ITEMID: 001-68224
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF STEEL AND MORRIS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 8. The applicants, Helen Steel and David Morris, were born in 1965 and 1954 respectively and live in London.
9. During the period with which this application is concerned, Ms Steel was at times employed as a part-time bar worker, earning approximately 65 pounds sterling (GBP) per week, and was at other times unwaged and dependent on income support. Mr Morris, a former postal worker, was unwaged and in receipt of income support. He was a single parent, responsible for the day-to-day care of his son, aged 4 when the trial began. At all material times the applicants were associated with London Greenpeace, a small group, unconnected to Greenpeace International, which campaigned principally on environmental and social issues.
10. In the mid-1980s London Greenpeace began an anti-McDonald's campaign. In 1986 a six-page leaflet entitled “What's wrong with McDonald's?” (“the leaflet”) was produced and distributed as part of that campaign. It was last reprinted in early 1987.
11. The first page of the leaflet showed a grotesque cartoon image of a man, wearing a Stetson and with dollar signs in his eyes, hiding behind a “Ronald McDonald” clown mask. Running along the top of pages 2 to 5 was a header comprised of the McDonald's “golden arches” symbol, with the words “McDollars, McGreedy, McCancer, McMurder, McDisease ...” and so forth superimposed on it.
12. The text of page 2 of the leaflet read as follows (extract):
“What's the connection between McDonald's and starvation in the 'Third World'?
THERE's no point feeling guilty about eating while watching starving African children on TV. If you do send money to Band Aid, or shop at Oxfam, etc., that's morally good but politically useless. It shifts the blame from governments and does nothing to challenge the power of multinational corporations.
HUNGRY FOR DOLLARS
McDonald's is one of several giant corporations with investments in vast tracts of land in poor countries, sold to them by the dollar-hungry rulers (often military) and privileged elites, evicting the small farmers that live there growing food for their own people.
The power of the US dollar means that in order to buy technology and manufactured goods, poor countries are trapped into producing more and more food for export to the States. Out of 40 of the world's poorest countries, 36 export food to the USA – the wealthiest.
ECONOMIC IMPERIALISM
Some 'Third World' countries, where most children are undernourished, are actually exporting their staple crops as animal feed – i.e. to fatten cattle for turning into burgers in the 'First World'. Millions of acres of the best farmland in poor countries are being used for our benefit – for tea, coffee, tobacco, etc. – while people there are starving. McDonald's is directly involved in this economic imperialism, which keeps most black people poor and hungry while many whites grow fat.
GROSS MISUSE OF RESOURCES
GRAIN is fed to cattle in South American countries to produce the meat in McDonald's hamburgers. Cattle consume 10 times the amount of grain and soy that humans do: one calorie of beef demands ten calories of grain. Of the 145 million tons of grain and soy fed to livestock, only 21 million tons of meat and by-products are used. The waste is 124 million tons a year at a value of 20 billion US dollars. It has been calculated that this sum would feed, clothe and house the world's entire population for one year.”
The first page of the leaflet also included a photograph of a woman and child, with the caption:
“A typical image of 'Third World' poverty – the kind often used by charities to get 'compassion money'. This diverts attention from one cause: exploitation by multinationals like McDonald's.”
The second and third pages of the leaflet contained a cartoon image of a burger, with a cow's head sticking out of one side and saying “If the slaughterhouse doesn't get you” and a man's head sticking out of the other, saying “the junk food will!” Pages 3 to 5 read as follows:
“FIFTY ACRES EVERY MINUTE
EVERY year an area of rainforest the size of Britain is cut down or defoliated, and burnt. Globally, one billion people depend on water flowing from these forests, which soak up rain and release it gradually. The disaster in Ethiopia and Sudan is at least partly due to uncontrolled deforestation. In Amazonia – where there are now about 100,000 beef ranches – torrential rains sweep down through the treeless valleys, eroding the land and washing away the soil. The bare earth, baked by the tropical sun, becomes useless for agriculture. It has been estimated that this destruction causes at least one species of animal, plant or insect to become extinct every few hours.
Why is it wrong for McDonald's to destroy rainforests?
AROUND the Equator there is a lush green belt of incredibly beautiful tropical forest, untouched by human development for one hundred million years, supporting about half of the Earth's life-forms, including some 30,000 plant species, and producing a major part of the planet's crucial supply of oxygen.
PET FOOD AND LITTER
McDonald's and Burger King are two of the many US corporations using lethal poisons to destroy vast areas of Central American rainforest to create grazing pastures for cattle to be sent back to the States as burgers and pet food, and to provide fast-food packaging materials. (Don't be fooled by McDonald's saying they use recycled paper: only a tiny per cent of it is. The truth is it takes 800 square miles of forest just to keep them supplied with paper for one year. Tons of this end up littering the cities of 'developed' countries.)
COLONIAL INVASION
Not only are McDonald's and many other corporations contributing to a major ecological catastrophe, they are forcing the tribal peoples in the rainforests off their ancestral territories where they have lived peacefully, without damaging their environment, for thousands of years. This is a typical example of the arrogance and viciousness of multinational companies in their endless search for more and more profit.
It's no exaggeration to say that when you bite into a Big Mac, you're helping McDonald's empire to wreck this planet.
What's so unhealthy about McDonald's food?
McDONALD's try to show in their 'Nutrition Guide' (which is full of impressive-looking but really quite irrelevant facts and figures) that mass-produced hamburgers, chips, colas and milkshakes, etc., are a useful and nutritious part of any diet.
What they don't make clear is that a diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals – which describes an average McDonald's meal – is linked with cancers of the breast and bowel, and heart disease. This is accepted medical fact, not a cranky theory. Every year in Britain, heart disease alone causes about 18,000 deaths.
FAST = JUNK
Even if they like eating them, most people recognise that processed burgers and synthetic chips, served up in paper and plastic containers, is junk-food. McDonald's prefer the name 'fast-food'. This is not just because it is manufactured and served up as quickly a possible – it has to be eaten quickly too. It's a sign of the junk-quality of Big Macs that people actually hold competitions to see who can eat one in the shortest time.
PAYING FOR THE HABIT
Chewing is essential for good health, as it promotes the flow of digestive juices which break down the food and send nutrients into the blood. McDonald's food is so lacking in bulk it is hardly possible to chew it. Even their own figures show that a 'quarter-pounder' is 48% water. This sort of fake food encourages over-eating, and the high sugar and sodium content can make people develop a kind of addiction – a 'craving'. That means more profit for McDonald's, but constipation, clogged arteries and heart attacks for many customers.
GETTING THE CHEMISTRY RIGHT
McDONALD's stripy staff uniforms, flashy lighting, bright plastic décor, 'Happy Hats' and muzak, are all part of the gimmicky dressing-up of low-quality food which has been designed down to the last detail to look and feel and taste exactly the same in any outlet anywhere in the world. To achieve this artificial conformity, McDonald's require that their 'fresh lettuce leaf', for example, is treated with twelve different chemicals just to keep it the right colour at the right crispness for the right length of time. It might as well be a bit of plastic.
How do McDonald's deliberately exploit children?
NEARLY all McDonald's advertising is aimed at children. Although the Ronald McDonald 'personality' is not as popular as their market researchers expected (probably because it is totally unoriginal), thousands of young children now think of burgers and chips every time they see a clown with orange hair.
THE NORMALITY TRAP
No parent needs to be told how difficult it is to distract a child from insisting on a certain type of food or treat. Advertisements portraying McDonald's as a happy, circus-like place where burgers and chips are provided for everybody at any hour of the day (and late at night), traps children into thinking they aren't 'normal' if they don't go there too. Appetite, necessity and – above all – money, never enter into the 'innocent' world of Ronald McDonald.
Few children are slow to spot the gaudy red and yellow standardised frontages in shopping centres and high streets throughout the country. McDonald's know exactly what kind of pressure this puts on people looking after children. It's hard not to give in to this 'convenient' way of keeping children 'happy', even if you haven't got much money and you try to avoid junk-food.
TOY FOOD
As if to compensate for the inadequacy of their products, McDonald's promote the consumption of meals as a 'fun event'. This turns the act of eating into a performance, with the 'glamour' of being in a McDonald's ('Just like it is in the ads!') reducing the food itself to the status of a prop.
Not a lot of children are interested in nutrition, and even if they were, all the gimmicks and routines with paper hats and straws and balloons hide the fact that the food they're seduced into eating is at best mediocre, at worst poisonous – and their parents know it's not even cheap.
RONALD'S DIRTY SECRET
ONCE told the grim story about how hamburgers are made, children are far less ready to join in Ronald McDonald's perverse antics. With the right prompting, a child's imagination can easily turn a clown into a bogeyman (a lot of children are very suspicious of clowns anyway). Children love a secret, and Ronald's is especially disgusting.
