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Justice Bell's Verdict
19th June 1997

Chief Justice Bell's 800 page judgement was handed down on Thursday 19th June 1997 after his presentation of the Summary - the whole judgement is presented here for your enjoyment.

8. The rearing and slaughter of animals.

Next, the leaflet turns to the rearing and slaughter of animals.

Two of the McDonald's arches along the top of the leaflet bear the legends "McMurder" and "McTorture", which relate to McDonald's responsibility for the rearing and slaughter of animals whose carcases are processed into McDonald's products.

After the part of the text of the leaflet directed at advertising, particularly to children, a box appears with the headline "Ronald's Dirty Secret" and the text:

"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."

Beneath the box is a further headline which asks: "In what way are McDonald's responsible for torture and murder?"

That question is answered as follows:

"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?"

The Plaintiffs' original Statement of Claim complained that the leaflet meant that "the Plaintiffs ... are responsible for the inhumane torture and murder of cattle, chicken and pigs."

When opening the Plaintiffs' case relating to the rearing and slaughter of animals on the first day of the trial, counsel for the Plaintiffs said that McDonald's did not dispute the right of anyone at all, if that should be his honest view, to say in strong terms that he disapproved of keeping and killing animals for human consumption. That was entirely a matter of opinion. What McDonald's objected to was "gross misdescription of the facts underlying the expression of such opinion". Counsel said that McDonald's unreservedly accepted that a person holding strong views on the matter might honestly describe the slaughter of animals for food as "murder", but McDonald's did not accept that anyone was entitled to try to excite support for their opinion by making false assertions of fact about the conditions in which animals, in this case animals used by McDonald's, were reared and slaughtered. He said that the issue in this area of the case was whether the methods by which animals were reared and slaughtered to make McDonald's food were cruel and inhumane.

With this in mind the Plaintiffs amended their Statement of Claim to allege that the leaflet meant that "the Plaintiffs ... are utterly indifferent to the welfare of the animals which are used to produce their food, with the results (for which the Plaintiffs are to be held responsible) that

(a) the animals, especially chickens and pigs, spend their whole lives without access to air and sunshine and without freedom of movement; and

(b) the animals (chicken, pigs and cattle) are slaughtered by methods which are grossly inhumane, in that:

(1) the animals waiting to be slaughtered often struggle to escape;

(2) cattle waiting to be slaughtered become frantic as they watch the animal before them in the killing-line being prodded, beaten, electrocuted and knifed; and

(3) the methods used to stun the animals are so inefficient that the animals are frequently still fully conscious when they have their throats cut."

Counsel contended that the amendment specified with greater precision "the ambit of the Plaintiffs' complaint, which is limited to allegations of fact and does not extend to expressions of opinion, provided that they have sufficient factual basis and are made in good faith." It reflected "the distinction between allegations of fact and expressions of opinion."

In my view the leaflet means 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. In particular, some of the animals, especially chickens and pigs, spend their whole lives without access to open air and sunshine and without freedom of movement; animals waiting to be slaughtered often struggle to escape; cattle waiting to be slaughtered become frantic as they watch the animal before them in the killing-line being prodded, beaten electrocuted and knifed; and the methods used to stun the animals are so inefficient that animals are frequently still fully conscious when they have their throats cut.

Birds are animals.

The charge made in the leaflet is clearly one of culpable responsibility. Responsibility for cruel practices towards animals is the next thing for which McDonald's is to blame according to this very critical leaflet. The charge is clearly defamatory and it equally clearly relates to both the First Plaintiff as the company which is responsible for McDonald's generally and the Second Plaintiff as the company responsible for McDonald's in this country where publication of the leaflet is complained of. The charge is clearly damaging to the trading reputation of both Plaintiffs, making people reluctant to deal with them.

The meaning which I have found is much the same as that pleaded by the Plaintiffs, but it is slightly less injurious in two respects.

Firstly, the allegation of lack of air, sunshine and freedom of movement relates to "some of" the animals, as the text of the leaflet says, and not to all of them as the meaning pleaded by the Plaintiffs would infer.

Secondly, I take the view that the reference to responsibility for "torture" and the description of particular practices, some of which most readers would find distasteful, imputes responsibility for cruel practices, but I do not think that it imputes the arguably more serious message of utter indifference to the welfare of the animals, as the Plaintiffs contend.

Although "torture" is a strong word which might involve utter indifference to suffering, the Plaintiffs did not dispute the right of anyone to use strong language in the context of rearing and killing animals for human consumption, and I do not see "torture", used as a strong word for cruelty, necessarily involving utter indifference to the victim, in the context of animal husbandry where one can be responsible for cruel practices without being utterly indifferent to what is going on.

In ordinary circumstances the distinction between utter indifference to welfare on the one hand and cruelty on the other might seem academic, but it has important, practical ramifications in this libel action because in my view the message which the leaflet bears with regard to the rearing and slaughter of animals is a statement of pure fact or alleged fact, rather than comment. It does not become comment just because a strong, condemnatory word like "torture" is used. So if the charge which is made is to be successfully defended it has to be justified, that is shown to be substantially true, and it may be much more difficult, especially when speaking of a company, to prove utter indifference which is a pure state of mind and a negative one at that, than it is to prove responsibility in fact for what are alleged to be cruel practices in fact.

The charge of culpable responsibility for cruel practices is a general charge, just as the message of utter indifference pleaded by the Plaintiffs was a general charge. Since the Plaintiffs alleged a general charge which encompasses the general charge which I have found, the Defendants are not restricted to attempts to prove the particular allegations of alleged cruel practices contained in the leaflet, when seeking to justify the general charge. But even if the Defendants justify the general charge, they may fail to justify one or more of the specific charges of cruel practice, although this may scarcely add to the damages if the general charge is true.

The Defendants argued that any general charge of cruelty to animals was justified by the undoubted fact that the Plaintiffs' businesses required the deaths of vast numbers of animals, parts of whose carcases were processed into the McDonald's food products. I do not believe that the fact of mass slaughter of animals for McDonald's can on its own justify the defamatory meaning of the leaflet, of which the Plaintiffs complain. The allegation of responsibility for "murder" is clearly just a reference in strong terms to the mass killing of animals, and in my judgment the Plaintiffs were right to make nothing of it, because an allegation of responsibility for the killing of animals for human consumption is not, in my view, defamatory. It would not, in my view, be likely to affect the company responsible for the animals' deaths adversely in the estimation of reasonable people generally although it may do so in the estimation of a significant minority of reasonable people. The majority of people in this country, where publication is complained of, eat meat and must be taken not to think badly of those who are responsible for killing animals to provide that meat. On the other hand, the allegation of culpable responsibility for cruel practices in the rearing and slaughter of the animals brings a charge which is defamatory and which is additional to the non-defamatory charge of mass killing of animals.

Of course, the commercial urge to rear and slaughter as many animals as economically and therefore as quickly as possible may lead to cruel practices or to significant numbers of instances of cruelty in methods designed to be humane, which could be avoided if less attention was paid to profit and high production and more to the animals, but that is a factor to be taken into account in judging the truth of the defamatory charge.

There were fundamental issues relating to the circumstances in which a practice should be judged to be cruel and the circumstances in which the Plaintiffs should be judged to be culpably responsible for any cruel practices.

Three attractively simple approaches to the question of whether a practice was cruel were suggested, expressly or or by implication from the argument.

The first was that any practice which caused an animal to suffer any degree of stress or discomfort or transitory pain was necessarily cruel. I cannot accept this. Merely containing, handling and transporting an animal may cause it stress; and taking it to slaughter certainly may do so. But I do not believe that the ordinary reasonable person believes any of these things to be cruel, provided that the necessary stress, or discomfort or even pain is kept to a reasonably acceptable level. That ordinary person may know little about the detail of farming and slaughtering methods but he must find a certain amount of stress, discomfort or even pain acceptable and not to be criticised as cruel.

At a relatively early stage in the evidence, Ms Steel asked Mr David Walker, the part-owner, Chairman and Chief Executive of McKey Food Services Ltd ("McKey"), the processors and suppliers of a number of the Second Plaintiffs' products: "As the result of the meat industry, the suffering of animals is inevitable?"

Mr Walker who has spent may years in the meat industry and who farms himself, replied: "The answer to that must be 'yes'". I do not suppose that his reply surprised anyone.

The second approach was to say that any practice which accorded with the norm in modern farming or slaughter practices was thereby acceptable and not to be criticised as cruel. I cannot accept this approach either. To do so would be to hand the decision as to what is cruel to the food industry completely, moved as it must be by economic as well as animal welfare considerations.

The third approach was to say that any practice which contravened government or other official guidelines, recommendations or codes, was cruel and that any practice which complied with them was not. For instance it was suggested that the measure of whether a practice was cruel or not was to ask whether it was in breach of "The Five Freedoms" which originated from the Brambell Committee's report in the 1960s and which have been approved and taken up by organisations like the Farm Animal Welfare Council (FAWC) as what one witness described as "a blend of welfare requirements for the animal and practical considerations as to what can be achieved in commercial situations". The RSPCA has given retail companies the privilege of putting a "Freedom Foods" label on their products provided that appropriate inspection procedures are followed and animal welfare standards are met. The Freedom Foods Standards are detailed but the essential Five Freedoms are, firstly, freedom from malnutrition, under nutrition and thirst and hunger; secondly, freedom from pain and injury and freedom from fear; thirdly, entitlement to treatment of disease and prevention of disease; fourthly, provision of physical and thermal comfort, and fifthly, an ability of the animal or provision for the animal to perform normal behavioural functions.

There are Ministry of Agriculture, Fisheries and Food (MAFF) Codes of Practice for various elements of animal husbandry, for instance minimum areas per bird for battery hens.

The Five Freedoms are useful measures of animal welfare, as are MAFF Codes of Practice and Farm Animal Welfare Committee (FAWC) recommendations, but they do not necessarily judge what is cruel or not, and in any event I must judge that for myself on the evidence which I have heard.

The principal witness on the overall issue of the welfare of chickens, pigs and cattle was Dr Neville Gregory who gave evidence at the end of July,1994, before leaving to take a chair as a Professor of Animal Welfare in New Zealand.

Dr Gregory was Senior Research Fellow in the Division of Food Animal Science which is part of the School of Veterinary Science of Bristol University. He has been concerned with the welfare of farm animals since about 1973. He has been an active researcher since about 1979, with interests relevant to this case in the rearing and slaughter of chickens, and the preslaughter handling and transport and the stunning and slaughter of chicken, pigs and cattle among other animals. He has been an advisor to MAFF, the Council of Europe and the World Society for the Protection of Animals. His innovative developments in animal welfare and his contribution to the understanding of the science of the preslaughter stunning of animals and its application to the improvement of farm animal welfare earned him an award from the British Society of Animal Protection and the RSPCA in 1990.

I found Dr Gregory to be a careful, and well-balanced witness, impressive in his knowledge and impartiality, sensitive to the welfare of animals, but aware of the needs of the farming and food industry supplying the public.

