 138”. Reference to a subsequent provision in which the designation of the FSA 19expressly takes effect only to the extent of the designation in regulation 4(1) of WATOK simply cannot assist in that exercise.

77. By schedule 5 of the Official Feed and Food Control (England) Regulations 2009 the FSA was made the competent authority for sundry articles of the 2017 OC Regulation. The Claimants placed particular emphasis on the fact that the FSA was thereby made the competent authority for the purposes of articles 18 and 21. They said that this was to be seen as an indication that the FSA was being given control over all aspects of animal welfare in slaughterhouses. I do not accept that. It is true that the articles are of importance and potentially of wide ambit but it simply does not follow that the fact that the FSA was made the competent authority for the purpose of those articles changed the position as to the extent to which it was the competent authority for the purposes of WATOK.

78. By section 1 of the Animals (Penalty Notices) Act 2022 the Secretary of State may by regulations specify an enforcement authority with power to issue penalty notices for offences under the Animal Welfare Act 2006 or under regulations made under that Act. By paragraph 14(1) of Schedule 1 of the Animals (Penalty Notices)(England) Regulations 2023 local authorities, the Secretary of State, and the FSA were all designated as enforcement authorities for the purposes of offences under regulation 30 of WATOK. In relying on these provisions, the Claimants were right to say that the power to issue penalty notices is akin to a power to commence a prosecution. An enforcement authority can only issue such a notice when it is satisfied beyond reasonable doubt that the person on whom the notice is to be served has committed the offence. In addition, the Statutory Guidance on the Use of Penalty Notices for Animal Health and Welfare Offences explains that the issuing of a penalty notice is to be used as an alternative to prosecution. It follows that the FSA has the power to assess whether an offence has been committed and to issue a penalty notice which will serve as an alternative to a prosecution. That does not, however, assist with the question of whether it is empowered to commence a prosecution for a breach of WATOK. The significant point is that the power to issue a penalty notice derives from the Secretary of State's designation of the FSA as an enforcement authority for a particular purpose and under particular legislation. That cannot assist in the proper interpretation of WATOK. At its highest the argument for the Claimants is that the designation indicates that the Secretary of State regarded the FSA as being akin to a prosecuting body and that the limitation on the power of the FSA to the issuing of penalty notices might be thought unusual. Although those points have some rhetorical force they cannot prevail against the other considerations to which I have already referred and the designation of the FSA as a body having the power to serve a penalty notice cannot give a power to prosecute where none otherwise exists.

79. The Claimants pointed to the fact that in proceedings before the High Wycombe Magistrates' Court the FSA brought a prosecution against Caroline Evans for an alleged offence of obstruction of a FSA inspector contrary to regulation 31 of WATOK. Miss Evans was acquitted on the facts but the Claimants say that the fact of the prosecution having been brought shows that the FSA has power to commence a prosecution for an offence deriving from the same part of WATOK as the current alleged offences. The FSA submitted that the prosecution of Miss Evans was not commenced using a power derived from WATOK. Instead, the prosecution was brought in reliance on the FSA's power under section 21(1) of the Food Standards Act 1999 to “do anything which is 20calculated to facilitate, or is conducive or incidental to, the exercise of its functions”. Section 21(2)(d) expressly provides that the section 21(1) power includes the institution of criminal proceedings. The FSA says that the prosecution for the alleged obstruction of its inspector was incidental to its functions because it was an aspect of enabling the obstructed investigation to take place.

80. The fact of that prosecution does not advance matters. There is no indication that any point was taken as to the FSA's power to bring the prosecution. Still less was there a reasoned decision addressing the issue (let alone one having even persuasive force in relation to the matters before me). Moreover, the FSA did not purport to derive the power to prosecute from WATOK. I do not need to come to a conclusion as to whether the FSA is right to say that its powers under section 21 of the 1999 extend to bringing a prosecution for a breach of regulation 31 of WATOK although there does appear to be force in that contention. Even assuming that the FSA has such a power, account is to be taken of the difference between investigation and prosecution, to which I have referred above. The fact that there can be a prosecution to ensure that an investigation is not obstructed does not necessarily mean that there is a power to bring a prosecution for the offences disclosed by such an investigation. It is, moreover, to be remembered that the question with which I am concerned is whether the FSA's designation as the competent authority for particular purposes in regulation 4 of WATOK gives it a power to prosecute for breaches of those regulations. The extent of the FSA's powers to prosecute in reliance on section 21 of the 1999 Act does not assist in that exercise of interpretation.

