Rarely has an animal received such press attention, even in the summer silly season. Perhaps it was his shiny black nose. Or his very own online petition and 24/7 webcam. Maybe it was the farcical final showdown between government officials trying to cut their way into the temple and hundreds of persistently peaceful monks played out on television and internet blogs the world over. Or the emotional rollercoaster of the stay of execution granted one day and revoked three days later.
For the lawyers among us, Shambo’s case is not just a good story, but a fascinating exploration of the interplay of religious freedoms and public health, of the limits of the proportionality principle, and of the role of courts in cases involving government health experts.
The claimant before the High Court was the Community of the Many Names of God, which runs a hospice and Hindu temple in
Shambo was a temple bullock in the Community, and played a central part in the religious life of the Community. When he tested positive to a routine skin test for bovine tuberculosis, the Welsh Assembly Government, pursuing its normal policy of slaughtering all reactors to skin tests, issued a slaughter notice. There is no legal requirement to slaughter reactors to this test, but rather a discretion under the Animal Health Act 1981 to slaughter where the Government thinks fit.
The Community asked the Government to exercise its discretion not to slaughter Shambo in the exceptional circumstances of the case, namely Shambo’s particular religious significance, and the Community’s unusual willingness to pay for antibiotic treatment and isolation as alternatives to slaughter. Indeed the Community had already isolated Shambo in his own shrine. The slaughter notice and the Government’s refusal to exercise its discretion were the decisions challenged in judicial review proceedings brought by the Community.
The Community was represented by Bindman & Co (Stephen Grosz and Saadia Kahn) and by David Anderson QC and Maya Lester at first instance. Clive Lewis QC and Joanne Clement acted for the Welsh Ministers.
The Community relied primarily on Article 9 of the European Convention on Human Rights, which provides that the freedom to manifest religious beliefs can be restricted only for certain legitimate aims (including public health) and only by means of justified and proportionate measures. The Community argued that slaughtering Shambo, a desecration of the temple in its eyes, would be a serious violation of Article 9. It argued that the Government’s decision not to exercise its discretion not to slaughter, nor even to assess the health risks of the Community’s alternatives to slaughter (which the Community’s experts had judged to be negligible and close to zero), amounted to a disproportionate violation of Article 9. The Government, in response, emphasised the seriousness of bovine tuberculosis, the expert advice they had sought from senior veterinary experts, and their general policy of slaughtering reactors.
The Community won before His Honour Judge Hickinbottom, sitting as a High Court Judge in
Three days later, again sitting in
The Court of Appeal was unanimously of the view that the Government had acted lawfully, done its job properly, taken appropriate advice, and analysed both sides of the balance adequately. The Welsh Ministers, their Lordships said, were entitled to take a tough line given the public health risks of bovine tuberculosis, and not to analyse the risks associated with the speculative alternatives. A few days later, after a 13 hour struggle to prize Shambo out of the temple where hundreds of people were holding a peaceful service for the sanctity of life, Shambo was slaughtered. His post mortem confirmed the presence of bovine tuberculosis.
The following thoughts stand out as a few of the most interesting features of the case from a lawyer’s perspective.
First, although the Community lost the appeal, the Welsh Ministers were ordered to pay the costs of both the High Court and Court of Appeal stages, so that the Community, a charity, would not have to bear the expense of an appeal brought by the Government in order to clarify the legality of its policy.
Second, both courts puzzled over the peculiarities of Human Rights Act jurisprudence. Should the decision-maker decide on the proportionality of a measure, or should the Court itself decide? The Court of Appeal (following the House of Lords in the Begum case) held the latter, and itself determined slaughter to have been a proportionate response.
This, and the fact that the burden of proving proportionality in Convention cases rests with the Government, may have interesting ramifications in technical cases involving scientific and medical evidence.
Third, the Court of Appeal reaffirmed the importance of public health, and its ability to trump almost all other rights and interests (certainly religious rights in this case).
Fourth, the judgments are interesting on the often neglected matter of the “legitimate aim”. The judge had remarked that if defined too narrowly, an aim can become self-serving, but the Court of Appeal found no fault with the ministers’ definition of its public health objective.
For scientists, vets and animal lovers, the case was also a fascinating exploration of bovine tuberculosis — and the ins and outs of biosecurity regimes (wellington boots, disinfected faeces, and all), the pros and cons of badger culls, the difficulty and development of treatment, vividly illustrated by captive bongo antelopes and a gorilla named Julia in Adelaide zoo.
Maya Lester is a barrister at Brick Court Chambers, specialising in public law, European law and competition law.