Dr Gregory said that he did not use the words "cruel" or "cruelty" when it came to this profession. He used the words "humane" which I understand to mean inflicting the minimum of pain or suffering, and "inhumane". He was more inclined to make comparisons with standards in the industry than to use qualitative terms which involved an element of moral judgment, when he was in court to give scientific evidence and to express a scientific judgment. He did say that animal suffering or lack of animal welfare was a function of three factors; the number of animals involved (i.e. its prevalence), the intensity of suffering and the duration of suffering.

I find this helpful in guiding me to a decision on whether a practice is to be judged cruel and inhumane, if prevalence is an indication of whether the infliction of suffering is deliberate or not.

I must use my own judgment, helped by the witnesses, when their views seem sensible, to decide whether a practice is deliberate and whether it causes sufficiently intensive suffering for a sufficient duration of time to be justly described as cruel.

I have not found it easy to exercise this judgment in many instances. There is a natural tendency to see the experience of animals in human terms which might be quite misleading. The extent to which animals feel pain, the extent to which they suffer stress from the recollection of one painful experience or the anticipation of another, the extent to which they suffer from lack of space or of freedom of movement or of normal patterns of behaviour, particularly if they have never experienced anything different and they do not know there is a choice yet they have inherited characteristics the pull of which is difficult to evaluate, are all extremely difficult to judge; and the burden and standard of proof, that it is for the Defendants to prove the balance of probabilities that a practice is cruel must come into play more than it has in other parts of the case.

Some witnesses called by the Plaintiffs made the point that quite apart from any consideration of the animals themselves, as a general principle it was sound commercial practice to treat animals well because a contented animal generally grows and produces better. However, commercial factors are a matter of balance and I see nothing inconsistent in generally trying to keep an animal content while mistreating it in certain respects under the constraint of commercial forces which outweigh the general principle. A short term practice, however cruel, may not affect an animal's well-being sufficiently to be counter-productive, for instance. Dr Gregory said that not many of the animal welfare improvements which he would recommend would have much commercial advantage. Having heard all the evidence about broiler chickens I accept the view of Mrs Clare Druce, the National Organiser of the Farm Animal Welfare Network (FAWN) that chickens are very low value birds individually so that it can be economic to reckon on losing a percentage of them, even if there are "small profits in the chicken business" as Dr Gomez Gonzales, the First Plaintiff's Manager of Meat Products, said.

A stronger point was that stress immediately before and at slaughter can adversely affect the quality of meat, producing dark, firm, dry (DFD) beef and pale, soft, exudative (PSE) pork as a result of stress, both of which seriously reduce the price at which the meat can be sold. I was not told of any equivalent in chickens. In fact, it was the Plaintiff's case that heavier and therefore arguably more humane, stunning of broilers at slaughter could harm the quality and value of the meat.

So far as the question of culpable responsibility for any cruel practices was concerned, the Defendants' case was that since both Plaintiffs are large, powerful and wealthy corporations they must be able, if they chose, to check, monitor and govern practices relating to the rearing and slaughter of animals for their food products. So they should be judged to be culpably responsible for any cruel practice with regard to any animal which was on its way to becoming McDonald's product.

I cannot accept this in full. The Plaintiffs are large and powerful. They purport to have animal welfare policies and they purport to supervise the operations of their immediate suppliers some of whom rear and slaughter their own animals. By and large the Plaintiffs leave their immediate suppliers to supervise sub-suppliers, some of whom rear and slaughter animals, but the immediate suppliers of McDonald's have variable degrees of control, if any, over the farmers who rear the animals.

The Plaintiffs' immediate suppliers of broiler meat and eggs both in the U.S. and the U.K. and probably elsewhere, rear and slaughter their own animals. They are carefully chosen, designated suppliers. It seems to me that McDonald's must be taken to be culpably responsible for any cruel practices of such immediate suppliers. I believe that the same applies where the immediate supplier obtains meat from a limited number of rearing and slaughtering sub-suppliers whom the immediate supplier could reasonably supervise and whose practices could be modified at the Plaintiffs' insistence. This is the position with regard to those who rear and slaughter pigs in the U.K.

However, the cattle rearing industries in the U.S. and the U.K. and, for all I know, elsewhere, and the pig rearing industry in the U.S., are large industries which were well established before McDonald's came along, and they consist of very large numbers of individual farmers. There was no evidence that the Plaintiffs or their immediate suppliers had any control over those industries and unless control can be inferred from the sheer amount of custom which either Plaintiff brings, I do not consider that either Plaintiff can be held culpably responsible for what goes on in those industries.

I will return to this as I deal with each species - chickens, pigs, and cattle, in that order.

Both sides referred to the Plaintiffs' animal welfare policies, or lack of them; the Plaintiffs to show their concern for animal welfare generally, the Defendants to suggest that the policies were hollow.

The First Plaintiff's evidence of an animal welfare policy, or at least a written animal welfare policy, was curious to say the least. Dr Gomez Gonzales said that in the U.S. the Humane Slaughter Act provided guidance on how animals should be treated from birth to slaughter. He said that it was a part of the First Plaintiff's specification that its suppliers should follow the guidelines set by the Humane Slaughter Act. However, that seemed to me to amount to no more than saying that practices should be legal, and the guidelines appeared to be very general and to apply to slaughter rather than to farming. He said that the international specifications provided that suppliers worldwide should comply with local laws and follow the U.S. Humane Slaughter Act guidelines in those countries where animal welfare was "almost ignored", at any rate by government, but he could find no reference to the Humane Slaughter Act in the specifications. They referred to the U.S. Food, Drug and Cosmetic Act, F.D.A. Good Manufacturing Practices and compliance with national food laws and regulations outside the U.S., in other words food laws rather than animal welfare laws.

Dr Gomez Gonzales said that the First Plaintiff did not have a statement like the Second Plaintiff's "Animal Welfare and Husbandry - McDonald's Position". The First Plaintiff did not have anyone who was specifically responsible for animal welfare. It seemed clear that Dr Gomez Gonzales relied upon suppliers to meet their own animal welfare policies where they existed, and upon what he saw as the commercial need for farmers to treat their animals well if they were to grow productively.

On the seventh and last day of his evidence Dr Gomez Gonzales said that he had seen "a small statement, half a page, regarding animal welfare, the concept". This turned out to be a one page statement headed "McDonald's and the Humane Treatment of Animals" which reads as follows:

"Just as McDonald's works hard to maintain the trust and confidence of its customers, it takes seriously its obligation to the communities in which we do business. We are already well-known for our efforts with respect to children and young people. Our commitment to the protection of the environment is also well documented. However, because McDonald's restaurants buy all their food products from independent suppliers, the Company's commitment to the humane treatment of animals may not be as well-known.

McDonald's believes the humane treatment of animals is a moral responsibility. The company fully respects the independence of its suppliers and relies on them to adhere to pertinent laws, regulations, and industry guidelines concerning the humane treatment of animals. Additionally, where those guidelines do not show sufficient concern for the humane treatment of animals, McDonald's suppliers must take all reasonable steps to assure that animals raised, transported, and slaughtered for McDonald's products are treated humanely".

This statement is in the most general terms. It reads more like a public relations hand-out than a serious policy statement and that interpretation is consistent with it not being so well known as to be at Dr Gomez Gonzales finger tips during the greater part of his evidence, although it may have dated from 1989.

The Second Plaintiff disclosed an undated policy statement entitled "Animal Husbandry - McDonald's Position" with additional sheets on "Summary of Supplier Positions" including "Beef -McKey", "Chicken - Sun Valley", "Egg-Oasters", "Bacon - Roach Foods" and "Fish - Icelandic Frozen Foods". These do have many bullet points or starred points about animal welfare mixed with bullet points or starred points about hygiene and even the starred point: "Nowhere in the world does our use of beef threaten or remotely involve tropical rainforest".

The statements are again in rather general terms and again they read like statements to the enquirer who is interested in animal welfare rather than as requirements of the suppliers who might have some control over the conditions in which animals are reared and slaughtered. For example the general page setting out "McDonald's position" includes the paragraphs:

"McDonald's will not work with any supplier who does not adhere to the standards required by U.K. and E.C. legislation regarding animal welfare, transportation and husbandry.

McDonald's insist that animals used in its products are reared in a clean, safe, hygienic, comfortable environment, and that humane methods of killing are used........

McDonald' encourages its suppliers to continually explore new methods of animal rearing and husbandry and to encourage their own suppliers to do the same.

McDonald's supports the Government's measures to increase animal welfare awareness on farms".

The only relevant paragraph under "Beef - McKey" reads:

"All cattle are kept, transported and killed in humane conditions, conforming to standards required by the E.C.".

The information about "Chicken - Sun Valley" is more informative, thus:

"Chickens used for McDonald's products are not reared in cages. They have the freedom to move around at will.

They are reared on deep litter, in environmentally controlled houses which minimise distress to the birds. Temperature and ventilation is constantly monitored, as is the supply of food and drink.

Maltreatment of birds results in the immediate termination of the contract with the farmer.

All birds are regularly inspected by Sun Valley's own veterinary service and by local authority representatives......

Sun Valley uses the most up-to-date and humane animal husbandry management techniques to ensure that the birds are healthy on arrival at the processing plants".

The section on "Egg - Oasters" contains the paragraphs:

"A percentage of Oaster hens are kept in cages. This is the company's preferred system for egg production because it is hygienic and efficient, providing a clean, low-risk environment which enables eggs to be separated from the hens and their droppings.

The remaining hens are kept in percheries and on free range.

The company conforms to the standards set out by the E.C. for welfare of laying hens, including minimum space per hen......

Strict attention is paid to the Codes of Practice regarding the welfare of our hens at all stages of their life. the company is concerned to provide a clean, safe, comfortable environment for the hens, and has a continuing programme of trials with different housing systems including free range and percheries".

The statement does not refer to G.D. Bowes & Sons Ltd, the main rearer and slaughterer of pigs for the Second Plaintiff's products, but it does have a section on "Bacon - Roach foods" as follows:

"All pork used for McDonald's bacon products is produced from pigs which have been treated and kept in humane conditions.

The majority are kept in styes of about 10 pigs. They can enter and leave the stye as they please, and so not suffer from restricted fresh air.

Others are from straw yards, with the same freedom.

Others are free range off the Salisbury Plains.

All pigs are humanely killed under the supervision of Health Inspectors".

The section on fish mainly concerns itself with the well-being of seals, dolphins and whales, none of which are McDonald's menu items. They may be affected by fishing practices, but the terms of their inclusion tends is an indication that the Second Plaintiff's position on animal husbandry was more concerned with satisfying the concerned enquirer than pointing those who rear and slaughter animals for its meat, or fish, products in the right, specific directions.

Mr Edward Oakley, the Second Plaintiff's Chief Purchasing Officer and Senior Vice President said that the "McDonald's Position" part of the policy statement was prepared by the Communications Department (public relations) in conjunction with Quality Assurance and suppliers. The other parts were prepared by the individual suppliers in conjunction with the Second Plaintiff. He thought it was published in 1992 as the subject of animal welfare became topical and people had the right to know the company's position. "Before that the subject had not become particularly topical".