81. The Claimants also sought to rely on the approach taken by Upper Tribunal Judge West in Food Standards Agency v Euro Quality Lambs Ltd [2022] UTUK 64 (AAC). The judge addressed WATOK and the predecessor regulations to the 2017 OC Regulation with a view to determining whether the FSA was the competent authority for the purposes of appointing inspectors and Official Veterinarians under regulation 34 of WATOK. The First Tier Tribunal judge had held that the FSA was not the competent authority for these purposes. This was because she had held that the FSA's role as competent authority was limited to the activities “specifically itemised” in regulation 4 of WATOK and in the relevant EU Regulation. Judge West rejected that approach. At [69] and following he emphasized the “comprehensive but non-exhaustive” nature of the predecessor to article 138 (namely article 54 of Regulation (EC) 882/2004). The Claimants submitted that I should take a similar approach to the question of whether the FSA was the competent authority for the purpose of initiating a prosecution. I respectfully agree with Judge West that WATOK and the regulations which underpin them (now the 2017 OC Regulation) are to be read as a whole and that an unduly narrow interpretation is to be avoided. I do not, however, find that the decision takes me any further than that. Not only was Judge West concerned solely with the question of whether the FSA was the competent authority for the purpose of appointing inspectors and Official Veterinarians the provisions with which he was concerned were different from those applicable here. Both article 138 of the 2017 OC Regulation and article 54 of the 2004 regulation were in non-exhaustive terms. However, their provisions were in different terms and the latter concluded with a power for the competent authority to take “any other measures” it deemed appropriate. The decision does not assist me in determining whether the correct interpretation of the provisions with which I am concerned meant that the FSA's competence extended to the initiation of prosecutions. It is of note that, at [75], Judge West pointed out that a bifurcation of responsibility for 21enforcement between the Secretary of State and the FSA was “inherent in the terms of WATOK itself”. Judge West had to determine on which side of the bifurcation the power to appoint inspectors and Official Veterinarians fell. His conclusion on that point does not assist me in deciding on which side of the bifurcation the initiation of prosecutions falls.

82. It follows that I conclude that on a proper interpretation of regulation 4 of WATOK and of article 138 the purposes for which the FSA was the competent authority under WATOK did not include the bringing prosecutions for breaches of those regulations.

Did the Secretary of State have a Power to prosecute for breaches of WATOK?

83. Having concluded that WATOK did not constitute the FSA as the body with authority to prosecute for breaches of the regulations it is necessary to consider whether the Secretary of State had power to prosecute for such breaches. There are two related questions: did the Secretary of State have such a power, whether arising from WATOK or otherwise, and if there would otherwise have been such a power was there a prohibition on its use.

84. In considering whether WATOK gave the Secretary of State a power to prosecute it is to be remembered that the normal approach is that legislation does not specify who may bring a prosecution for an offence created by the legislation. As Lord Dyson explained in R v Rollins [2010] UKSC 39, [2010] 1 WLR 1922 at [11]:

85. Against that background I am satisfied that the better analysis is that WATOK does not give an express power to prosecute to the Secretary of State but instead creates an offence for which any person may prosecute.

86. That analysis accords with the general approach and with the absence of any express reference to a power to prosecute. Initially, I was attracted by the argument that regulation 4(2) of WATOK gave the Secretary of State a power to prosecute. The argument was that by making the Secretary of State the competent authority save to the limited extent that the FSA was made the competent authority that provision gave a power to prosecute. On reflection, I have concluded that is not the correct interpretation. That is because the Secretary of State is made the competent authority “for the purposes the EU Regulation and these Regulations”. For the reasons I have already explained the OC 2017 Regulation was not concerned with the prosecution of such offences as may be created by a member state and still less did it constitute the competent authority for the purposes of that regulation as the body with power to prosecute. Those were not matters of European Union competence. Similarly, the fact that the Secretary of State was made the competent authority for the purposes of WATOK also does not advance matters. That is because WATOK does not stipulate that the competent authority has power to prosecute. Instead, the absence of the identification of a prosecutor indicates that the normal approach as described in Rollins was being adopted. That analysis is reinforced by the fact that regulation 40 gives local authorities a discretionary power to prosecute. I am satisfied that that the Interested Parties' explanation (which I noted at [50] above) of the reason for and effect of regulation 40 is correct. That regulation was 22included because it was necessary for that reason. It is not, however, suggested that local authorities are the only bodies with power to prosecute for breaches of WATOK and the absence of other references accords with the normal approach.

