The UKSC in Highbury Poultry Farm. On mens rea and EU law.

I am a bit late with a post as a follow-up to my Tweet, below, re the Supreme Court’s judgment in Highbury Poultry Farm Produce Ltd, R (on the application of) v Crown Prosecution Service [2020] UKSC 39. Thankfully, the judgment is of more than fleeting relevance. It is also a good example of the structured approach to legal argument, its discussion in scholarship and its engagement with the parties’ legal arguments which will be missed post Brexit.

A poultry slaughterhouse was being accused of breaching Regulation 1099/2009 on the protection of animals at the time of killing – the same Regulation at stake in the CJEU Shechita proceedings.

Core issue in the case is whether the EU law at issue implies a requirement for mens rea (criminal intent) in the ability for Member States to discipline its breach. If no means rea is required, the law is one of strict liability.

At 14 Lord Burrows makes the point that the Regulation at issue left it to the Member States to determine the sanctions rolled-out by national law to ensure compliance with the Regulation. Had a Member State decided to deploy civil sanctions only, that would have been fine: criminal law enforcement was not necessary. What follows is a good summary of the authority on means of UK and EU statutory interpretation, with in the case at issue particular emphasis on the impact of recitals: at 51: an unclear recital does not override a clear article.

Conclusion after consideration of the Regulation (the only stain on the analysis being the lack of linguistic input (a fleeting reference at 32 only), given the CILFIT authority on equal authenticity)): that all animals which have been stunned must be bled by incising at least one of the carotid arteries or the vessels from which they arise, is formulated by the Regulation as an obligation of strict liability under EU law. Hence its effet utile requires that Member States that opt for enforcing it via criminal law, employ strict liability in that enforcement.

Reference to the CJEU was neither sought nor seriously contemplated.

Geert.

 

It’s true! Belgian Supreme Court confirms order for Yahoo! to hand over IP-addresses.

Jurisdiction and the internet is a topic which has featured once or twice on this blog recently (and in a  paper which I have already referred to in those earlier postings). Belgian’s Supreme Court in ordinary (the Hof van Cassatie /Cour de Cassation) employed the objective territoriality principle in a case with roots going back to 2007 (the fraudulent purchase of and subsequent failure to pay for electronic equipment from a shop in Dendermonde, Belgium), Yahoo! was requested to hand over the IP addresses associated with e-mail accounts registered to Yahoo!’s e-mail service. Yahoo! Inc, domiciled in California, refused to comply, triggering fines under criminal law. (It’s corporate slogan btw used to be ‘it’s true!’ Hence the title of the post).

Responding to Yahoo!s claims that Belgium was imposing its criminal laws extraterritorially, the Court of Appeal had held that Yahoo! is territorially present in Belgium, hereby voluntarily submitting itself to the jurisdiction of the Belgian authorities: it takes an active part in economic life in Belgium, among others by use of the domain name http://www.yahoo.be, the use of the local language(s) on that website, pop-up of advertisements based on the location of the users, and accessibility in Belgium of Belgium-focussed customer services (among others: a ‘Belgian’ Q&A, FAQ, and post box). [Notice the similarity with the Pammer /Alpenhof criteria]. The Court of Appeal had suggested that the accusations of extraterritoriality could only be accepted had there been a request for the handover of data or objects which are located in the USA, with which there is no Belgian territorial link whatsoever, and if the holder of these objects or data is not accessible in Belgium (either physically or virtually).

The Supreme Court on 1 December confirmed all of the Court of Appeal’s arguments, essentially linking them to the objective territoriality principle. Yahoo! actively directs its activities towards consumers present in Belgium.

Even though the case involves a criminal proceeding, the Court’s judgment inevitably (not necessarily justifiably) will be used as further support for the Belgian tussle with Facebook.

Geert.

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