Yet Mr David Walker of McKey, the Second Plaintiff's most important supplier, said that he first saw the document in 1994.

An internal newsletter published in 1994 said that Mrs Barbara Crawford of the Second Plaintiff's Quality Assurance Department would be "looking at areas which we did not get too involved with in the past - animal welfare......"

I accept Ms Steel's contention that the Second Plaintiff's policy statement on animal welfare was for the consumption of members of the public who might ask about it rather than for the consumption of suppliers who might have some effect on detailed animal welfare. I do not accept that it was a committal to paper of a real policy which had existed in its important elements since McDonald's set up in the U.K., which is how Mr Preston portrayed it. In my judgment the First Plaintiff's policy, equally, was primarily for public consumption in case anyone enquired.

I do not consider that either Plaintiff can justly rely on a useful animal welfare policy to establish its concern for animal welfare. This still, however, leaves the question of whether either has been culpably responsible for cruelty to animals. That question must be answered on the basis of what has actually happened to animals reared for McDonald's food products and whether the Plaintiffs are to blame for it.

When the trial started it appeared that the evidence might be somewhat one-sided because the Defendants had been refused permission to inspect any of the farms or plants where animals have been reared and slaughtered for the Second Plaintiff's meat products. The Defendants' witnesses were people who had some experience of such farms or plants when they worked there or had surreptitiously observed what was going on, or people who have an abiding interest in animal welfare and who spoke of what they saw as general practices which by inference, it was said, probably prevailed at the farms and plants which supplied McDonald's.

In fact the Defendants' limited ability to call witnesses as to what went on at farms and plants which supplied McDonald's mattered somewhat less at the end of the day because the Plaintiffs called a number of witnesses, mostly concerning the U.K. but also concerning the U.S. and the rest of the world to some extent. Although the Plaintiffs' witnesses spoke of some, only, of their suppliers, there was less dispute about what went on than about how it affected the animals and whether it was cruel or inhumane.

The evidence covered just about every stage in the rearing and slaughter of chickens (broilers for their meat and to a less extent, layers for their eggs), cattle and pigs. I will restrict myself to the areas which were most closely related to the specific allegations in the leaflet or where the Defendants' criticisms appear to me to have most substance.

I propose to start with broilers because their numbers far exceed the numbers of cattle and pigs. They are called "broilers" in the McDonald's system and elsewhere because once upon a time their meat was mostly grilled.

Reading outside this case tells me that domestication of the fowl goes back several thousand years, and that all varieties of the domestic fowl, gallus domesticus, are believed to descend from gallus bankiva, itself a descendant of the Indian jungle-fowl.

Poultry are susceptible to very intensive methods of rearing. The small size of the carcase allows rapid slaughter, evisceration, cooking and processing and frozen distribution. Developments in all those areas have led to reductions in cost with commensurate increase in consumption, particularly over the last fifty years.

The McDonald's system claims to be the second highest user of chickens in the world. Only a fast food competitor which specialises in fried chicken uses more.

"Gee Whiz numbers" produced by the First Plaintiff in 1990, the last year of material publication of the leaflet, showed 177 million pounds of chicken being consumed in McDonald's U.S. restaurants. Dr Gomez Gonzales said that in 1994 McDonald's used about 183 million pounds of chicken meat from about 120 million broilers. He said that 6.7 billion broilers were produced in the U.S. in 1993. USDA put the figure at 5 billion in 1987. On the basis of those figures McDonald's has been using some meat from just under 3% of U.S. broilers.

McDonald's U.S. broiler meat is supplied by two large corporations, Keystone and Tysons.

Dr Gregory's 1993 statement said that 600 million chickens were slaughtered for meat consumption in the U.K. each year. When he gave evidence in July,1994, he put the figure at about 650 million.

All McDonald's chicken meat products in the U.K. are supplied by Sun Valley Poultry Ltd of Hereford. Dr Mark Pattison, Sun Valley's Group Technical Manager, said that Sun Valley processed about 780,000 birds per week, which must mean about 40 million birds a year. He said that about one-fifth of Sun Valley's turn-over was devoted to McDonald's custom. The major supermarkets took about 80% of the rest of Sun Valley's turn over. A large number of smaller customers took the remainder. I was not, I believe, told whether the Second Plaintiff took the whole meat of one fifth of Sun Valley's chickens, or some smaller proportion of some larger number.

Sun Valley hatches the chicks, rears some itself, has contract farmers rear others, and slaughters them all itself before processing the meat. This overall supply system appears to be the same in the U.S. and it is a fair assumption that a similar system prevails in other countries where there are McDonald's restaurants.

The relationship between the First Plaintiff and Keystone and Tysons is close. Keystone which provides two thirds of the First Plaintiff's U.S. chicken meat was the "Key" in McKey which supplies most of the Second Plaintiffs' non-chicken meat products in this country.

The relationship between the Second Plaintiff and Sun Valley is also close and there is an element of supervision by the Second Plaintiff's Quality Assurance Department. I was told that on two occasions Mrs Crawford of that department had stopped the Sun Valley slaughter line when she found that birds were being inadequately stunned.

These matters bear on the question of whether the Plaintiffs are culpably responsible for any cruel practices at Keystone, Tysons, Sun Valley or their sub-suppliers, so far as the rearing and slaughter of broilers are concerned.

The essentials of the system for rearing and slaughtering broilers for McDonald's meat products in the U.K., the U.S. and most other countries where McDonald's has a large presence are the same.

The birds are hatched in incubators in large numbers; 200,000 a day for four days of the week at Sun Valley. Unhatched eggs are macerated and unwanted chicks are killed by carbon dioxide in the U.K., and by neck dislocation in the U.S.

Suitable, hatched chicks are transported to growing houses which are generally large houses or sheds holding 20,000 to 25,000 birds. The birds stay in the same broiler house until the females are slaughtered at 42 days and the males at 52. Those ages are chosen for strictly economic reasons. The birds will not grow much beyond those ages. The males are capable of growing a bit bigger for a bit longer than the females.

If both sexes are put in the same shed as happens at Sun Valley, there is a partition between the two which is removed when the females are collected for slaughter at 42 days. Thereafter the males have the whole shed. So the birds are most densely packed in the few days up to the 42 day point. In the U.S. the chicks are normally separated by sex before they are housed.

The birds are fed and watered from static feeders and drinkers. They feed and drink at will. The litter on which they stand is removed and replaced only after the whole of a batch has been taken for slaughter. The light level in the sheds is normally kept low throughout, save for a short period once every twenty-four hours when it is normally turned off altogether to accustom the birds to short dark periods so that they do not panic in a power cut.

The chickens are gathered in the growing houses by hand, usually picked up by the legs. They are placed in drawers or cages which are loaded onto lorries which transport them to the slaughter house.

At the slaughter house they are hung upside down by their shanks from a moving line which passes their heads through a stunning bath containing electrically charged water or saline solution to render them unconscious. (They may be rendered unconscious by carbon dioxide but this is less common.) After stunning, arteries in their necks are cut by an automatic knife to deprive their brains of oxygenated blood so that they are dead before they go into a scalding tank and on for defeathering, evisceration and processing.

The evidence explored the opportunity for cruel and inhumane practices throughout all these stages.

Most of the evidence related to Sun Valley, the Second Plaintiff's suppliers in this country, but Dr Fernando Gomez Gonzales spoke of practices in the U.S. and elsewhere. He also gave his view on the humanity of various practices. He was qualified to do so by a variety of degrees in agricultural engineering and animal science including animal welfare. He also has qualifications in food processing. He has extensive experience through his work for the First Plaintiff since 1991 in International Quality Assurance and Purchasing, working with McDonald's suppliers around the world with responsibility for animal husbandry and slaughter and food and safety. He is a very bright and successful young man, but he was reluctant to accept any criticism of McDonald's

Dr Mark Pattison of Sun Valley is a member of the Royal College of Veterinary Surgeons with an MSc and a doctorate in veterinary pathology and diploma in poultry medicine and production. He is a member of FAWC. He is clearly very learned and experienced so far as the rearing and the slaughter of chickens is concerned. Dr Gregory said that his perception of Dr Pattison's attitude towards the welfare of the animals in his charge was that he was caring and conscientious. Having observed him in the witness box for six days, most of it under cross-examination, I agree with Dr Gregory's general judgment. However, he clearly has a professional loyalty to Sun Valley, and where his views of whether chickens suffered from a practice or whether a practice was humane or not differed from those of Dr Gregory, I prefer Dr Gregory's equally knowledgable but more independent view.

Mrs Druce was the Defendant's main witness so far as the rearing and the slaughter of birds, both broilers and layers, were concerned. There was some debate as to whether I could properly treat her as an expert witness whose opinions were admissible for me to evaluate. I think I can. She has no relevant formal qualification, but she has had an intense interest in the poultry industry for very many years and she has kept poultry herself for welfare reasons and she has studied their behaviour. She deferred to Dr Gregory to some extent, particularly on matters with any science in them. In my view her own account of matters was worth listening to. She has represented FAWN when it has been consulted by MAFF and FAWC. However, many of her views were based on her instinctive judgment that what was not normal for a chicken must cause it distress, and upon what she had seen generally rather than at the Second Plaintiffs' suppliers. She had not been able to inspect them.

The first practice of which the Defendants complained was that the chicks were hatched in incubators and never saw the hen which laid them. Ms Steel said that this was cruel and inhumane, but there was simply no evidence that any chick was aware of any loss. Dr Gomez Gonzales said that the first thing that a hatched chick saw, be it a man or another chick, took the place of its parent. I do not accept that the practice of hatching in incubators is cruel.

Macerating unhatched eggs by putting them through a pair of rotating rollers as happens at Sun Valley means that some chicks, moving but unhatched, must be macerated alive, but Dr Gregory said that if maceration was performed efficiently it caused extensive trauma to the brain instantaneously. Although Dr Gregory did not think that Sun Valley's macerators were perfect they were "quite close....a lot closer than other people who....used macerators", and he appeared to find it acceptable to use them on unhatched chicks. There was no evidence of chicks being left grievously injured but conscious and I do not accept that the practice is cruel.

Sun Valley cull chicks which do not meet its standards in one way or another. Dr Pattison said that Sun Valley culled about 200 to 300 unwanted chicks a day by pouring them into a 50 gallon drum containing carbon dioxide. The drum is then sealed. the gassing takes 40 to 45 seconds.

Dr Pattison said that Sun Valley followed a MAFF guideline on carbon dioxide gassing of unwanted chicks, with a trained operator, 100% CO2 and thorough inspection afterwards to check that all the chicks were dead.