87. The Secretary of State had power to initiate prosecutions for breaches of WATOK in his capacity as a corporation sole. The Secretary of State was constituted a corporation sole by article 4(1) of the Secretaries of State for Transport, Local Government and the Regions and for Environment, Food and Rural Affairs Order 2001. As a corporation sole the Secretary of State has the power to initiate a prosecution in the same way as a private individual does.

88. The Claimants contended that the Secretary of State's powers were limited in the same way as a corporation's powers are limited. They argued that the Secretary of State could only use his powers as a corporation sole for the performance of his functions as Secretary of State and in the public interest. They proceeded from that to say that the initiation of a prosecution for a breach of the provisions of WATOK was not within the scope of the Secretary of State's functions. There are flaws with each part of that analysis.

89. The first is that the position of the Secretary of State as a corporation sole is not to be equated to the position of a corporation created under the Companies Acts or by Royal Charter. Such a corporation has limited powers which are derived solely from its memorandum and articles of association or charter and/or from the Companies Acts. They do not provide an apt analogy with the powers of a minister who is constituted a corporation sole by legislation. It is right that the powers of a minister can only be used for a proper purpose. The exercise of powers for an improper purpose is potentially liable to judicial review. There would at least potentially be scope for judicial review of a prosecution which was commenced for an improper purpose but subject to that the Secretary of State has the same power as a private individual to bring a prosecution. A private individual would have a right to bring a prosecution for a breach of WATOK (as the Claimants accepted) and, subject to the question of the exclusion of the Secretary of State's powers to which I will turn below, the Secretary of State is similarly entitled to bring a prosecution.

90. Second, the bringing of a prosecution for a breach of WATOK is clearly within the proper functions of the Secretary of State. The Secretary of State is the competent authority to the extent that the FSA is not; he is the appropriate authority; and is the minister responsible to Parliament for the matters falling within the field of DEFRA's responsibility. The only basis for a finding that the bringing of a prosecution for a breach of WATOK was not a proper function of the Secretary of State would be if WATOK had constituted the FSA as the prosecuting body. However, I have already explained why that was not the position.

91. The Claimants argued that such power as the Secretary of State might otherwise have had to prosecute for breaches of WATOK had been excluded. Ultimately this argument depended on the Claimants' submission as to the effect of the 2019 OC Regulations as bringing about a wholescale change of the respective positions of the Secretary of State and the FSA. For the reasons I have already given I do not accept that analysis and for the same reasons do not accept that the Secretary of State's powers were curtailed.

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92. The artificiality of the Claimants' position becomes apparent if one stands back. The Claimants accepted that the FSA did not have an exclusive power to prosecute for breaches of WATOK and accepted that a private individual could prosecute. They say, however, that the Secretary of State has no power. There is simply no basis for such an outcome. It would, moreover, be an outcome achieved by implication and contrary to the normal approach identified by Lord Dyson in Rollins at [20] as being:

Could the Secretary of State's Power to prosecute pass to the DPP by an Assignment under the Prosecution of Offences Act 1985?

93. The Claimants' final contention was that even if the Secretary of State did have a power to prosecute that did not assist in this case because such a power cannot be assigned. In support of that argument Mr Jessop referred me to the decision of HH Judge Baumgartner in the unreported case of R (Bin Khalifa) v Alsaqabi. That concerned a private prosecution which had been brought by Wafa Bin Khalifa and which was before Judge Baumgartner in the Southwark Crown Court. Miss Bin Khalifa had died after beginning the prosecution and the issue for the Judge was whether the prosecution survived her demise. Judge Baumgartner held that the prosecution abated with the prosecutor's death and did so on the basis that the bringing of a private prosecution was not a right which was capable of being assigned or transferred either by way of an assignment between living persons or by operation of the rules governing succession to a deceased person's estate.

94. I respectfully agree with Judge Baumgartner's analysis but it does not assist in the circumstances of this case. I note that Judge Baumgartner was concerned with the position after a particular private prosecution had begun. He was addressing the question of whether the role of prosecutor in a particular case and in respect of particular charges could pass from that prosecutor. He was not concerned with the issue of whether a capacity to prosecute for a particular type of offence could be assigned. I do not, however, have to consider whether the Secretary of State could or could not have assigned the power to prosecute for breaches of WATOK by a deed of assignment to which he and the DPP were parties. That is because the Assignment here was different in character from such a transaction. The Claimants' argument is based on a failure to understand the nature and effect of the Assignment. As I have explained at [32] and [33] above, although described as an assignment the exercise by the Attorney General of his power under section 3(2)(g) of the 1985 Act is not akin to an assignment whereby one party passes rights to another. Instead, it is an allocation of functions made by the Attorney General pursuant to a statutory power to allocate functions. Provided, as I have found he was, the Secretary of State was capable of prosecuting for breaches of WATOK then that was a prosecutorial function which the Attorney General was able to allocate to the DPP pursuant to his (the Attorney General's) powers. It is immaterial whether the Secretary of State could or could not have achieved the same result by making an assignment.