In what way are McDonald's responsible for torture and murder?
THE menu at McDonald's is based on meat. They sell millions of burgers every day in 35 countries throughout the world. This means the constant slaughter, day by day, of animals born and bred solely to be turned into McDonald's products.
Some of them – especially chickens and pigs – spend their lives in the entirely artificial conditions of huge factory farms, with no access to air or sunshine and no freedom of movement. Their deaths are bloody and barbaric.
MURDERING A BIG MAC
In the slaughterhouse, animals often struggle to escape. Cattle become frantic as they watch the animal before them in the killing-line being prodded, beaten, electrocuted and knifed.
A recent British government report criticised inefficient stunning methods which frequently result in animals having their throats cut while still fully conscious. McDonald's are responsible for the deaths of countless animals by this supposedly humane method.
We have the choice to eat meat or not. The 450 million animals killed for food in Britain every year have no choice at all. It is often said that after visiting an abattoir, people become nauseous at the thought of eating flesh. How many of us would be prepared to work in a slaughterhouse and kill the animals we eat?
WHAT'S YOUR POISON?
MEAT is responsible for 70% of all food-poisoning incidents, with chicken and minced meat (as used in burgers) being the worst offenders. When animals are slaughtered, meat can be contaminated with gut contents, faeces and urine, leading to bacterial infection. In an attempt to counteract infection in their animals, farmers routinely inject them with doses of antibiotics. These, in addition to growth-promoting hormone drugs and pesticide residues in their feed, build up in the animals' tissues and can further damage the health of people on a meat-based diet.
What's it like working for McDonald's?
THERE must be a serious problem: even though 80% of McDonald's workers are part-time, the annual staff turnover is 60% (in the USA it's 300%). It's not unusual for their restaurant workers to quit after just four or five weeks. The reasons are not hard to find.
NO UNIONS ALLOWED
Workers in catering do badly in terms of pay and conditions. They are at work in the evenings and at weekends, doing long shifts in hot, smelly, noisy environments. Wages are low and chances of promotion minimal.
To improve this through Trade Union negotiation is very difficult: there is no union specifically for these workers, and the ones they could join show little interest in the problems of part-timers (mostly women). A recent survey of workers in burger-restaurants found that 80% said they needed union help over pay and conditions. Another difficulty is that the 'kitchen trade' has a high proportion of workers from ethnic minority groups who, with little chance of getting work elsewhere, are wary of being sacked – as many have been – for attempting union organisation.
McDonald's have a policy of preventing unionisation by getting rid of pro-union workers. So far this has succeeded everywhere in the world except Sweden, and in Dublin after a long struggle.
TRAINED TO SWEAT
It's obvious that all large chain-stores and junk-food giants depend for their fat profits on the labour of young people. McDonald's is no exception: three-quarters of its workers are under 21. The production-line system deskills the work itself: anybody can grill a hamburger, and cleaning toilets or smiling at customers needs no training. So there is no need to employ chefs or qualified staff – just anybody prepared to work for low wages.
As there is no legally-enforced minimum wage in Britain, McDonald's can pay what they like, helping to depress wage levels in the catering trade still further. They say they are providing jobs for school-leavers and take them on regardless of sex or race. The truth is McDonald's are only interested in recruiting cheap labour – which always means that disadvantaged groups, women and black people especially, are even more exploited by industry than they are already.”
The leaflet continued, on pages 5 and 6, with a number of proposals and suggestions for change, campaigning and activity, and information about London Greenpeace.
13. Because London Greenpeace was not an incorporated body, no legal action could be taken directly against it. Between October 1989 and January or May 1991, UK McDonald's hired seven private investigators from two different firms to infiltrate the group with the aim of finding out who was responsible for writing, printing and distributing the leaflet and organising the anti-McDonald's campaign. The inquiry agents attended over forty meetings of London Greenpeace, which were open to any member of the public who wished to attend, and other events such as “fayres” and public, fund-raising occasions. McDonald's subsequently relied on the evidence of some of these agents at trial to establish that the applicants had attended meetings and events and been closely involved with the organisation during the period when the leaflet was being produced and distributed.
14. On 20 September 1990 McDonald's Corporation (“US McDonald's”) and McDonald's Restaurants Limited (“UK McDonald's”), together referred to herein as “McDonald's”, issued a writ against the applicants and three others, claiming damages of up to GBP 100,000 for libel caused by the alleged publication by the defendants of the leaflet. McDonald's withdrew proceedings against the three other defendants, in exchange for their apology for the contents of the leaflet.
15. The applicants denied publication, denied that the words complained of had the meanings attributed to them by McDonald's and denied that all or some of the meanings were capable of being defamatory. Further, they contended, in the alternative, that the words were substantially true or else were fair comment on matters of fact.
16. The applicants applied for legal aid but were refused it on 3 June 1992, because legal aid was not available for defamation proceedings in the United Kingdom. They therefore represented themselves throughout the trial and appeal. Approximately GBP 40,000 was raised by donation to assist them (for example, to pay for transcripts: see paragraph 20 below), and they received some help from barristers and solicitors acting pro bono: thus, their initial pleadings were drafted by lawyers, they were given some advice on an ad hoc basis, and they were represented during five of the pre-trial hearings and on three occasions during the trial, including the appeal to the Court of Appeal against the trial judge's grant of leave to McDonald's to amend the statement of claim (see paragraph 24 below). They submitted, however, that they were severely hampered by lack of resources, not just in the way of legal advice and representation, but also when it came to administration, photocopying, note-taking, and the tracing, preparation and payment of the costs and expenses of expert and factual witnesses. Throughout the proceedings McDonald's were represented by leading and junior counsel, experienced in defamation law, and by one or two solicitors and other assistants.
17. In March 1994 UK McDonald's produced a press release and leaflet for distribution to their customers about the case, entitled “Why McDonald's is going to Court”. In May 1994 they produced a document called “Libel Action – Background Briefing” for distribution to the media and others. These documents included, inter alia, the allegation that the applicants had published a leaflet which they knew to be untrue, and the applicants counter-claimed for damages for libel from UK McDonald's.
18. Before the start of the trial there were approximately twenty-eight interim applications, involving various issues of law and fact, some lasting as long as five days. For example, on 21 December 1993 the trial judge, Mr Justice Bell (“Bell J”), ruled that the action should be tried by a judge alone rather than a judge and jury, because it would involve the prolonged examination of documents and expert witnesses on complicated scientific matters. This ruling was upheld by the Court of Appeal on 25 March 1994, after a hearing at which the applicants were represented pro bono.
19. The trial took place before Bell J between 28 June 1994 and 13 December 1996. It lasted for 313 court days, of which 40 were taken up with legal argument, and was the longest trial (either civil or criminal) in English legal history. Transcripts of the trial ran to approximately 20,000 pages; there were about 40,000 pages of documentary evidence; and, in addition to many written witness statements, 130 witnesses gave oral evidence – 59 for the applicants, 71 for McDonald's. Ms Steel gave evidence in person but Mr Morris chose not to.
20. The applicants were unable to pay for daily transcripts of the proceedings, which cost approximately GBP 750 per day, or GBP 375 if split between the two parties. McDonald's paid the fee, and initially provided the applicants with free copies of the transcripts. However, McDonald's stopped doing this on 3 July 1995, because the applicants refused to undertake to use the transcripts only for the purposes of the trial, and not to publicise what had been said in court. The trial judge refused to order McDonald's to supply the transcripts in the absence of the applicants' undertaking, and this ruling was upheld by the Court of Appeal. Thereafter, the applicants, using donations from the public, purchased transcripts at reduced cost (GBP 25 per day), twenty-one days after the evidence had been given. They submit that, as a result, and without sufficient helpers to take notes in court, they were severely hampered in their ability to examine and cross-examine witnesses effectively.
21. During the trial, Mr Morris faced an unconnected action brought against him by the London Borough of Haringey relating to possession of a property. Mr Morris signed an affidavit (“the Haringey affidavit”) in support of his application to have those proceedings stayed until the libel trial was over, in which he stated that the libel action had arisen “from leaflets we had produced concerning, inter alia, nutrition of McDonald's food ...”. McDonald's applied for this affidavit to be adduced as evidence in the libel trial as an admission against interest on publication by Mr Morris, and Bell J agreed to this request. Mr Morris objected that the affidavit should have read “allegedly produced” but that there had been a mistake on the part of his solicitor. The solicitor confirmed in writing to the court that the second applicant had instructed her to correct the affidavit, but that she had not done so because the error had not been material to the Haringey proceedings. The applicants submitted that they assumed that the solicitor's letter would be admitted in evidence, and that Bell J did not warn them that it was inadmissible until the closure of evidence, so that they did not realise they needed to adduce further evidence to explain the mistake. The applicants' appeal to the Court of Appeal against Bell J's admission of the affidavit was refused on 25 March 1996.