However, when Dr Gregory was asked if he considered the practice humane he said that he was very concerned about the use of carbon dioxide as a means of killing chicks from a welfare point of view. At a concentration of 100% or close to 100% the gas could be an irritant. Prior to the loss of consciousness the chicks would experience a profound and unpleasant sense of breathlessness. He thought that it took the chicks two to three minutes to die although they would be unconscious before that. He agreed that the chicks at the bottom of the drum got squashed by those on top of them. He would prefer to see the chicks killed by maceration which fulfilled criteria which had been presented to MAFF.

I bear in mind the danger of substituting one's own imagination of what it must be like to be gassed in this way. I bear in mind that a very young chick's awareness must be limited. I see no reason to doubt Dr Pattison's evidence that even a full grown chicken has a very simple brain and that its cortex does not have the convolutions which indicate the capacity for reasoning present in mammals and man and, indeed , that its ability for conscious thought as opposed to conditioning by heredity, is "not really scientifically proven"; but Dr Pattison also said that as chickens are living creatures we have to assume that they can feel pain, distress and discomfort in some form although we do not know exactly how they feel it.

In my view chicks gassed by Sun Valley do suffer significantly, albeit for a short period, when gassed by CO2 and when an alternative method of instantaneous killing is available and on balance, largely guided by Dr Gregory's concern, I find the practice to be cruel.

Dr Gomez Gonzales' evidence was that Keystone's and Tysons' unwanted chicks in the U.S. were killed by neck dislocation, but this was not pursued and there was no evidence that it was cruel.

Although I have found carbon dioxide gassing to be cruel it is of doubtful relevance to the leaflet because culled chicks are not used for the Plaintiffs' food

Some of the chicks are used as breeders rather than going into broiler houses, and the Defendants complained that they were kept on a restricted diet.

Dr Gregory said that the broiler industry used a genetic strain chosen for its appetite, fast growth and heavy weight. It has been developed with those characteristics for economic reasons. But if birds chosen to breed were fed to appetite they would suffer high mortality, low fertility, obesity and related disease. They would reach virtually full, normal weight after 42 days if they are females and 52 days if they are males, at which ages they are not mature enough to breed. Dr Gregory thought that the breeders were restricted to about 80% of appetite from a relatively early stage of their lives.

Mrs Druce criticised this practice, brought about for profit at the expense of the birds.

Dr Pattison said that he did not believe that the reduced diet had welfare implications. The birds in question were fit, active with nice, glossy feathers and bright eyes and low mortality, all of which indicated that their welfare was catered for. Dr Pattison also, however, said that it was "equally cruel" to overfeed an animal if it had the potential to get fat.

Dr Gregory's "informed guess" was that it was highly likely that the birds felt hungry in human terms because they spent an inordinate proportion of their time foraging looking for food, and they consumed quite large amounts of litter. He thought that the broiler industry was in a dilemma so far as broiler breeders were concerned. It either caused suffering through hunger or faced fertility and mortality problems. This dilemma was due to the genetic selection, Dr Gregory said.

My conclusion is that the practice of rearing breeders for appetite, that is to feel especially hungry, and then restricting their feed with the effect of keeping them hungry, is cruel. It is a well-planned device for profit at the expense of suffering of the birds. The birds may be healthy but there is no ground for supposing that the birds are compensated by awareness of that fact, as a man or woman who restricts an overindulgent diet would be.

The practice seemed to be common to the whole broiler industry so it must affect Keystone and Tysons' birds in the U.S.

The other practice to which the Defendants took exception and which affected breeders more than the broilers was debeaking, which involves cutting off the tip of a chick's beak when it is very young to stop it harming other birds by pecking. Only breeders are debeaked at Sun Valley, but some broilers are debeaked in the U.S.

Mrs Druce said that the problems with debeaking were the initial trauma and then the probability of chronic pain resulting. She based her allegation of chronic pain on a paper by Breward and Gentle of the Agricultural and Food Research Councils Poultry Research Centre in Scotland, published in October,1984. The authors pointed out that the beak of the chicken was extremely innervated and had numerous sensory receptors which were excited in the process of beak trimming although it was not known what kind of information the damaged beak conveyed to the central nervous system: hence the research. One third of the upper and lower beaks of adult Brown Leghorn hens were removed by a commercial, heated blade debeaker. It was found that nerves of the beak were damaged and regrowth of nerve fibres resulted in a neuroma at the end of the nerve stump together with numerous bundles of regenerating fibre. Previous work had shown that beak trimming had resulted in the activation of nociceptors. Similar characteristics in humans were implicated in acute and chronic pain syndromes. The author concluded that the birds' neuromas probably gave rise to abnormal spontaneous nervous activity.

Breward and Gentle also referred to the nerve being damaged for some distance back from the hot cautery blade.

Mrs Druce said that other papers referred to finding less preening behaviour and more resting which, a number of scientists had concluded, was associated with chronic pain at some level.

Dr Pattison said that only the tip of the beak was cut off the breeders only, at Sun Valley. He did accept that receptors in chicken's beaks were sensitive to various stimuli.

Dr Gomez Gonzales said that if Keystone and Tysons birds were debeaked they were clipped manually, not by machine. Only one sixty fourth of an inch was taken off when the beak was about half an inch long. Tysons had stopped doing it. Dr Gomez Gonzales would not accept that the Breward and Gentle article meant that the birds probably suffered pain. He said that the bird suffered no pain if debeaking was done properly.

I doubt that Dr Gomez Gonzales is right in this interpretation of the article, but a more serious difficulty with the article is that it was concerned with the removal by hot blade of one third of the beak of mature birds, whereas the practice described by Dr Pattison and Dr Gomez Gonzales involved the manual removal of a much smaller part of the beak in young chicks. I am not satisfied that this latter practice causes the birds pain or discomfort or, therefore, that it is cruel.

I was shown a film of very bloody beak removal by machine in the U.S., but it was not related to McDonald's suppliers.

The most striking feature of the evidence on the way broilers are reared was the conditions in which they grow in large broiler houses.

I have already said that the young chicks are put, up to 20,000 to 25,000 together in modern units, into broiler houses. At Sun Valley this happens about two days after hatching.

They then grow together as a "crop" which was the word used by Dr Gregory. It is an appropriate term because their mass cultivation appears, superficially at least, to be closer to plant cultivation than traditional animal husbandry. The sheer size of the system does not at first blush appear to lend itself to humane treatment, and when Dr Gregory was asked how the unit which he saw at Sun Valley on a visit in April,1993, matched welfare standards which he thought to be necessary, he asked to be allowed to answer by comparing it with other similar units, saying it was higher than average, rather than giving an outright answer.

A particular complaint by the Defendants was that broilers generally and broilers at Sun Valley in particular were kept in dim light.

Dr Gregory said that lack of light was a deprivation to the bird. Some broiler houses had the light very low so that foraging and normal behaviour patterns were discouraged, and the birds did not have much to do other than feed, drink and sit down, thereby putting on weight effectively. High light levels increased birds' aggression. Mrs Druce said that dim lighting was not geared to the lifestyle of the chicken or any kind of pleasure or enjoyment or natural behaviour.

When Dr Gregory inspected the unit at Sun Valley he found it to be very bright relative to other units elsewhere, with a high level of 75 to 80 lux. To give an idea of what this involved he said that at 60 lux background lighting it was possible to read a piece of print at an acceptable distance. It was like the grey light of morning.

However, it then appeared from Dr Pattison's evidence that Sun Valley normally runs its broiler houses at 10 to 20 lux and that the lighting in the unit which Dr Gregory was taken to must have been turned up (it has a maximum of 200 lux) for him to inspect. This may have been innocent, the better for him to see whatever he wanted to, but it was unfortunate that he was not told.

FAWC recommended that suitable average light intensity was likely to be at least 20 lux and that the industry should be encouraged to adopt the at level of illuminance.

Dr Gomez Gonzales said that relevant broiler houses in the U.S. were lit at around 40 to 50 lux which was supplemented during the day by draw back curtains which covered open wire mesh in the walls of broiler houses in warmer areas. He liked to have 40 lux as a minimum because chicks ate more normally if they could find their feed.

There was no daylight in Sun Valley houses, but nor was there any evidence of difficulty finding feed because of gloom.

I find it difficult to see why Sun Valley houses should not meet the FAWC recommendation all the time, but I find it impossible to find that the low level of lighting has caused Sun Valley birds any direct suffering. In my judgment I have no sound basis for such a finding, whatever Mrs Druce may genuinely feel and despite Dr Gregory's general comment that lack of light was a deprivation to the birds.

I take the same view of the criticism that broiler house conditions restrict freedom to express normal patterns of behaviour. Broiler house birds have no access to sunlight and Dr Gregory said that outdoor hens like sunbathing. Dr Gregory said that fowl naturally perch and run and flap their wings. There was little or no opportunity to perch at Sun Valley, but I understand perching to be largely for protection from predators which do not exist in broiler houses. Dr Gregory said that the movement of broiler house chickens was less than normal, but not severely restricted, at least until close to maximum density. It seems to be normal for broilers to cluster together, even when there is ample space to move around while the birds are still small or soon after the females have been removed.

Dr Gregory said that outdoor hens peck and scratch at the ground. Litter does not encourage this, but they can do it.

Outdoor hens like dust bathing, but Dr Gregory said that the two possible reasons for this are manipulation of the oil or fat content of the plumage and alleviating parasites which can be a problem with free range chickens.

My difficulty is that there is no scientific evidence that chickens feel deprived if they cannot indulge in certain patterns of behaviour, and even though I accept that their long heredity prepares them for certain patterns of behaviour I do not consider that I can infer that, on balance of probabilities, the broiler chicken suffers from their absence, especially when it has never known them in fact.

One particular risk of low lighting in broiler houses is that it may make it more difficult for poultrymen to find sick or injured birds, or dead birds lying in the litter with their potential for the spread of disease in various ways. Sun Valley can obviously turn the lighting up for the poultrymen's periodic inspections but Dr Pattison said that they were carried out at 20 lux.

FAWC's report on the inspection of broiler chickens says that it is not possible for the stockman to look after each bird individually during routine inspection, but a good indication of flock health should be gained. The stockman should pass close enough to all the birds for him to see them clearly and for the birds to be disturbed and move away from him. This should enable him to identify the majority of chronically sick, weak and dead birds which should all be removed form the flock. FAWC recommends that during inspection the lighting level is sufficient to ensure that all the birds are clearly visible and encouraged to move. It expresses the view that the level will need to be to be considerably higher than the 20 lux suggested as suitable light intensity generally. It is likely to be around 200 lux. FWAC recommends that inspections should be carried out twice a day and that the stockman should go within three metres of every bird.

Dr Pattison said that the number of broiler houses per farm varied from one to thirteen. The ideal would be five or six. There would be three staff on a typical five unit farm of 100,000 to 125,000 birds, and perhaps five for a thirteen unit farm.

Ms Steel contended that if one took the low light level with so few staff looking after so many birds, inspections must be ineffective to spot ill or injured and suffering birds.

Dr Pattison's evidence was that the standard of stockmanship was the most important thing. There was a commercial incentive to inspect properly because of the dangers of dead birds being left in the litter and the need to prevent or treat disease. Stockmen were caring people, usually of farming stock, whether they worked for a large company or not. Sun Valley had training programmes and job descriptions and area managers who supervised contract farms.