The Effect of the preceding Analysis.

95. It follows that the designation of the FSA as the competent authority for particular purposes did not give it power to prosecute for breaches of WATOK. The Secretary of 24State did have a power to prosecute for such breaches. The Assignment made by the Attorney General was effective to pass the Secretary of State's power to prosecute to the DPP. Therefore, the CPS were entitled to prosecute the Claimants in reliance on the Assignment and the District Judge was correct to reject the submission to the contrary.

Was the Prosecution properly instituted even if the Secretary of State had no prosecutorial Function?

96. The alternative position of the CPS was that the prosecution was properly instituted even if the Secretary of State had no power to prosecute for breaches of WATOK and/or if the Assignment had been ineffective to pass such a power to the DPP.

97. The submission was that the Prosecution of Offences Act 1985 gave the DPP a general power to initiate prosecutions and that power could have been used here. I received detailed arguments as to the effect of the 1985 Act and as to whether even if the DPP had a general power to initiate prosecutions it had been exercised here. It is not necessary for me to address those arguments and it would not be appropriate for me to express a concluded view on an issue which is now academic. There are two reasons for that. The first is that I have concluded that the Secretary of State did have a prosecutorial function which the Assignment had passed to the DPP with the consequence that the prosecution of the Claimants had been properly initiated. The second reason is that in bringing the prosecution the CPS had not relied on any such general power but on the Assignment. When asked by those acting for the Claimants to identify the basis on which the prosecution was being brought the CPS expressly said that it was relying on the Assignment. There was no suggestion at that stage that reliance on the Assignment was unnecessary or that some other general power was also in play. In those circumstances it would not have been open to the CPS to argue before the District Judge that the prosecution was being brought on any basis other than in reliance on the Assignment. It follows that if the Judge had found the reliance on the Assignment was misplaced it would not have been open to her to find that the prosecution had been properly brought. I will explain below why neither the invocation of the 1985 Act nor of any general power could trigger a potential application of section 31(2A) of the Senior Courts Act 1981. It follows that although the proper interpretation of the 1985 Act and the ambit of the powers of the CPS are doubtless matters of interest there is no route by which a conclusion on those issues could have an impact on the outcome of the current claim.

The Applicability of Section 31(2A) of the Senior Courts Act 1981 .

98. As a fallback position Miss Ailes invoked Section 31(2A) of the Senior Courts Act 1981. It was said that relief should be refused because the outcome would not have been substantially different for the Claimants if the prosecution had not been based on the Assignment. In light of the conclusions I have reached it was not necessary for the CPS to rely on this argument. I will, however, explain briefly why that section would not have precluded relief if I had concluded that the District Judge had erred in law.

99. The submission was that instead of relying on the Assignment the CPS could have initiated a prosecution relying on its general power to prosecute. If that had happened the Claimants would have had to address a properly commenced prosecution and so would have been in the same position as they were after the District Judge's decision. As I have explained above even if the CPS did have such a power they were not able to rely on it for the purposes of the issue which the District Judge had to determine. In any 25event the existence of such a power and the fact that a prosecution could have been commenced relying on it would not bring section 31(2A) into operation. That is because the decision under challenge is that of the District Judge concluding that the prosecution had been commenced validly. The effect of section 31(8) is that the conduct complained of for the purposes of section 31(2A) and for the purpose of assessing whether the outcome for the Claimants would not have been substantially different if it had not occurred is the District Judge's decision. Not only is that the conduct to be considered but it is to be considered in light of the circumstances as they were at the time when it occurred namely that the prosecution had been commenced in reliance on the Assignment. If that conduct had not occurred and if instead the District Judge had concluded that the prosecution had not been validly commenced and had dismissed the charges, then the outcome for the Claimants would have been substantially different and section 31(2A) would not apply.

Conclusion .

100. It follows that the Secretary of State did have a power to initiate a prosecution for breaches of WATOK and the Assignment was effective to allocate that power to the CPS. The District Judge was, therefore, correct to hold that the prosecution was properly instituted. The claim is, therefore, dismissed.