22. On 20 November 1995, Bell J ruled on the meaning of the paragraph in the leaflet entitled “What's so unhealthy about McDonald's food?”, finding that this part of the leaflet bore the meaning
“... that McDonald's food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real risk that you will suffer cancer of the breast or bowel or heart disease as a result; that McDonald's know this but they do not make it clear; that they still sell the food, and they deceive customers by claiming that their food is a useful and nutritious part of any diet”.
23. The applicants appealed to the Court of Appeal against this ruling, initially relying on seven grounds of appeal. However, the day before the hearing on 2 April 1996 before the Court of Appeal, Ms Steel gave notice on behalf of both applicants that they were withdrawing six of the seven grounds, and now wished solely to raise the issue whether the trial judge had been wrong in determining a meaning which was more serious than that pleaded by McDonald's in their statement of claim. The applicants submitted that they withdrew the other grounds of appeal relating to the meaning of this part of the leaflet because lack of time and legal advice prevented them from fully pursuing them. They mistakenly believed that it would remain open to them to raise these matters again at a full appeal after the conclusion of the trial. The Court of Appeal decided against the applicants on the remaining single ground, holding that the meaning given to this paragraph by the judge was less severe than that pleaded by McDonald's.
24. In the light of the Haringey affidavit, McDonald's sought permission from the court to amend their statement of claim to allege that the applicants had been involved in the production of the leaflet and to allege publication dating back to September 1987. The applicants objected that such an amendment so late in the trial would be unduly prejudicial. However, on 26 April 1996 Bell J gave permission to McDonald's for the amendments; the applicants were allowed to amend their defence accordingly.
25. Before the trial, the applicants had sought an order that McDonald's disclose the notes made by their enquiry agents; McDonald's had responded that there were no notes. During the course of the trial, however, it emerged that the notes did exist. The applicants applied for disclosure, which was opposed by McDonald's on the ground that the notes were protected by legal professional privilege. On 17 June 1996 Bell J ruled that the notes should be disclosed, but with those parts which did not relate to matters contained in the witness statements or oral evidence of the enquiry agents deleted.
26. When all the evidence had been adduced, Bell J deliberated for six months before delivering his substantive 762-page judgment on 19 June 1997.
On the basis, principally, of the Haringey affidavit and the evidence of McDonald's enquiry agents, he found that the second applicant had participated in the production of the leaflet in 1986, at the start of London Greenpeace's anti-McDonald's campaign, although the precise part he played could not be identified. Mr Morris had also taken part in the leaflet's distribution. Having assessed the evidence of a number of witnesses, including Ms Steel herself, he found that her involvement had begun in early 1988 and took the form of participation in London Greenpeace's activities, sharing its anti-McDonald's aims, including distribution of the leaflet. The judge found that the applicants were responsible for the publication of “several thousand” copies of the leaflet. It was not found that this publication had any impact on the sale of McDonald's products. He also found that the London Greenpeace leaflet had been reprinted word for word in a leaflet produced in 1987 and 1988 by an organisation based in Nottingham called Veggies Ltd. McDonald's had threatened libel proceedings against Veggies Ltd, but had agreed a settlement after Veggies rewrote the section in the leaflet about the destruction of the rainforest and changed the heading “In what way are McDonald's responsible for torture and murder?” to read “In what way are McDonald's responsible for the slaughtering and butchering of animals?”.
27. Bell J summarised his findings as to the truth or otherwise of the allegations in the leaflet as follows:
“In summary, comparing my findings with the defamatory messages in the leaflet, of which the Plaintiffs actually complained, it was and is untrue to say that either Plaintiff has been to blame for starvation in the Third World. It was and is untrue to say that they have bought vast tracts of land or any farming land in the Third World, or that they have caused the eviction of small farmers or anyone else from their land.
It was and is untrue to say that either Plaintiff has been guilty of destruction of rainforest, thereby causing wanton damage to the environment.
It was and is untrue to say that either of the Plaintiffs have used lethal poisons to destroy vast areas or any areas of Central American rainforest, or that they have forced tribal people in the rainforest off their ancestral territories.
It was and is untrue to say that either Plaintiff has lied when it has claimed to have used recycled paper.
The charge that McDonald's food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it more than just occasionally may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real, that is to say serious or substantial risk that you will suffer cancer of the breast or bowel or heart disease as a result, and that McDonald's know this but they do not make it clear, is untrue. However, various of the First and Second Plaintiffs' advertisements, promotions and booklets have pretended to a positive nutritional benefit which McDonald's food, high in fat and saturated fat and animal products and sodium, and at one time low in fibre, did not match.
It was true to say that the Plaintiffs exploit children by using them as more susceptible subjects of advertising, to pressurise their parents into going into McDonald's. Although it was true to say that they use gimmicks and promote the consumption of meals at McDonald's as a fun event, it was not true to say that they use the gimmicks to cover up the true quality of their food or that they promote them as a fun event when they know that the contents of their meals could poison the children who eat them.
Although some of the particular allegations made about the rearing and slaughter of animals are not true, it was true to say, overall, that the Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food.
It was and is untrue that the Plaintiffs sell meat products which, as they must know, expose their customers to a serious risk of food poisoning.
The charge that the Plaintiffs provide bad working conditions has not been justified, although some of the Plaintiffs' working conditions are unsatisfactory. The charge that the Plaintiffs are only interested in recruiting cheap labour and that they exploit disadvantaged groups, women and black people especially as a result, has not been justified. It was true to say that the Second Plaintiff [UK McDonald's] pays its workers low wages and thereby helps to depress wages for workers in the catering trade in Britain, but it has not been proved that the First Plaintiff [US McDonald's] pays its workers low wages. The overall sting of low wages for bad working conditions has not been justified.
It was and is untrue that the Plaintiffs have a policy of preventing unionisation by getting rid of pro-union workers.”
28. As regards the applicants' counter-claim, Bell J found that McDonald's allegation that the applicants had lied in the leaflet had been unjustified, although they had been justified in alleging that the applicants had wrongly sought to deny responsibility for it. He held that the unjustified remarks had not been motivated by malice, but had been made in a situation of qualified privilege because McDonald's had been responding to vigorous attacks made on them in the leaflet, and he therefore entered judgment for McDonald's on the counter-claim also.
29. The judge awarded US McDonald's GBP 30,000 damages and UK McDonald's a further GBP 30,000. Mr Morris was severally liable for the whole GBP 60,000, and Mr Morris and Ms Steel were to be jointly and severally liable for a total of GBP 55,000 (GBP 27,500 in respect of each plaintiff). McDonald's did not ask for an order that the applicants pay their costs.
30. The applicants appealed to the Court of Appeal on 3 September 1997. The hearing (before Lord Justices Pill and May and Mr Justice Keene) began on 12 January 1999 and lasted 23 days, and on 31 March 1999 the court delivered its 301-page judgment.
31. The applicants challenged a number of Bell J's decisions on general grounds of law, and contended as follows:
“(a) [McDonald's] had no right to maintain an action for defamation because:
– [US McDonald's] is a 'multinational' and [US and UK McDonald's] are each a public corporation which has (or should have) no right at common law to bring an action for defamation on the public policy ground that in a free and democratic society such corporations must always be open to unfettered scrutiny and criticism, particularly on issues of public interest;
– the right of corporations such as [McDonald's] to maintain an action for defamation is not 'clear and certain' as the judge held ... The law is on the contrary uncertain, developing or incomplete ... Accordingly the judge should have considered and applied Article 10 of the European Convention on Human Rights ...
(b) The judge was wrong to hold that [McDonald's] need [not] prove any particular financial loss or special damage provided that damage to its good will was likely.
(c) The judge should have held that the burden was on [McDonald's] to prove that the matters complained of by them were false.
(d) The judge was wrong to hold that, to establish a defence of justification, the [applicants] had to prove that the defamatory statements were true. The rule should be disapplied in the light of Article 10 of the ECHR.
(e) It should be a defence in English law to defamation proceedings that the defendant reasonably believed that the words complained of were true.
(f) There should be a defence in English law of qualified privilege for a publication concerning issues of public importance and interest relating to public corporations such as [McDonald's].
(g) The judge should have held that the publication of the leaflet was on occasions of qualified privilege because it was a reasonable and legitimate response to an actual or perceived attack on the rights of others, in particular vulnerable sections of society who generally lack the means to defend themselves adequately (e.g. children, young workers, animals and the environment) which the [applicants] had a duty to make and the public an interest to hear.”