I heard convincing evidence, to which I will come, of one farm where many birds were observed to be in a very poor state, but there was no real evidence of sick birds being missed as a matter of course at Sun Valley's own or contract farms. Mortality rates, to which I will also come, were put by Dr Pattison at 6% to 6.5% over 52 days which means that about 1300 to 1600 birds must die or be culled from an average batch over the normal period of the commercial lifetime. This is 25 to 30 a day, which is not a large number to have to spot although obviously some days will be higher than others. I bear in mind that the inspection made birds move, thereby, presumably, making it easier to spot those who do not move as readily as the rest.

I can see no reason why Dr Pattison should keep lighting down during inspection if it was in fact causing difficulty. Turning it up costs next to nothing.

In all the circumstances, I am not satisfied that Sun Valley's inspection system, including the low lighting, has led to birds suffering. The same applies to the First Plaintiff's suppliers who use higher lighting.

A short period of darkness every twenty-four hours is required to accustom birds to darkness in the event of power failure. The daily period of darkness at Sun Valley is slightly less than that recommended by FAWC and significantly less than the period which one piece of research has suggested to be the birds' own preference, but I had no evidence upon which I could sensibly decide that the birds suffer as a result. Birds do not eat for the whole of the period when their house is lit, so there is no ground for finding that excessively long hours of lighting lead to overeating.

In my view the most serious criticism of rearing conditions in Sun Valley broiler houses related to maximum stocking density.

FAWC recommends a maximum of 34kg live weight of birds per square metre of space, but Dr Pattison said that Sun Valley's maximum stocking density was generally 36.5kg per square metre and Dr Gregory calculated it at 36.7kg on the day of his visit which was the 41st day of the chicken's lives and therefore the day before the day of maximum density when the females were removed from the unit. That stocking density amounts to less than the area of an A4 sheet of paper per bird weighing about 2kg (4 to 4_lbs). I see that the London telephone directory is A4.

Dr Gregory thought that Sun Valley's birds would probably be above the FAWC recommended maximum for two or three days. He said that at the density he saw, the birds could move away from you as you walked through the "crop", but you had to be very careful where you were treading.

When Ms Steel asked Dr Gregory for his personal opinion as to whether the Sun Valley stocking density was humane he said that he very rarely put things in black and white categories or used the words "cruel" or "cruelty" so the way he expressed it was that it would be desirable to see birds stocked less densely.

He would definitely prefer to see birds stocked less densely than 34kg per square metre even. His personal opinion, not based on science, was that 22kg per square metre would be a useful goal. That is what we should aspire to in a commercial context.

That was, of course, half as much space again as Sun Valley birds had in the last few days before the age of 42 days.

I did not feel that Dr Pattison gave a satisfactory explanation for Sun Valley's maximum stocking density. He was a member of FAWC when it made its recommendation and he said it was judged in the context of ordinary broiler house environment. The environment in Sun Valley's houses was better than normal. But FAWC's recommendation was expressed as a maximum, and presumably, therefore, for all environments including the best. I can only think that since the higher the stocking density the greater the income, unless it causes a significant number of birds to fall ill, Sun Valley's stocking density is what they think they can manage in order to make more money without matching loss.

While I have felt unable to judge that broiler house birds suffer from dim light or inability to express what would be normal behaviour in other conditions, I do not consider that I am indulging in too much anthropomorphism in judging them to be uncomfortable for the last few days of high stocking density at Sun Valley. The high density is intentional and unnecessary and it probably causes the birds some level of real discomfort. In my judgment it is cruel.

The same applies to the U.S. where Dr Gomez Gonzales said that maximum stocking densities could be as much as 36 to 37kg per square metre. The stocking density in the U.S. appeared to be completely governed by economic pressures. Dr Gomez Gonzales said that if you overstock you get a lot of problems like more death and disease and less "feed conversion" but if you have less chickens in the sheds you get less money. There are no laws or regulations. "The U.S. has taken the approach that normal business practices will take care of that (stocking density). If a farmer over-stocks he is going to lose money. If he loses money he is not going to be in the business. It is such a small margin of profit...." Concern for the bird did not seem to enter the equation.

I have already referred to the Second Plaintiff's "Animal Welfare and Husbandry" sheet on "Chicken - Sun Valley", which says that the chickens have the freedom to move around at will. In my judgment that is palpably untrue of the last few days, at least, of their lives in Sun Valley's houses.

The Defendants particularly complained that broilers, particularly those reared in broiler houses, suffered from leg problems, largely, they contended, as a result of their genetic streaming, but taken with their comparative immobility. Mrs Druce said that broilers suffered from painful and crippling leg weaknesses due to their unhealthy weight.

Dr Pattison accepted that at present one consequence of breeding birds for weight was that it might induce leg problems at some later stage in their life and that breeding companies had to work very hard to avoid an increase in genetically induced leg abnormalities. No meat producing breeds had been produced to eliminate leg problems.

The view of all three scientists, Dr Gregory, Dr Pattison and Dr Gomez Gonzales, which I accept, was that the most serious leg problems in broilers were caused by infection, mostly in the hatchery, and that lesser abnormalities were caused by breeding for weight gain.

Gait abnormalities are scored from 5 down to zero. Dr Gregory said that a gait score of 5 meant that the bird was unable to walk. 4 meant that the bird could only walk two or three paces before sitting down; it had to crawl around to eat and drink. The most common cause was infection. Dr Pattison saw it as the result of hatchery infection and combatted it at Sun Valley by putting antibiotics in the chicks' starter rations. Dr Gregory saw this as good practice from the point of view of animal welfare, given the genetic material supplied to Sun Valley. Birds with a gait score of 5 or 4 should be promptly culled.

A gait score of 3 meant a recognisable gait abnormality, but with the bird able to get around the growing shed and to feed and drink adequately. It was a more severe abnormality than 2 which had the same criteria, however.

A gait score of 1 meant a slight abnormality where it was not easy to categorise the lesion or to say that it involved one leg rather than the other. Zero meant no abnormality.

In his evidence Dr Gregory said that he suspected that the interface between impoverished welfare and adequate welfare lay somewhere within gait score 3, but there was no evidence which supported or refuted that. However, he accepted that in an article published in 1992 he put compromise to welfare somewhere between categories 2 and 3 if one adopted the same approach to birds with gait abnormalities as to cows. The compromise to welfare with broilers was not just discomfort from the leg or hip abnormality, it was the lessened ability to get around to food and to drink.

Dr Gregory said that free range broilers of the same genetic strains had reduced levels of leg weakness because they walked more.

When Dr Gregory visited the unit at Sun Valley in April,1993, he made a random inspection of 152 birds which were 41 days old. He found that the prevalence of leg weakness in the Sun Valley birds which he examined was low by comparison with other flocks which he observed. No birds had a gait score of 4 or 5. 7% of the sample had a gait score of 3; a recognisable gait abnormality but able to get around there growing shed and feed and drink adequately. 24% of birds had a gait score of 2; a recognisable but lesser gait abnormality. 39% had no abnormality at all.

Dr Gregory took away a number of Sun Valley birds for pathological examination. The overall prevalence of abnormalities was 44% although he thought this was mild, as was the severity of abnormalities.

The lack of birds with a gait score of 5 or 4 was hardly surprising, in my view, because Dr Gregory was on a conducted visit and the figures came from one high standard growing house at Sun Valley where birds with a gait score of 5 or 4 should have been culled . However, there was no reason to suppose that Sun Valley culled many birds because of severe leg problems. Dr Gregory calculated the overall cull rate as 2.6% at Sun Valley up to 41 days which was the age of the broilers which he saw. This included those which suffered disease, including mortality in chicks. Dr Pattison said there was a mortality of about 6 to 6.5% to 52 days of which 1% were culled. Not all those culled were culled for leg problems.

I accept Dr Pattison's evidence that Sun Valley limited the birds nutrient intake in order to restrict early growth and to get steady growth to minimise leg problems.

It was clear that not all the contract farmers who rear 80% of its birds have the same high standards.

The Defendants called Ms Vicki Watkins who made an unobserved visit to one of Sun Valley's contract farmers in Gwent on the 10th September,1995. She said that she found many birds suffering from severe hip and leg deformities. Some were too crippled to stand. She took a video film which I saw. She immediately made a complaint to MAFF and a Ministry veterinary surgeon inspected the farm within an hour. No action was taken by the Ministry, but in my view this fact did not controvert Ms Watkins evidence, supported by her video, which I accept. The fact that no action was taken by the Ministry lent cogency to Ms Watkins' view that the problem of unculled birds with severe leg problems pervades the industry.

Dr Gomez Gonzales said that the mortality rate in the U.S. was 2% or less because Keystone and Tysons had completely integrated facilities which lessened the incidence of disease. Most of the 2% were culled. Lameness was probably the main reason for culling: probably 40 or 50% of the 2%. The remainder died from respiratory disease.

From all this I conclude that even in a comparatively well run, modern broiler unit, something between 7% to 31% of the birds have welfare compromised by leg problems as a result primarily of their genetic breeding but with some effect from the crowded conditions in which they are kept.

Dr Gregory said that he would like to see the development of genetic strains which are less prone to recognisable gait abnormalities. He said that was within the remit of breeding companies unrelated to Sun Valley. But Dr Gregory did know one breeding company which was selecting for leg strength as one of its criteria, and if, as Dr Gregory said, breeding companies are generally selecting for growth rate and not for adequate criteria in terms of walking, this is presumably because large farmers and processors like Sun Valley and large customers like the First Plaintiff are prepared to countenance the balance as it is presently struck with a significant proportion of birds suffering from what I think must be discomforting leg abnormalities and the potential for situations like that observed by Ms Watkins in Gwent.

I can see no reason why at least 7% of broilers, and possibly more, should have to suffer from discomforting leg problems with which they live on. In my judgment it involves cruelty.

The Defendants claimed that in addition to comparative lack of movement compounding the effect of breeding weight gain so far as leg abnormalities are concerned, keeping large numbers of chickens in close confinement inevitably leads to disease and is cruel in that respect. Dr Pattison agreed that broiler houses provide the ideal conditions for the rapid spread of disease.

I have already referred to the mortality rates of broilers at the Plaintiffs' suppliers; 2% in the U.S. and about 6% in the U.K., overall.

I have no basis for finding that either figure is higher than mortality levels for free range domestic fowl; but three respects in which broilers or broilers raised in heavily populated growing sheds suffer more from fatal disease than the traditional domestic hen, were raised by the evidence.

Firstly, about 10% to 15% of premature broiler deaths among Sun Valley birds are caused by ascites which Dr Gregory described as an extreme manifestation of congestive heart failure. Dr Pattison said that the disease occurred as the result of rapid growth which meant that broilers became too big for their lung size. It only occurs in broiler chickens. However, the figures which I have given mean that ascites afflicts between 0.6% and 0.9% of Sun Valley birds. The figure must be even less for Keystone and Tysons. There was no evidence from which I could really infer that birds suffering from ascites were left to suffer significantly before being culled. I do not find any cruelty here.

Secondly, it was clear that if there is an epidemic among shed reared broilers it is likely to be more devastating than with free range birds. There was considerable evidence of an epidemic of Gumboro disease which causes cardiac arrest from poor heart function. This disease afflicted Sun Valley birds between 1989 and 1992. During that period some farms supplying birds to Sun Valley lost up to 20% of their birds. Others lost none. The average was 2_% above the usual mortality. The disease ran down year by year over the three years until it was brought under control in 1992.

Mr John Bruton who was called by the Defendants spoke of up to 500 to 600 birds being found dead when he and other catchers went into sheds to collect all the birds for slaughter and processing. Dr Pattison said that Mr Bruton must have been referring to 1989 to 1990 when the disease did kill large numbers of birds reaching what would have been the end of their lives in any event.

This was one unfortunate epidemic and I do not hold the Plaintiffs culpably responsible for its consequences.

Thirdly, unless the ambient temperature of broiler houses is controlled there is a propensity to death from heat stress, particularly during heat waves. Dr Pattison said that even one death from heat stress was one which Sun Valley would want to avoid, and in 1993 it had introduced a fail-safe system for hot weather, although I did not understand it to exist in all the houses of all its contract farmers. Heat stress deaths were higher before the system was introduced, but I got no clear picture of a state of affairs which entitles me to find cruelty in this respect.

In addition to fatal diseases the Defendants particularly explored the incidence of Hock Burn.

Hock Burn is a scab which forms on the rear of the leg (the elbow) of a chicken if it is pressed down on its hocks. It is particularly common in birds which are lame. It is also associated with poor quality litter which is wet or which becomes capped by a greasy sheet upon which a chemical irritant forms. The scab can become infected and inflamed.

Dr Pattison said that the incidence of Hock Burn had been 20% among Sun Valley birds. It had been reduced to 10% by the time of his evidence, in early 1995, by changing the drinking system so that there were less spills wetting the litter; by changing the birds diet in about 1987, thus affecting the content of the birds droppings; and by changing to waste paper litter in about 1991. Dr Gregory did not observe any cases of Hock Burn, on the day of his inspection.

Dr Pattison said that when Hock Burn had occurred in birds at Sun Valley it had consisted of small, pin-point lesions. The larger, ulcerated lesions were much rarer. There was no evidence to gainsay this. There was no evidence that the birds suffered any real discomfort from pin-point lesions.

There was no evidence of any real problem with Hock Burn at Keystone or Tysons. Dr Gomez Gonzales said that Tysons had one of the best records and he and not seen problems with it.

I do not consider that there is any sound basis for a finding of cruelty by reason of Hock Burn suffered by birds destined for McDonald's.

I have already said that females are taken for slaughter at 42 days and males at 52 days. Left to their own resources chickens will live much longer, and the Defendants contended that this early killing was itself cruel. I cannot believe, however, that any chicken is aware of any loss and I cannot accept that slaughter at those ages is cruel.

The methods of catching and slaughter are another matter.

Birds at Sun Valley, as elsewhere, are caught by hand and held upside down by one leg in the hands of the catcher until he has several in each hand, whereupon he puts or drops them into a drawer in a module which has been brought into the broiler house. The birds are shooed to one side to make room for the modules and complaint was made of this but I would expect it to be an insignificant event in the life of a broiler. When the drawer is full, it is pushed shut. When the module is full it is returned to the lorry outside the broiler house.

Hips can be dislocated causing haemorrhage and legs can be broken when the birds are caught and carried by one leg. Heads can be crushed when the drawer is shut. Dr Pattison said that such injuries were uncommon. A survey of birds brought to Sun Valley's slaughter plant showed between 0.5 and 0.17% dead on arrival which would amount to 250 to 290 birds out of 170,000 arriving each day. These figures did not, however, include birds which were injured but alive.

Dr Gregory did not witness catching and loading during his July,1993, inspection. On an earlier occasion he had found 190 of 131,617 birds dead on arrival at the slaughterhouse. The most common cause of death was congestive heart failure from stress associated with handling and transporting birds with a predisposition to cardiac arrest. Only 6% of those dead on arrival died because of dislocated and broken hips. The most likely cause was that when they were caught and held in the catchers' hands they flapped their wings; there was torsion of the hip joint which caused it to dislocate and bleed and the bird died of shock. He thought Sun Valley was "commendable from the point of hip dislocation".

Dr Gregory said that the proper way to catch birds was to catch them by the body and hold them so that their wings were pinned to their bodies, but this would slow the whole catching procedure down too much. He said that any handling procedure was likely to be stressful for the bird, but it was difficult to give a scientific view of whether it was stressful for the bird to be held upside down, because its heart rate went up when it was upside down even when it was anaesthetized.

Dr Gregory said that his figures for dead on arrivals including those which died through hip injuries were not the total injured during the loading process. A dislocated hip was likely to cause extensive haemorrhage which would kill the bird, but some birds would go through to slaughter injured. He did not know how many that might be for Sun Valley.

Dr Gregory did criticise the design of the drawers which should have had a flexible border to prevent the heads or necks of birds being crushed.

A very different picture of the effect of catching birds was given by Mr Bruton. He was a bird catcher for Sun Valley between 1987 and 1993 when he was made redundant.

Mr Bruton said catchers would pick birds up by the legs, wings or the back of the neck, but generally they were picked up by one leg. A catcher usually carried six birds in each hand: more if he had big hands; less if he had small hands. They were thrown into the drawers. This did not happen at first, but a time came when catching teams were made larger with more loads to do in a shift. These teams were cut and there was greater pressure to work fast. If a man was off, no one replaced him. The team still had to catch the same number of chickens in the same time given to load the lorry. The number of loads which a team was given to do in a night varied. The more loads the faster the work.

Injured birds with broken legs or wings or scabs were loaded for slaughter because the farmers said: "They are all part of our crop; it goes to the factory". Only dead birds were left behind.

On occasions birds' heads were injured by closing a drawer quickly after the last handful of birds was thrown in. Supervisors did sometimes complain when birds with trapped heads arrived at the plant. The catching team would say that it would not happen if they had more time, but they did not get more time.

An attempt was made to discredit Mr Bruton by reason of events which there is no need to mention here; but he was given a decent reference by Sun Valley when he left them and the thrust of his evidence that birds were mishandled and suffered as a result of pressure to work fast was, in my view, supported by other evidence and the inherent likelihood of the situation.

Ms Louise Wallis gave evidence of observing a lorry loaded with chickens arriving at Sun Valley's plant in Hereford on an occasion in December, 1988. She said that the chickens were packed tightly in crates, which must have been her word for the drawers in the modules. The birds generally looked listless and apathetic. Some had their mouths open, panting, and others had wings or legs sticking out of the side of crates. I had no good reason to suspect Ms Wallis of exaggerating, let alone of lack of honesty.

Dr Pattison said that a team of six catchers was expected to catch and load a shed of 20,000 birds in about five to six hours. I calculate that even allowing nothing for breaks or time to move modules this means that each catcher had to catch and carry around 600 birds an hour into drawers; that is a bird every six seconds which seems to me to leave little or no margin for careful handling or error. If one allows something for breaks and loading, unloading and moving modules, the men must have been working at speed even on Dr Pattison's team plan.

I see no reason to doubt that there were some shifts where teams were short handed or given extra loads to do.

It has the ring of truth that some farmers, at least, would want all birds, including injured birds, to travel. They went from the lorries directly onto the slaughter line at Sun Valley, without detailed inspection albeit after something of a wait on occasions.

The clear picture which I have is that between 1987 and 1993 when Mr Bruton worked for Sun Valley, the intensive catching and loading procedure led to inevitable instances of cruelty to birds by rough handling, on top of the stressful method of holding and carrying birds upside down by one leg, and overhurried loading into the module drawers. This cruelty was in my judgment compounded on occasions by the fact that the bird was already injured. I have reflected on whether catching birds and holding them together by one leg is in itself cruel. On merest balance I find that it is not, and it is certainly difficult to think of any other way of catching and carrying birds quickly. The same applies to transporting large numbers of birds in modules by lorry. But if one is going to catch birds by their legs and put them in drawers on lorries for transport to slaughter, one must take great care not to add to inevitable stress and discomfort by doing it too hurriedly and clumsily, and the catching at Sun Valley's own farms and at contract farms has often been done hurriedly and clumsily under pressure of time with the result that it has been cruel, in my view.

The final chapter for the broilers is the slaughter line itself. I have already summarised the essential stages.

The Defendants complained that the birds were hung upside down in shackles round their shanks. Only shortly before Dr Pattison and Dr Gregory gave evidence, the Sun Valley system had been advanced from one to two lines, thereby slowing it down, and different shackles had been used for female birds and male birds with their larger shanks. But there was no evidence that the faster speed of the single line had involved additional suffering for the birds. Mrs Druce did say that they suffered extreme stress. Dr Gregory said that there was no scientific evidence that hanging a bird upside down was a frightening or distressing experience for the bird. Intuitively many people would say that it was likely to be, but flapping its wings was a typical sign of stress or excitement or anxiety. Dr Gregory observed twenty-six birds being shackled (in the two size shackles). Only one displayed any wing flapping and that lasted about half a second. Sun Valley used a breast comforter, a plastic sheet with which the bird's breast made contact, and which had a calming effect.

In my view hanging chickens upside down in shackles where they stay for about a minute and a quarter before being stunned probably causes the chickens some degree of stress and some may suffer a degree of pain; but I am unable to gauge either. I have no reason to believe that Mrs Druce has more to support her view than her own intuitive judgment and the fact that a chicken is not normally in that position, and I am not satisfied that the practice is cruel.

When Dr Gregory examined the Sun Valley slaughter line in February,1993, he calculated that 10% of the birds were receiving "pre-stun shocks", that is an electric shock before they received the shock which rendered them unconscious although it was not easy to check. Dr Gregory said that the pre-stun shock was less than an electric shock from a domestic mains socket, but it was unpleasant and painful and alarming and it was unacceptable to MAFF and to him. A new line was being fitted at the time and Dr Gregory recommended an electrically isolated ramp to hold the birds up so that they fell into the stun bath, which was more conducive to an instantaneous stun. Sun Valley did not adopt this course. When Dr Gregory returned in April, 1993, they had a dip in the line which some processors and equipment manufacturers believed presented the bird to the bath in a better manner. Dr Gregory disagreed. In his view it still did not prevent pre-stun shocks because the bird came to the bath at the same speed which would in fact be slower on the single line. In April,1993, he observed that 13.5% of the birds were receiving pre-stun shocks. The MAFF code of practice which says that pre-stun shocks are unacceptable and must be corrected suggests a descending shackle line, which Sun Valley had put in, or an electrically isolated approach slope, which Dr Gregory preferred.