32. The Court of Appeal rejected these submissions.
On point (a), it held that commercial corporations had a clear right under English law to sue for defamation, and that there was no principled basis upon which a line might be drawn between strong corporations which should, according to the applicants, be deprived of this right, and weaker corporations which might require protection from unjustified criticism.
In dismissing ground (b), it held that, as with an individual plaintiff, there was no obligation on a company to show that it had suffered actual damage, since damage to a trading reputation might be as difficult to prove as damage to the reputation of an individual, and might not necessarily cause immediate or quantifiable loss. A corporate plaintiff which showed that it had a reputation within the jurisdiction and that the defamatory publication was apt to damage its goodwill thus had a complete cause of action capable of leading to a substantial award of damages.
On grounds (c) and (d), the applicants' submissions were contrary to clearly established English law, which stated that a publication shown by a plaintiff to be defamatory was presumed to be false until proved otherwise, and that it was for the defendants to prove the truth of statements presented as assertions of fact. Moreover, the court found some general force in McDonald's submission that in the instant case they had in fact largely accepted the burden of proving the falsity of the parts of the leaflet on which they had succeeded.
Dismissing grounds (e) to (g), the court observed that a defence of qualified privilege did exist under English law, but only where (i) the publisher acted under a legal, moral or social duty to communicate the information; (ii) the recipient of the information had an interest in receiving it; and (iii) the nature, status and source of the material and the circumstances of the publication were such that the publication should be protected in the public interest in the absence of proof of malice. The court accepted that there was a public interest in receiving information about the activities of companies and that the duty to publish was not confined to the mainstream media but could also apply to members of campaign groups, such as London Greenpeace. However, to satisfy the test, the duty to publish had to override the requirement to verify the facts. Privilege was more likely to be extended to a publication that was balanced, properly researched, in measured tones and based on reputable sources. In the instant case, the leaflet “did not demonstrate that care in preparation and research, or reference to sources of high authority or status, as would entitle its publishers to the protection of qualified privilege”.
English law provided a proper balance between freedom of expression and the protection of reputation and was not inconsistent with Article 10 of the Convention. Campaign groups could perform a valuable role in public life, but they should be able to moderate their publications so as to attract a defence of fair comment without detracting from any stimulus to public discussion which the publication might give. The relaxation of the law contended for would open the way for “partisan publication of unrestrained and highly damaging untruths”, and there was a pressing social need “to protect particular corporate business reputations, upon which the well-being of numerous individuals may depend, from such publications”.
33. The Court of Appeal further rejected the applicants' contention that the appeal should be allowed on the basis that the action was an abuse of process or that the trial was conducted unfairly, observing as follows:
“Litigants in person who bring or contest a High Court action are inevitably undertaking a strenuous and burdensome task. This action was complex and the legal advice available to the [applicants] was, because of lack of funds, small in extent. We accept that the work required of the [applicants] at trial was very considerable and had to be done in an environment which, at least initially, was unfamiliar to them.
As a starting-point, we cannot however hold it to be an abuse of process in itself for plaintiffs with great resources to bring a complicated case against unrepresented defendants of slender means. Large corporations are entitled to bring court proceedings to assert or defend their legal rights just as individuals have the right to bring actions and defend them. ...
Moreover the proposition that the complexity of the case may be such that a judge ought to stop the trial on that ground cannot be accepted. The rule of law requires that rights and duties under the law are determined. ...
As to the conduct of the trial, we note that the 313 hearing days were spread over a period of two and a half years. The timetable had proper regard to the fact that the [applicants] were unrepresented and to their other difficulties. They were given considerable time to prepare their final submissions to which they understandably attached considerable importance and which were of great length. For the purpose of preparing closing submissions, the [applicants] had possession of a full transcript of the evidence given at the trial. The fact that, for a part of the trial, the [applicants] did not receive transcripts of evidence as soon as they were made does not render the trial unfair. Quite apart from the absence of an obligation to provide a transcript, there is no substantial evidence that the [applicants] were in the event prejudiced by delay in receipt of daily transcripts during a part of the trial.
On the hearing of the appeal, we have been referred to many parts of the transcripts of evidence and submissions and have looked at other parts on our own initiative. On such references, we have invariably been impressed by the care, patience and fairness shown by the judge. He was well aware of the difficulties faced by the [applicants] as litigants in person and had full regard to them in his conduct of the trial. The [applicants] conducted their case forcefully and with persistence as they have in this Court. Of course the judge listened to submissions from the very experienced leading counsel appearing for [McDonald's] but the judge applied his mind robustly and fairly to the issues raised. This emerges from the transcripts and from the judgment he subsequently handed down. The judge was not slow to criticise [McDonald's] in forthright terms when he thought their conduct deserved it. Moreover, it appears to us that the [applicants] were shown considerable latitude in the manner in which they presented their case and in particular in the extent to which they were often permitted to cross-examine witnesses at great length.
... [We] are quite unpersuaded that the appeal, or any part of it, should be allowed on the basis that the action was an abuse of the process of the Court or that the trial was conducted unfairly.”
34. The applicants also challenged a number of Bell J's findings about the content of the leaflet, and the Court of Appeal found in their favour on several points, summarised as follows:
“On the topic of nutrition, the allegation that eating McDonald's food would lead to a very real risk of cancer of the breast and of the bowel was not proved. On pay and conditions we have found that the defamatory allegations in the leaflet were comment.
In addition to the charges found to be true by the judge – the exploiting of children by advertising, the pretence by the respondents that their food had a positive nutritional benefit, and McDonald's responsibility for cruel practices in the rearing and slaughtering of some of the animals used for their products – the further allegation that, if one eats enough McDonald's food, one's diet may well become high in fat etc., with the very real risk of heart disease, was justified. ...”
35. The Court of Appeal therefore reduced the damages payable to McDonald's, so that Ms Steel was now liable for a total of GBP 36,000 and Mr Morris for a total of GBP 40,000. It refused the applicants leave to appeal to the House of Lords.
36. On 21 March 2000 the Appeal Committee of the House of Lords also refused the applicants leave to appeal.
37. Under English law the object of a libel action is to vindicate the plaintiff's reputation and to make reparation for the injury done by the wrongful publication of defamatory statements concerning him or her.
38. The plaintiff carries the burden of proving “publication”. As a matter of law (per Bell J at p. 5 of the judgment in the applicants' case),
“any person who causes or procures or authorises or concurs in or approves the publication of a libel is as liable for its publication as a person who physically hands it or sends it off to another. It is not necessary to have written or printed the defamatory material. All those jointly concerned in the commission of a tort (civil wrong) are jointly and severally liable for it, and this applies to libel as it does to any other tort”.
39. A defence of justification applies where the defamatory statement is substantially true. The burden is on the defendant to prove the truth of the statement on the balance of probabilities. It is no defence to a libel action to prove that the defendant acted in good faith, believing the statement to be true. English law does, however, recognise the defence of “fair comment”, if it can be established that the defamatory statement is comment, and not an assertion of fact, and is based on a substratum of facts, the truth of which the defendant must prove.
40. As a general principle, a trading or non-trading corporation is entitled to sue in libel to protect as much of its corporate reputation as is capable of being damaged by a defamatory statement. There are certain exceptions to this rule: local authorities, government-owned corporations and political parties, none of which can sue in defamation, because of the public interest that a democratically elected organisation, or a body controlled by such an organisation, should be open to uninhibited public criticism (see Derbyshire County Council v. Times Newspapers Ltd [1993] Appeal Cases 534; British Coal Corporation v. NUM (Yorkshire Area) and Capstick, unreported, 28 June 1996; and Goldsmith and another v. Bhoyrul [1997] 4 All England Law Reports 268).
41. Throughout the relevant time, the allocation of civil legal aid in the United Kingdom was governed by the Legal Aid Act 1988. Under Schedule 2, Part II, paragraph 1 of that Act, “[p]roceedings wholly or partly in respect of defamation” were excepted from the scope of the civil legal aid scheme.
42. The Access to Justice Act 1999 (“the AJA 1999”) came into force on 1 April 2000, after the proceedings in the present case had concluded. It sets out the current statutory framework for legal aid in England and Wales, administered by the Legal Services Commission (“the Commission”), and made a number of reforms, for example, introducing the possibility for conditional fee agreements. Under the AJA 1999 the presumption remains that civil legal aid should not be granted in respect of claims in defamation (paragraph 1(a)(f) of Schedule). However, the Act contains a provision (section 6(8)) to enable discretionary “exceptional funding” of cases which otherwise fall outside the scope of legal aid, allowing the Lord Chancellor, inter alia, to authorise the Commission to grant legal aid to an individual defamation litigant, following a request from the Commission.