Although Sun Valley had adopted a course suggested in the MAFF Code of Practice, the important thing seems to me to be that it was not serving its purpose of avoiding unacceptable pre-stun shocks which were still occurring in large numbers. I class this as cruel. When he gave evidence in February,1995, Dr Pattison said that Sun Valley had virtually eliminated the problem of pre-stun shocks, and I accept this.

It was suggested that stunning at Sun Valley, when it did occur, was not instantaneous because of the design of the bath, until it was changed in early 1993, and because of an allegedly low ampage. The ampage used by Sun Valley was less than that recommended by Dr Gregory to cause an instantaneous stun, but at the end of the day all Dr Gregory could say was that it was not possible to determine whether the birds were instantaneously stunned.

The questions which excited the most evidence about Sun Balley's slaughter procedures were how many birds missed the stunner altogether and whether any went alive and conscious into the scalding tank. The first of these questions is particularly important because of the leaflet's charge that the methods used to stun the animals which are used to produce the Plaintiffs' food are so inefficient that they are frequently still conscious when they have their throats cut.

The essential facts on the first question are as follows.

Some birds at Sun Valley missed the stun bath completely, probably because they lifted their heads above water level as they passed the bath. Apart from tests for consciousness after the bath, one could tell that they had missed the bath because their heads were dry. If birds missed the bath, they normally missed the neck cutter to which they came next, because their necks would not be extended. So a man or woman did the cutting to bleed the bird out. Normally this was done with a cut across the neck but at Sun Valley they were cutting off the whole head. Some scientific research raises doubts about whether there is instantaneous unconsciousness in a decapitated chicken.

When Dr Gregory examined the Sun Valley line in February, 1993, he examined 200 birds after the stun bath and found that 1%, that is two birds, had missed the water. When Dr Gregory returned in April,1993, one of the birds which he tested for reflex response after the stun bath showed a reflex response. It had a dry head so it must have missed the bath and it would still have been conscious when its head was cut off. Dr Gregory spoke of that bird as 0.7% of the birds he examined, so it must have been one of just over 140 birds examined. In all, therefore, three birds out of 340 on two occasions were found to have missed the bath and had their necks cut, decapitated in fact, while fully conscious. That comes to about nine birds in every thousand.

Dr Pattison said that since the installation of a new stun bath since Dr Gregory's visits, the occasional bird, probably one in 300 or 400 birds, lifted its head and was not stunned. Dr Pattison's figure was an estimate only. I assume that his figure was higher before 1993.

Dr Gomez Gonzales said that in the U.S., 1 to 2% of birds missed the stunning bath and had their throats cut without being stunned. He must have been speaking of the First Plaintiffs' suppliers. He said that chopping such birds' heads off was not humane.

I will come to pigs and cattle but there was no basis for finding that any of those animals which were used for the First Plaintiff's or Second Plaintiff's products in the U.S. or U.S. were conscious, let alone fully conscious, when their throats were cut although animals for McDonald's products elsewhere would be, if certain methods of religious slaughter were used. So there was argument as to whether animals were frequently still conscious when their necks were cut, if something like three in 340 chickens fell into that category.

I have no doubt that whoever wrote the leaflet meant to say that more than three chickens out of every 340 were fully conscious when their necks were cut. The Defendants pleaded that about one third of all broilers were sentient when they went to the knife and they may have had in mind German laboratory research in which chickens were stunned by an industrial level of current and an encephalogram still registered some subsequent brain activity in about one third of them, but Dr Gregory did not accept the German researchers' criteria for consciousness, much though he respected them as scientists. I do not think that their research can help me on the pre-cutting consciousness or otherwise of chickens taken for McDonald's products.

Dr Gregory expressed the view that for 0.7% or 1% chickens to miss the stun bath was not frequent, but in my view this is a matter of ordinary judgment, rather than scientific judgment. At Sun Valley's slaughter rates 0.7% to 1% works out at about 5,500 to 7,500 birds a week (from a weekly production of 780,000 birds) which are, or were, being decapitated fully conscious on their way to becoming the Second Plaintiff's products. With the greater turnover in the U.S. and Dr Gomez Gonzales' percentages the numbers per day whose necks are cut when they are fully conscious on the way to becoming the First Plaintiff's products must be rather more.

I do not know how long the relevant slaughter shifts are at Sun Valley or Keystone or Tysons. But even if they amount to as much as fifty hours a week, that means about two or so birds a minute in the U.K., and more in the U.S., being fully conscious when their throats are cut. Even if Dr Pattison's figures are more accurate it would mean 40 to 50 birds an hour being fully conscious when their throats are cut. That is "frequent" to me.

I judge neck cutting while conscious to be cruel by modern standards. The whole purpose of stunning animals is to render them unconscious and insentient before their throats are cut.

I was not, however, satisfied to the required standard, that any birds went conscious to the scalding bath.

Criticisms which Dr Gregory supported were made of the Sun Valley system which did not cause cardiac arrest upon stunning and which then involved cutting the back of the neck, rather than a ventral neck cut, so that one of the carotid arteries rather than both were cut and the spinal cord of the great majority of birds (83%) was severed. This meant that a carotid artery was still able to carry blood to the bird's brain, yet the damage to the spinal cord would prevent breathing and might mask resumption of consciousness. It appeared that the spinal cord was severed to facilitate feather release on plucking.

When the depth of the neck cutter was reduced at Dr Gregory's request for the purpose of his inspection, so that fewer (20%) of birds had their spinal cord cut, Dr Gregory found that 4 out of 100 birds were breathing rhythmically 37 seconds after having their necks cut but none were still conscious. At the entrance to the scalder 200 birds were assessed for residual brainstem activity. Two had residual brainstem activity, so they were not clinically dead although they could have been on the borderline of death. Neither bird showed any sign of conscious activity, or ability to perceive in terms of their faculties. Being unconscious they would not, by definition, be able to feel pain.

Since Dr Gregory's inspection Sun Valley has changed to a ventral neck cutter, but in any event I find that all birds which did pass through the stun bath were stunned and that they did not recover consciousness before or after neck cutting. No birds at Sun Valley went to the scalder with any level of consciousness.

In summary, so far as broiler chickens reared and slaughtered for the Plaintiffs are concerned, I find that there have been cruel practices relating to the culling of chicks by carbon dioxide (U.K.), the restriction of feed for breeders (U.K. and U.S.), the leg problems of broilers bred for weight gain (U.K. and U.S.), the stocking density in the last few weeks of the females' lives at least (U.K. and U.S.), the catching and handling of the broilers when caught for slaughter (U.K.), prestun shocks on the slaughter line (U.K.) and numbers of birds having their throats cut while fully conscious (U.K. and U.S.). I do not find other practices in relation to the breeding and slaughter of broilers for the Plaintiffs' products to be cruel on the evidence which I have heard.

Although only a part of Keystone and Tysons' broiler production is directed at the First Plaintiff, and only a part of Sun Valley's broiler production is directed at the Second Plaintiff, the amount of their production for McDonald's is very considerable.

Both Plaintiffs take some interest in those suppliers' methods of rearing and slaughter. Although they might be able to do little about the well-established system of rearing broilers in large numbers in broiler houses and slaughtering them on high capacity lines, the ultimate capacity of the broiler house and the details of the lines are obviously variable, and in my judgment they could use their considerable influence to avoid the particular practices which I have judged to be cruel. They did not, in fact, argue to the contrary. No doubt some changes would raise the cost of their chicken products, but there was no evidence that the cost would be increased significantly. The Plaintiffs did not, in any event, take this point.

In my judgment the First and Second Plaintiffs are responsible and culpably responsible for the practices which I have judged cruel so far as broilers are concerned.

Egg-laying hens also work for McDonald's.

In a brochure which it produced as long ago as 1987 the First Plaintiff said: "We crack over 3 million fresh Grade A large eggs - every single day". That was for all kind of food products, but it was for the U.S. only.

McDonald's U.S. eggs are supplied by two large corporations, Cargill, primarily, and Tysons which also supplies broiler meat. Their layers are kept in battery cages.

I do not have figures for the U.K. where McDonald's eggs are supplied by Oasters.

I have already referred to the Second Plaintiff's "Animal Welfare and Husbandry" sheet which summarises "Suppliers Positions, Chicken - Sun Valley" and starts by saying: "Chickens used for McDonald's products are not reared in cages". Anyone who read that statement and thought that they might apply to chickens which produced the Second Plaintiff's eggs would be misled. If they read on through the "Animal Welfare and Husbandry" statement to "Eggs - Oasters" they would still be misled to some extent in my view because it says that "a percentage of Oasters' hens are kept in cages", and the Second Plaintiff made a formal admission that "McDonald's uses eggs supplied by Oasters who keep chickens in battery cages, where the chickens have no freedom of movement, no access to fresh air and sunshine". There was no suggestion that any significant percentage, or any percentage at all were kept other than in battery cages, for instance in percheries or free range as the "Eggs - Oasters" statement says.

Mrs Druce was particularly concerned with battery hens before she became concerned with the broiler industry, no doubt because their existence is completely alien to any animals' normal lifestyles and behavioral patterns which cannot be bred out, in her view. Apart from loss of natural behaviour patterns like dustbathing, to which I have referred in relation to broilers, Mrs Druce was particularly concerned with the brittle bones from which, she said, battery hens particularly suffered.

Dr Gregory had visited Oasters but he did not make a report on what he found for disclosure in the trial. I do not see anything sinister in this. The Second Plaintiff formally admitted the Defendants' pleaded case in relation to Oasters' hens and there was, therefore, no need for evidence on the point. But once Dr Gregory came to give evidence he could be asked about Oasters' battery hens.

Dr Gregory said that the conditions at Oasters were pretty typical of the industry as a whole in terms of welfare.

His recollection was that Oasters' hens were five to a cage and met MAFF's Code of Practice of a minimum of 450 square cm per bird. The sheet of A4 paper upon which I am writing this is 620 square centimetres. So there is about three quarters of the area of a London telephone directory per bird. In some ways this might be misleading because birds can close together or move away a little, but it does paint a picture. Mrs Druce said that 450 square centimetres per bird was typical for the industry. She said that most cages with five birds were 50 cm by 45 cm (20 inches by 18 inches) which worked out at 450 square centimetres per bird. It therefore seems to me likely that Oasters have five layers in a battery cage of 50 cm by 45 cm.

Mrs Druce said that a chicken with both wings fully extended measures roughly 30 inches (about 75 cm) across, so battery hens could never extend both wings at the same time.

Dr Gregory said that there were limitations on battery chickens' ability to walk, flap their wings, stretch both their wings, stretch their necks or turn around, as well as other less basic natural activities.

He said that there could be foot problems as with any system where there was wire, and there could be osteopaenia which resulted in weak bones which were prone to fractures. The birds had a very strong demand for eggshell production since they laid an egg about once every 28 hours: about 250 eggs in a laying period of about 50 weeks, starting at about 16 weeks and going for slaughter at about 72. (Mrs Druce said about 76). Yet there was a limit to how much calcium one could feed a bird because too much would suppress its appetite. So there was a risk of depleting the bird's skeleton of calcium, rendering its bones weak.