The Lord Chancellor has issued guidance to the Commission as to the types of case he is likely to consider favourably, stressing that such cases are likely to be extremely unusual given that Parliament has already decided in the AJA 1999 that the types of case excepted from the legal aid scheme are of low priority. As well as financial eligibility for legal aid, the Commission must be satisfied either that “there is a significant wider public interest ... in the resolution of the case and funded representation will contribute to it”, or that the case “is of overwhelming importance to the client”, or that “there is convincing evidence that there are other exceptional circumstances such that without public funding for representation it would be practically impossible for the client to bring or defend the proceedings, or the lack of public funding would lead to obvious unfairness in the proceedings”.
43. The normal rule in civil proceedings in England and Wales, including defamation proceedings, is that the loser pays the reasonable costs of the winner. This rule applies whether either party is legally aided or not. An unsuccessful privately paying party would usually be ordered to pay the legal costs of a successful legally aided opponent. However, an unsuccessful legally aided party is usually protected from paying the costs of a successful privately paying party, because the costs order made against the loser will not usually be enforceable without further order of the court, which is likely to be granted only in the event of a major improvement in the financial circumstances of the legally aided party.
44. The Supreme Court Act 1981 provides in section 69:
“(1) Where, on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue –
a claim in respect of libel, slander ...
the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.”
45. The measure of damages for defamation is the amount that would put the plaintiff in the position he or she would have been in had the wrongdoing not been committed. The plaintiff does not have to prove that he has suffered any actual pecuniary loss: it is for the jury (or judge, if sitting alone) to award a sum of damages sufficient to vindicate the plaintiff's reputation and to compensate for injury to feelings.
46. The Civil Procedure Rules (RSC, Ord. 46, rule 2(1)(a)) provide that leave of the court is required in order to enforce a judgment after a delay of six years or more. Leave to issue execution is usually refused after the expiration of six years from the date on which the judgment became enforceable (see National Westminster Bank plc v. Powney [1991] Chancery Division 339, [1990] 2 All England Law Reports 416, Court of Appeal, and W.T. Lamb & Sons v. Rider [1948] 2 King's Bench Reports 331, [1948] 2 All England Law Reports 402, Court of Appeal).
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58738
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF CHA'ARE SHALOM VE TSEDEK v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 9;No violation of Art. 14+9
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 13. Kashrut is the name given to all the Jewish laws on the types of food which may be eaten and how to prepare them. The main principles applying to kosher food are to be found in the Torah, the holy scripture comprising the first five books of the Bible – the Pentateuch – namely Genesis, Exodus, Leviticus, Numbers and Deuteronomy.
14. At the Creation only food from plants could be eaten by man (Gen. i, 29). Eating meat was not authorised until after the Flood (Gen. ix, 3) and then only under very strict conditions. The Torah absolutely forbids the consumption of blood, since blood is the medium of life and life must not be absorbed with flesh but poured on the earth like water (Deut. xii, 23 and 24). In addition, certain animals are regarded as unclean and consumption of certain parts of animals is also forbidden.
15. Among quadrupeds, for example, only animals that are both cloven-hoofed and ruminants may be eaten; that excludes solidungulates like horses and camels and non-ruminating quadrupeds like pigs and rabbits (Lev. xi; Deut. xiv). Among aquatic species, only fishes with both fins and scales may be eaten, but not crustaceans or shellfish. Among flying creatures, only non-carnivorous birds, such as grain-eating, farmyard fowls and some types of game may be eaten. Insects and reptiles are totally forbidden.
16. The Torah (Lev. vii, 26 and 27; xvii, 10-14) prohibits consumption of the blood of authorised mammals and birds, and slaughter must be carried out “as the [Lord has] commanded” (Deut. xii, 21). It is forbidden to eat meat from animals that have died of natural causes or have been killed by other animals (Deut. xiv, 21). It is likewise forbidden to eat meat from an animal showing signs of disease or blemishes at the time of slaughter (Num. xi, 22). Meat and other products of permitted animals (such as milk, cream or butter) must be eaten and prepared separately, in and with separate utensils, because the Torah prohibits the cooking of a kid in its mother's milk (Exod. xxii; Deut. xiv, 21).
17. With a view to ensuring compliance with all the prohibitions laid down in the Torah, later commentators established very detailed rules concerning, in particular, the approved method of slaughter, initially by handing down the oral tradition but later by compiling an encyclopaedic collection of commentaries – the Talmud.
18. Observance of the above rules on the eating of meat necessitates special slaughter processes. As it is forbidden for Jews to eat any blood whatsoever, animals for slaughter, after being blessed, must have their throats slit; more precisely, they must be killed with a single stroke of a very sharp knife in such a way that an immediate, clean and deep cut is made through the trachea, the oesophagus, the carotid arteries and the jugular veins, so that the greatest possible quantity of blood will flow. The meat must then be steeped in water and salted, still with the aim of removing any trace of blood. Certain organs, like the liver, must be grilled to remove blood from them. Other parts, like the sciatic nerve, blood vessels or the fat around the vital organs, must be removed.
19. In addition, immediately after slaughter, the animal must be examined for any signs of disease or anomaly; if there is the slightest doubt on that point, the meat is declared unfit for consumption. Ritual slaughter – shechitah – may be performed only by a shochet, who must be a devout man of unimpeachable moral integrity and scrupulous honesty. Lastly, until it comes to be sold, the meat must be kept under the supervision of a kashrut inspector. The competence and personal integrity of ritual slaughterers and kashrut inspectors are subject to continuous appraisal by a religious authority. In order to guarantee consumers that their meat has been slaughtered in accordance with the prescriptions of Jewish law, the religious authority certifies it as “kosher”. Such certification gives rise to the levying of a tax known as slaughter tax or rabbinical tax.
20. In France, as in many other European countries, the ritual slaughter required by Jews and Muslims for religious reasons comes into conflict with the principle that an animal to be slaughtered, after being restrained, must first be stunned, that is plunged into a state of unconsciousness in which it is kept until death intervenes, in order to spare it any suffering. Ritual slaughter is nevertheless authorised under French law and by the Council of Europe Convention for the Protection of Animals for Slaughter and the European Directive of 22 December 1993 (see “Relevant law and practice” below).
21. Ritual slaughter is regulated in French law by Decree no. 80-791 of 1 October 1980, promulgated to implement Article 276 of the Countryside Code, as amended by Decree no. 81-606 of 18 May 1981. Article 10 of the decree provides:
“It is forbidden to perform ritual slaughter save in a slaughterhouse. Subject to the provisions of the fourth paragraph of this Article, ritual slaughter may be performed only by slaughterers authorised for the purpose by religious bodies which have been approved by the Minister of Agriculture, on a proposal from the Minister of the Interior. Slaughterers must be able to show documentary proof of such authorisation.
The approved bodies mentioned in the previous paragraph must inform the Minister of Agriculture of the names of authorised persons and those from whom authorisation has been withdrawn. If no religious body has been approved, the prefect of the département in which the slaughterhouse used for ritual slaughter is situated may grant individual authorisations.”
22. On 1 July 1982 the approval necessary for power to authorise slaughterers was granted to the Joint Rabbinical Committee alone. The Joint Rabbinical Committee is part of the Jewish Consistorial Association of Paris (“the ACIP”), which is an offshoot of the Central Consistory, the institution set up by Napoleon I by means of the Imperial Decree of 17 March 1808 to administer Jewish worship in France. Following the separation of the Churches and the State in 1905, the Jewish congregations of France, numbering some 700,000 faithful, formed themselves into Jewish liturgical associations (see “Relevant law and practice” below) under an umbrella organisation called the Union of Jewish Congregations of France, which kept the name Central Consistory.
23. Under Article 1 of its statute, the aims of the Central Consistory are to serve the general interests of Jewish worship, to safeguard the freedom needed to take part in it, to defend the rights of the congregations and to see to the founding, survival and development of joint institutions and services for the benefit of affiliated bodies. It also seeks to preserve the independence and dignity of the rabbinate, to ensure the permanence of the office of Chief Rabbi of France, to encourage recruitment of rabbis by organising the Jewish Seminary of France and to ensure, by general rules applicable to all the affiliated bodies, the preservation of unity, discipline and orderliness in the performance of acts of worship. It represents the general interests of French Judaism and is dedicated to maintaining and preserving spiritual ties with Israel and Jewish congregations throughout the world.
24. The Consistory includes congregations representing most of the main denominations within Judaism, with the exception of the liberals, who believe that the Torah should be interpreted in the light of present-day living conditions, and the ultra-orthodox, who advocate, on the contrary, a strict interpretation of the Torah.
25. The Joint Rabbinical Committee is composed of the Chief Rabbi of Paris, from the ACIP, whose registered office is in the rue Saint-Georges, Paris, the rabbi of the orthodox congregation of the rue Pavée, the rabbi of the Jewish congregation of strict observance and the rabbi of the traditionalist congregation of the rue de Montevideo. It is empowered to issue the authorisations needed to obtain a card permitting access to the slaughterhouses. The rabbinical court, or Beth Din, which rules on questions of religious law (marriage, divorce and conversions), supervises observance of the dietary laws and appoints and monitors the kashrut slaughterers and inspectors employed by the Consistory.
26. Since section 2 of the 1905 Act provides that the Republic may not recognise, pay stipends to or subsidise any religious denomination (except in the three départements of Bas-Rhin, Haut-Rhin and Moselle, where the 1801 Concordat still applies), the income of all the liturgical associations in France, of whatever denomination, is derived from the contributions and gifts of their adherents. According to the Government, approximately half of the Central Consistory's resources comes from the slaughter tax, which is levied at the rate of about 8 French francs (FRF) per kilo of beef sold.
27. The liturgical association Cha'are Shalom Ve Tsedek is an association declared on 16 June 1986 with its registered office in the rue Amelot, Paris. According to its statute, the applicant association's aims are “to organise, subsidise, encourage, revive, assist, promote and finance, in France, public Jewish worship and any other related or connected activities of a religious nature which might, directly or indirectly, lead towards the object it pursues”. In addition, “It will seek to co-ordinate the spiritual actions of other Jewish liturgical associations, particularly those aimed at fostering observance of kashrut. It will assist with the promotion and creation of all social, educational, cultural and spiritual activities as far as its means permit and provide both moral and financial support to poor families belonging to the congregation or those experiencing temporary difficulties.”
28. The Cha'are Shalom Ve Tsedek association now has six hundred subscribing members and approximately forty thousand adherents, some of whom run a total of twenty butcher's shops, nine restaurants and five caterers in the Paris region alone. In addition it has more than eighty outlets for the sale of deep-frozen food in the Paris region, Lyons and Marseilles.
29. The association publishes Jewish calendars, has a Kollel (study centre for young rabbis), two centres for the study of the Torah and two synagogues, in Paris and Sarcelles. It is administered by a rabbinical committee which has sole jurisdiction over religious issues and is composed of chief rabbis, rabbis, well-known members of the congregation and kashrut slaughterers and inspectors.
30. Originally, the applicant association came into being as a minority movement which split away from the Jewish Central Consistory of Paris. Its members are determined to practise their religion in the strictest orthodoxy. In particular, the applicant association wishes to perform ritual slaughter according to stricter rules than those followed by the slaughterers authorised by the Paris Central Consistory as regards examination of slaughtered animals for any signs of disease or anomalies.
31. The prescriptions concerning kosher meat, derived from Leviticus, were codified in a compendium called Shulchan Aruch (The Laid Table) written by Rabbi Yosef Caro (1488-1575), which lays down very strict rules. However, some later commentators accepted less constraining rules, particularly with regard to examination of the lungs of slaughtered animals. But a number of orthodox Jews, particularly those who belong to Sephardic congregations originally from North Africa, including the members of the applicant association, wish to eat meat from animals slaughtered according to the most stringent requirements of the Shulchan Aruch. This type of meat is referred to by the Yiddish word “glatt”, meaning “smooth”.
32. For meat to qualify as “glatt”, the slaughtered animal must not have any impurity, or in other words any trace of a previous illness, especially in the lungs. In particular, there must be no filamentary adhesions between the pleura and the lung. This requirement of purity mainly concerns adult sheep and cattle, which are more likely to have contracted disease at some point of their existence. But, according to the applicant association, the ritual slaughterers under the authority of the Beth Din, the rabbinical court of the ACIP, the only body to have been approved – on 1 July 1982 – by the Ministry of Agriculture, now no longer make a detailed examination of the lungs and are less exacting about purity and the presence of filaments so that, in the applicant association's submission, butchers selling meat certified as kosher by the Central Consistory are selling meat which its members consider impure and therefore unfit for consumption.
33. The applicant association submitted that it was therefore obliged, in order to be able to make “glatt” kosher meat available to its adherents, to slaughter illegally and to obtain supplies from Belgium.
34. The Government, for their part, produced a certificate from the Chief Rabbi of France to the effect that there were butcher's shops supervised by the Consistory where the members of the Cha'are Shalom association could obtain “glatt” meat. In addition, according to figures supplied by the Government, the applicant association, which has nine employees, including six ritual slaughterers, had a turnover of FRF 4,900,000 in 1993, despite refusal of authorisation to perform ritual slaughter, and more than FRF 3,800,000 of this sum came from slaughter tax. In 1994 the turnover was FRF 4,600,000, of which FRF 3,700,000 came from the slaughter tax, and in 1995 the income from the slaughter tax came to more than FRF 4,000,000. The tax levied by the applicant association for slaughter amounted to FRF 4 for each kilo of kosher meat sold.
35. Between 1984 and 1985, when it was registered only as a cultural (rather than liturgical) association, the applicant association certified as being “glatt” kosher the meat sold in the butcher's shops of its members. This meat was either imported from Belgium or came from animals slaughtered in France in accordance with its own religious prescriptions, and therefore without certification from the Paris Beth Din. Civil proceedings were brought against it by the ACIP, which alleged that it had given a misleading description of goods offered for sale, since it had fraudulently labelled the meat sold as kosher.
However, the ACIP's action was dismissed by the Paris Court of Appeal in a judgment of 1 October 1987, later upheld by the Court of Cassation, on the ground that the 1905 Act on the separation of the Churches and the State did not allow the courts to rule on the question whether a liturgical association like the applicant was empowered to guarantee that meat offered for sale was kosher; on the other hand, the Court of Appeal noted that it had not been contested that the applicant association had complied with the strict rules concerning ritual slaughter and inspection.
36. On 11 February 1987 the applicant association asked the Minister of the Interior to propose its approval with a view to practising ritual slaughter. This application was refused by a decision of 7 May 1987 on the grounds that the association was not sufficiently representative within the French Jewish community and was not a religious association within the meaning of Part IV of the Act of 9 December 1905 on the separation of the Churches and the State.
37. The applicant association appealed to the Paris Administrative Court, pleading an infringement of freedom of religion, guaranteed both by section 1 of the Act of 9 December 1905 on the separation of the Churches and the State and by Article 9 of the European Convention on Human Rights.
38. On 28 June 1989 the Paris Administrative Court dismissed the association's appeal, giving the following reasons:
“...
The grounds given for the impugned decision were that the association was not sufficiently representative within the Jewish community and that it was not a liturgical association within the meaning of Part IV of the Act of 9 December 1905. In making that decision the Minister of the Interior refused to accept that the association was a religious body coming within the scope of the above-mentioned provisions.
Although Article 1 of the appellant's statute describes it as a liturgical association governed by the provisions of the Act of 9 December 1905, ... [the applicant association] has not established, as the evidence stands at present, that it subsidises or that it is an offshoot of an association which subsidises the continuation of and public participation in Jewish worship. The fact that it makes kosher meat available for sale in more than twenty retail butcher's and eighty outlets for the sale of deep-frozen food is not sufficient to give the association the character of a religious body which may be proposed by the Minister of the Interior for approval by the Minister of Agriculture ... The Minister of the Interior was thus able to take the impugned decision without committing any error as to the facts or the law or any manifest error of assessment, nor did he infringe the freedom of worship, since he did no more than verify the status of the appellant organisation in the interests of public policy and pursuant to the provisions referred to above.
Lastly, it has not been established that the Minister's decision was taken on grounds that had nothing to do with public policy requirements and was prompted by a desire to reserve the benefit of approval for the only Jewish religious body which has obtained it ...”
39. The applicant association appealed against this judgment to the Conseil d'Etat. In a judgment of 25 November 1994 the Conseil d'Etat dismissed the appeal on the following grounds:
“...
... The documents in the file do not establish that the Jewish liturgical association Cha'are Shalom Ve Tsedek, which does not organise any worship or dispense any teaching, has on account of its activities the character of a 'religious body' for the purposes of Article 10 ... of the decree of 1 October 1980. Consequently, by refusing to propose it for approval by the Minister of Agriculture, the Minister of the Interior did not commit any error of law and gave sufficient grounds for his decision.
[Lastly,] in taking the impugned decision the Minister of the Interior only used the powers conferred on him by the above-mentioned provisions with a view to ensuring that ritual slaughter is performed in conditions consistent with public policy requirements, public hygiene and respect for public freedoms. Accordingly, the appellant association may not validly maintain that the Minister interfered in the functioning of a religious body or that he infringed the freedom of religion guaranteed in particular by the Declaration of the Rights of Man and the European Convention [on] Human Rights ...”
40. Concurrently with its application of 11 February 1987 for approval as a religious body, the applicant association submitted on the same day to the prefect of the département of Deux-Sèvres an application on behalf of three ritual slaughterers who were members of the association, and were authorised by it, for specific individual authorisations to perform ritual slaughter in an establishment in that département.
41. On 29 April 1987 the prefect refused this application on the grounds that Article 10 § 3 of Decree no. 80-791 of 1 October 1980 empowered prefects to authorise individual slaughterers only where no religious body had been approved for the religion in question and that it was clear that the Joint Rabbinical Ritual Slaughter Committee had been given the approval concerned.
42. The applicant association appealed against this decision to the Poitiers Administrative Court.
43. In a judgment of 10 October 1990 the Poitiers Administrative Court dismissed the appeal against the prefect's decision on the following grounds:
“...
The evidence placed before the Court shows, and this has not been contested, that by a decision of 1 July 1982 the Minister of Agriculture, acting on the basis of Article 10 § 2 of the above-mentioned decree of 1 October 1980, approved the 'Joint Rabbinical Committee' as a body empowered to appoint ritual slaughterers authorised to perform ritual slaughter in the manner prescribed by the Jewish religion. That approval prevents prefects from issuing individual authorisations under Article 10 § 4 permitting persons or institutions adhering to the religion concerned to perform ritual slaughter. It is clear, particularly in the light of Article 2 of its statute, that the cultural association 'Cha'are Shalom Ve Tsedek' proclaims its adherence to the Jewish religion. Consequently, and even though the association apparently refuses for religious reasons to recognise the authority of the 'Joint Rabbinical Committee', the individual application it made for a derogation authorising it to perform ritual slaughter in a slaughterhouse in the département of Deux-Sèvres could only be refused. Accordingly, when the prefect of Deux-Sèvres, in refusing the application on 29 April 1987, applied these legal rules, as he was required to do, without becoming involved in the internal dissensions of the Jewish religion, he did not infringe the principle of equality in the application of administrative rules or the principle of freedom of worship set forth in the Act of 9 December 1905 on the separation of the Churches and the State or the freedom of conscience and religion enunciated ... in Article 9 of the Convention for the protection of Human Rights and Fundamental Freedoms.”
44. In a judgment of 25 November 1994 the Conseil d'Etat upheld the above judgment on appeal, giving the following reasons:
“The provisions ... of the third paragraph of Article 10 of the decree of 1 October 1980 give prefects the power to authorise ritual slaughterers only where no religious body has been approved for the religion concerned under the first paragraph of the same Article. It is clear that the Joint Rabbinical Ritual Slaughter Committee has obtained the approval in question. Consequently, the prefect of Deux-Sèvres was required to refuse, as he did, the application made by the appellant association.”
...”
45. Article 2 of the 1958 Constitution provides:
“France is a secular Republic; it shall ensure the equality before the law of all citizens, without distinction as to origin, race or religion. It shall respect all beliefs.”
46. The relevant provisions of the Act of 9 December 1905 on the separation of the Churches and the State are worded as follows:
“The Republic shall ensure freedom of conscience. It shall guarantee free participation in religious worship, subject only to the restrictions laid down hereinafter in the interest of public order.”
“The Republic shall not recognise, pay stipends to or subsidise any religious denomination. Consequently, from 1 January in the year following promulgation of this Act all expenditure relating to participation in worship shall be removed from State, département and municipality budgets. However, these budgets may include appropriations for expenditure on chaplaincy services intended to ensure freedom of worship in public institutions such as senior and junior high schools, primary schools, hospices, mental hospitals and prisons ...”
“Associations formed in order to meet the costs of a religious denomination, to ensure its continued existence or to foster participation in public acts of worship shall be constituted in accordance with sections 5 et seq. of Part 1 of the Act of 1 July 1901. They shall, in addition, be subject to the provisions of the present Act.”
“These associations must have as their sole object participation in religious worship and be composed of at least
– seven persons in municipalities with a population of less than 1,000;
– fifteen persons in municipalities with a population of between 1,000 and 20,000;
– twenty-five adults permanently or temporarily resident in the religious district concerned in municipalities with a population of more than 20,000;
...
Associations may in addition receive contributions as provided in section 6 of the Act of 1 July 1901 and the proceeds from collections held to meet the costs of worship and may levy charges for: religious ceremonies and services even in the form of an endowment; renting of benches and seats; provision of objects intended for use in funeral services in religious buildings and for the decoration of such buildings ...
Under the conditions laid down by sections 7 and 8 of the Act of 4 February 1901/8 July 1941, on administrative supervision of donations and bequests, liturgical associations may receive testamentary gifts and donations inter vivos intended to help them achieve their objects or subject to religious or liturgical obligations ...
They may not, in any form whatsoever, receive subsidies from the State, the départements or municipalities. Sums allotted for repairs to the buildings used for public worship shall not be considered subsidies, whether or not those buildings are listed as historic monuments.”
“These associations may, in the forms laid down by section 7 of the Act of 16 August 1901, set up unions with a central administrative service or governing body ...”
47. Article 276 of the Countryside Code provides:
“It is an offence to ill-treat domestic animals or wild animals that have been tamed or are being held in captivity.”
48. The relevant provisions of Decree no. 80-791 of 1 October 1980, promulgated to implement Article 276 of the Countryside Code, are worded as follows:
“The provisions of Articles 8 and 9 below shall be applicable in establishments for the slaughter of oxen, sheep, goats, pigs, horses, poultry, domestic rabbits and game.”
“All animals must be restrained before slaughter. In the case of ritual slaughter this must be done before the throat is slit.
Restraint techniques must be designed and used in such a way as to avoid all unnecessary suffering, excitement and injury to the animals. Halters may not be tightened by means of twisting-sticks.
It is forbidden to hang animals up before they have been stunned, or, in the case of ritual slaughter, before their throats have been slit.
The provisions of the present Article shall not apply to the slaughter of poultry, domestic rabbits and small game where these are stunned after being hung up.”
“Stunning, that is the use of an authorised technique which immediately plunges animals into a state of unconsciousness, shall be compulsory before slaughter, save in the following cases:
...
4. ritual slaughter.”
“It is forbidden to perform ritual slaughter save in a slaughterhouse (Decree no. 81-606, 18 May 1989, Article 1). Subject to the provisions of the fourth paragraph of this Article, ritual slaughter may be performed only by slaughterers authorised for the purpose by religious bodies which have been approved by the Minister of Agriculture, on a proposal from the Minister of the Interior. Slaughterers must be able to show documentary proof of such authorisation.
The approved bodies mentioned in the previous paragraph must inform the Minister of Agriculture of the names of authorised persons and those from whom authorisation has been withdrawn.
If no religious body has been approved, the prefect of the département in which the slaughterhouse used for ritual slaughter is situated may grant individual authorisations on application from the persons concerned.”
49. The European Convention for the Protection of Animals for Slaughter, of 10 May 1979, provides, inter alia:
“1. This Convention shall apply to the movement, lairaging, restraint, stunning and slaughter of domestic solipeds, ruminants, pigs, rabbits and poultry.
...”
“Animals shall be restrained where necessary immediately before slaughtering and, with the exceptions set out in Article 17, shall be stunned by an appropriate method.”
“In the case of the ritual slaughter of animals of the bovine species, they shall be restrained before slaughter by mechanical means designed to spare them all avoidable pain, suffering, agitation, injury or contusions.”
“1. Each Contracting Party may authorise derogations from the provisions concerning prior stunning in the following cases:
– slaughtering in accordance with religious rituals;
...”
“1. Each Contracting Party shall make certain of the skill of persons who are professionally engaged in the restraint, stunning and slaughter of animals.
2. Each Contracting Party shall ensure that the instruments, apparatus or installations necessary for the restraint and stunning of animals comply with the requirements of the Convention.”
“Each Contracting Party permitting slaughter in accordance with religious ritual shall ensure, when it does not itself issue the necessary authorisations, that animal sacrificers are duly authorised by the religious bodies concerned.”
50. Recommendation no. R (91) 7 of the Committee of Ministers to member States on the slaughter of animals (adopted by the Committee of Ministers on 17 June 1991 at the 460th meeting of the Ministers' Deputies) includes the following provision:
“...
Recommends to the Governments of the member States:
...
vii. if they authorise slaughter in accordance with religious rites without prior stunning, to take all possible measures to protect the welfare of the animals concerned by ensuring that such slaughter is carried out in appropriate slaughterhouses by trained personnel, who observe as far as possible the provisions in the Code of Conduct.
...”
51. The European Directive of 18 November 1974 on stunning of animals before slaughter provides, inter alia:
“Whereas ... the practice of stunning animals by appropriate recognised techniques should be generalised;
Whereas, however, it is necessary to take account of the particular requirements of certain religious rites;
...”
Article 4 of the Directive provides:
“The present Directive does not affect national provisions related to special methods of slaughter which are required for particular religious rites.”
52. The European Directive of 22 December 1993 on the protection of animals at the time of slaughter or killing provides, inter alia:
“Whereas at the time of slaughter or killing animals should be spared any avoidable pain or suffering;
Whereas, however, it is necessary ... to take account of the particular requirements of certain religious rites;
...”
53. In a judgment of 2 May 1973 (Association cultuelle des israélites nord-africains de Paris – Liturgical Association of North-African Jews in Paris, Rec. p. 312), the Conseil d'Etat held:
“... In requiring ritual slaughter performed under conditions derogating from the provisions of ordinary law to be carried out only by ritual slaughterers authorised by religious bodies approved by the Minister of Agriculture on a proposal by the Minister of the Interior, the Prime Minister did not interfere in the affairs of religious bodies and did not infringe the freedom of worship but took the measures needed for exercise of that freedom in a manner consistent with public policy ...”
NON_VIOLATED_ARTICLES: 14
9


ITEMID: 001-79065
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: R. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant is a British citizen born in 1987 and resident in Chester-le-Street. He is represented by Gordon Brown Associates, solicitors practising in Chester-le-Street.
In November 2001, five girls at the applicant’s school alleged that he had committed indecent assaults on them. The applicant then aged 14 was suspended from school pending investigation.
On 5 December 2001, the school informed the police of the allegations.
Between 13 December 2001 and 9 January 2002, the police interviewed the five complainants.
On 11 January 2002, the applicant was summoned to the police station. He was arrested on suspicion of indecent assault and caution. The police interviewed him in the absence of a legal representative but with his stepfather present. The police had asked whether they wanted a solicitor present but they stated that they did not. The applicant admitted to “horseplay” and actions amounting to indecent assault in respect of three girls. The applicant was released pending further assessment of the case.
On 29 January 2002, the applicant attended the police station where Acting Inspector Pullen informed him that the police had decided to deal with him by way of a warning under section 65 of the Crime and Disorder Act 1998. The Inspector did not ask the applicant if he consented to the warning and the applicant was duly warned regarding the allegations of all five complainants. Neither the applicant nor his stepfather were advised by the police that a consequence of the warning was that the applicant would be required to sign onto the Sex Offenders Register, which warning was required by paragraph 73 of the guidance issued by the Secretary of State.
On 6 February 2002, R. refused to sign the register.
On 23 April 2002, the applicant issued an application for judicial review of the decision to warn him under section 65, complaining effectively that he had been subject to a public declaration of guilt by an administrative process to which he had not consented.
On 10 June 2002, Mr Justice Sullivan refused his application.
On 25 July 2002, the Divisional Court upheld his appeal and granted permission. The case was joined with the case “U”. Issues were raised, inter alia, under Articles 6, 8 and 14 of the Convention.
On 13 November 2002, following a hearing, the Divisional Court held that the imposition of the warning without informed consent or a waiver amounted to a prima facie breach of Article 6 §§ 1 and 2 of the Convention. Lord Justice Latham found the admissions made by R. had been reliable and not made in response to any inducement and the police were entitled to rely on them for the purposes of applying the section 65 scheme. As regards the failure of the police to obtain the applicant’s informed consent to a warning, he did not consider that this rendered the decision to administer the warning unlawful under domestic law as the scheme under the 1998 Act did not require the young offender’s consent. However, as regarded Article 6, he found that the Secretary of State was right to concede that Article 6 was engaged and that the police would have been entitled to decide not to prosecute and discontinue the proceedings. In the applicant’s case though, he was required to subject himself to a procedure which had the effect of publicly pronouncing his guilt of the offence of indecent assault. That was the consequence of the final warning being recorded on the Police National Computer (PNC) and available to all those with access to it. This prima facie infringed Articles 6 § 1 and 2. The procedures for cautions and warnings did not have to breach Article 6, being a sensible means of ensuring resources were not wasted and seeking to prevent youth re-offending. It was possible for a mechanism to be provided by which a person waived his right to have his case dealt with by a court; this required informed consent and there was nothing in the 1998 Act requiring the police to proceed without the consent of the offender. The appropriate practice was to ensure that, before a reprimand or warning was administered, the offender and his parent, carer or appropriate adult should be told of the consequences and asked whether or not they consented to that course being taken. As there had been no informed consent in this case, there had been a breach of Article 6 and the decision had to be quashed.
The Divisional Court certified two points of general public importance to be referred to the House of Lords.
On 17 March 2005, the House of Lords overturned the Divisional Court judgment. Lord Bingham found that there was nothing in the Act which envisaged that the consent of the young offender be obtained and concluded that the only reasonable inference was that Parliament had intended to dispense with such need for consent. He expressed doubt that Article 6 had been engaged, considering that arrest was not sufficient and that the applicant had neither been charged nor informed that criminal proceedings were likely. On the assumption that there had been a criminal charge, he thought that it was inescapable that it ceased to exist when a firm decision was taken by the police not to prosecute. The warning procedure did not involve any penal or punitive element. Further, the record on the PNC was far from a public announcement or declaration of guilt, access being limited to a relatively small number of police, prison and probation officers and agencies fulfilling public functions. Access to the Sex Offenders’ Register was similarly controlled and in neither case did members of the public have access. Thus, he was of the clear opinion that the warning did not involve the determination of a criminal charge and his fair trial rights were not engaged. He did not consider that the scheme infringed the United Nations Convention on the Rights of the Child (1989).
Without dissenting, Lady Hale and Lord Steyn expressed concern that the decision was inconsistent with children’s rights under international law. Lady Hale thought that the system imposed consequences that could be explained away individually as preventative but cumulatively had seriously modified a child’s legal status. She found, however, no public pronouncement of guilt and no determination of a criminal charge.
The Crime and Disorder Act 1998 sets out the overall aim of the youth justice system to prevent offending and re-offending by children and young persons, inter alia, by diverting them from their offending behaviour before entering the court system. It replaced the system of cautions for children and young persons with a structured approach. Depending on the seriousness of the offence, a reprimand is normally given for a first offence and a final warning for a second offence; thereafter the young offender should generally be charged. Following a final warning, the police have a duty to refer the young offender to a youth offending team in order to determine whether or not to provide an intervention programme. Neither a caution nor a reprimand/warning can be given unless the offender has admitted the relevant offence(s).
The critical difference between the informal system of cautions and the system of warnings was that a caution can only be given if the offender gives his informed consent to being cautioned. Neither the 1998 Act nor the guidance issued by the Secretary of State makes any provision for consent.
Section 65 provides, as regards reprimands and warnings:
“1. Subsections (2) to (5) below apply where-
(a) a constable has evidence that a child or young person (“the offender”) has committed an offence;
(b) the constable considers that the evidence is such that, if the offender were prosecuted for the offence, there would be a realistic prospect of his being convicted;
(c) the offender admits to the constable that he committed the offence;
(d) the offender has not previously been convicted of an offence; and
(e) the constable is satisfied that it would not be in the public interest for the offender to be prosecuted.
(2) Subject to subsection (4) below, a constable may reprimand the offender if the offender has not previously been reprimanded or warned.
(3) The constable may warn the offender if-
(a) the offender has not been previously warned; or
(b) where the offender has previously been warned, the offence was committed more than two years after the date of the previous warning and the constable considers the offence to be not so serious as to require a charge to be brought; but no person may be warned under paragraph (b) more than once.
(4) Where the offender has not been previously reprimanded, the constable shall warn rather than reprimand the offender if he considers the offence to be so serious as to require a warning.
(5) The constable shall –(a) where the offender is under the age of 17, give any reprimand or warning in the presence of an appropriate adult...
Section 66 provides for the effects of reprimands and warnings, inter alia that where an offender has been warned the constable shall refer the person to a youth offending team who should assess them and arrange as appropriate for them to participate in a rehabilitation programme.
Where a child or young person has been warned or reprimanded in respect of an offence covered by the sexual offenders’ legislation, they become subject to the notification requirements. In the case of indecent assault, the offender will be registered for two and a half years (the Sex Offenders Act 1997, sections 1(4) and 4(2)).
A reprimand or warning is not regarded as a conviction under domestic law.


ITEMID: 001-88420
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MAIDSTONE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr David Maidstone, is a British national who was born in 1960 and lives in Kent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 7 October 2000. His claim for widows’ benefits was made on 24 January 2001 and was rejected on 1 February 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was reconsidered and confirmed on 1 March 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.