About 5% of battery hens suffered fractures which healed. It could be as high as 24% in perchery systems where there were flight accidents. In the order of 29% of battery hens suffered new breaks at "harvesting" for slaughter. About 5% of free range egg-laying hens suffered new breaks at that stage.

The mortality in battery hens to 76 weeks was about 6%. Dr Gregory knew of farms where they had both free range and battery layers and mortality was similar because free range hens could suffer disease from pathogens in manure, from parasites, from cannibalism and from predators.

Dr Gregory said that a battery cage was not as comfortable as litter or straw or some other bedding material in barn systems.

Dr Gomez Gonzales' point about stress adversely affecting egg-laying seemed sensible. He said that if an animal was under stress it would produce an egg every 30 or 40 or 48 hours or not at all, instead of, say, every 24 hours. But he went on to say that "the only animals that are stress free are dead", and the example which he gave of hens stopping laying because of stress involved farms which were cut off by snow so that the animals got no food and stopped producing. Tysons and Cargill also keep their layers in battery cages. Dr Gomez Gonzales said that he had never seen more than four hens in a cage. Tysons normally contained two birds. I do not know the size of their cages, but there must be severe restriction of movement, even if it is not so severe as at Oasters, and presumably there is the same problem of osteopaenia.

Dr Gomez Gonzales said that he had seen no evidence to show that free range chickens are healthier or produce more eggs or are heavier although there was a mass of science on chickens. I am not impressed by the weight point (which relates to broilers too) because the free range layer is more physically active than the battery hen. I also bear in mind Dr Pattison's evidence about the simple nature of the chicken's brain and Dr Gomez Gonzales' evidence that: "An animal who is born and raised in a cage does not know, it is not aware, that there is an outdoors. It is not aware that he has a choice. An animal assumes that that is their environment and it will be comfortable in that environment". That, Dr Gomez Gonzales said, was a fact of nature, documented by a lot of psychologists and psychiatrists, "reported in the literature throughout extensive research".

For all this Dr Gomez Gonzales did repeatedly refer to hens as animals and it seems to me that even the humble battery hen probably has some sentience, some power of perception by its senses, of virtually total deprivation of all natural activities save eating, drinking, some minimal movement, defecating and laying eggs, and that the one in three or four of them which suffer broken bones on "harvesting" for slaughter must feel some significant pain.

I conclude that the battery system as described to me is cruel in respect of the almost total restraint of the birds and the incidence of broken bones when they are taken for slaughter.

In my judgment the Plaintiffs are culpably responsible for this cruelty at the hand of their very limited number of egg suppliers.

It was clear from what Dr Gregory said that a very small proportion of U.K. eggs came onto the market from non-battery hens, and I assume the position to be the same in the U.S. But there was no suggestion that either the First or Second Plaintiffs lacked the ability to turn its dedicated suppliers to providing a sufficient quantity of non-battery eggs or to get someone else to set up the necessary facility elsewhere. Indeed the Second Plaintiff's reference in the "Eggs-Oasters" section of its welfare statement to "a percentage of Oasters' hens" being kept in cages and the remainder being kept in percheries and on free range, assumes that they need not be kept in batteries.

I am not, however, convinced that lack of sunshine or open air is cruel in the case of battery hens any more than in the case of broilers.

I turn to pigs next.

There was a considerable amount of evidence about the way in which pigs slaughtered for meat for McDonald's in this country have been and are reared as well as slaughtered, because most of the pig meat which was processed into McDonald's products has come from one supplier, G.D. Bowes & Sons Ltd.

The position in the U.S. is very different with a very large number of hog farmers. The First Plaintiff's U.S. 1990 Gee Whiz Numbers, to which I have already referred, spoke of using about 110 million pounds of sausage and bacon which must have come from a vast number of pigs from a very large number of sources. According to USDA figures there were 88 million pigs in the U.S. in 1987.

The U.K. figures are much smaller. Dr Gregory's 1993 statement said that 14 million pigs were slaughtered for meat consumption in the U.K. each year. Giving evidence at the beginning of 1995, Mr David Walker of McKey said that the total annual U.K. kill was 15,032,000 pigs.

Mr Walker said that 1.2% of the material kill of pig meat was used for McDonald's in the U.K., based on the fact that McKey did not use the whole carcase for the Second Plaintiff's products. McKey used 2,777,832 lbs of pork a year which was the equivalent of 180,378 pigs a year, or 3,765 per week (15lbs per animal) which was 1.2% of the 15,032,000.

The figures do not include bacon for McDonald's, which comes from another source which I assume to be Roach Foods which is mentioned in the Second Plaintiff's animal welfare statement.

Until 1994, McKey's pig meat for the Second Plaintiff's products came from G.D. Bowes & Sons Ltd. Since then other suppliers have been used, but G.D. Bowes still supplies the greater part of McDonald's sausage and bacon in this country. I heard nothing of those other suppliers' practices, nor Roach Foods, but Mr Ashley Bowes, a director of G.D. Bowes & Sons Ltd., gave evidence for two days, the larger part of it under cross-examination.

G.D. Bowes & Sons Ltd is an independent company founded by Mr Ashley Bowes' father. It farms a large acreage of pasture and arable land in the Norfolk region. Its business lies principally in pig farming and the slaughter of pigs and the processing of their meat. The Second Plaintiff, via McKey Food Service Ltd which processes the meat into McDonald's products, is just one of its customers. G.D. Bowes also supplies large supermarkets and discount stores.

By the time that Mr Bowes gave evidence in early 1995 his company owned about 100,000 pigs. About 40,000 were reared on G.D. Bowes' own farms. The remainder were reared on about seventy other farms in East Anglia, on a contract basis.

G.D. Bowes' own pigs came from 6,300 breeding sows kept in G.D. Bowes' own units, 4,000 outdoors and 2,300 in, according to Mr Bowes. When Dr Gregory visited G.D. Bowes on 20th April, 1993, there were nine outdoor units of 500 sows each and he was told that 60% of the breeding sows were in outdoor units and 40% in. They are separate strains so interchange from one system to the other is unlikely.

On top of all this G.D. Bowes buy about 300,000 pigs for slaughter from independent farmers. If G.D. Bowes turn over 100,000 of their own pigs twice a year, that is about 500,000 pigs going to slaughter each year.

I formed a favourable impression of Mr Bowes. I have no doubt whatsoever that the welfare of the pigs for which he is directly or indirectly responsible is very important to him. His business and its workforce are important to him too, and it clearly pained him that shortly before he gave evidence he had to sack a driver, a good workman, because he had struck a pig in anger. There were many examples of high standards of care of the pigs for which he was responsible, but I will concentrate on the more important of the practices which were alleged to be cruel or inhumane.

The severest complaint made by the Defendants was the condition in which sows were kept for farrowing at G.D. Bowes where indoor sows are put into "farrowing crates" about two days before they are expected to deliver.

The farrowing crates at G.D. Bowes are structures made from round bars. They are built in a farrowing house. They have a passage at the back so they can walk in and they can be inspected from behind. There is a passage at the front so the pig man can inspect the sow from the front. There is a feed trough and a water nipple at the front. There is straw bedding. Mr Bowes said that the crates were about half a metre longer than the sow so that they moved forward to eat and backwards to dung, and they were wide enough for the sow to lie down, but not to turn round. Once a day the sow was taken out for inspection and for cleaning out the stall and it was then allowed to walk up and down a passage for five or ten minutes.

The purpose of the crates is to stop the sow lying or rolling on her piglets. She spends three and a half to four weeks in a crate (2 days before birth and 24 days before the piglets are weaned), and since she goes back to the boar within about three days of weaning, when she comes on heat, she spends two periods in a farrowing crate each year.

The outdoor pigs at G.D. Bowes farrow in their arches (shelters). There are 11 to 12 piglets in an average litter at G.D. Bowes and they get a higher mortality rate with outdoor pigs than the indoor pigs where the sows are in the crates. Dr Long who gave evidence for the Defendants and who criticised virtually every facet of modern pig and cattle farming, accepted that even within farrowing crates larger crates had a higher mortality of piglets.

Ms Steel said that she and Mr Morris considered the farrowing crates, and particularly the fact the sow could not turn around, "extremely cruel" and of course she is entitled to her view which some others will share.

Dr Long who was called by the Defendants and who has campaigned for may years as the animal's friend, challenging the food industry, expressed the view that farrowing crates caused sows a lot of distress. He said that they could not mother properly, but he went straight on to say that the problem was not just the crates but the number of piglets which sows had to bring up each year. He is not qualified in animal science and the basis of his view was not clear to me, unless it was just his personal intuition. Mr Bowes made no bones about preferring the outdoor system, but it is more expensive, so there is a limited market for outdoor pig meat and the Second Plaintiff, through McKey presumably, is unwilling to pay for it, although it sometimes gets some at indoor pig prices when it is going spare.

For all this, I find myself unable to find that the sows suffer during their biannual stays in G.D. Bowes' farrowing crates. It seems to me to be fair to assume that they have imminent farrowing and then suckling piglets primarily in their consciousness, intelligent or instinctual, during their periods in the crates and I do not persuaded that they are cruel.

The return to the boar soon after release from the crate seems to be entirely natural because the sow comes on heat.

U.S. farrowing crates seem to be similar to G.D. Bowes', by Dr Gomez Gonzales' account although he said it was hard to generalise about practices in the U.S.

The next complaint which the Defendants made of the treatment of G.D. Bowes' pigs was their early weaning.

When Dr Gregory visited G.D Bowes in 1993 the piglets were being weaned at 21 days. By the time that Mr Bowes gave evidence in February,1995, this had been extended to 24 days. He said that when he was a boy, a long time ago, pigs were weaned at eight weeks. It would be absolutely wrong to say that there was no distress to mother or piglets when they were removed at 24 days, but there would be distress whatever the age and it was very difficult to assess whether there was more or less stress at whatever time. Mr Bowes personally believed that there were less problems with the sow if piglets were weaned at 21 to 24 days because it kept the sow in a good welfare condition and with modern technology and feeds the pig lost nothing, in his view, in being weaned early.

Dr Gregory said that if weaning was left entirely to the sow it would be later than eight weeks. A mothering instinct would be there. But he would not assume that the sow would be unhappy with weaning at three weeks, as the piglets might irritate her in some way. He said that it was difficult to say what the piglets thought. It deprived them of a source of nutrition which they would otherwise enjoy, and suckling behaviour was being curtailed in time.

From Dr Gomez Gonzales' evidence, it appeared that there was a wide range of weaning practices in the U.S. There was no evidence that it happened earlier than 21 or 24 days.

I am not satisfied that weaning at 21 or 24 days causes any significant or lasting distress to sow or piglet. All animals, including breast-fed children, have to be weaned at some stage. It is an inevitable part of life. There was no evidence that weaning at 21 or 24 days caused more distress than it does, if carried out later, and I do not find the practice to be cruel.

The Defendants complained that the pigs' family structure was broken up, but at G.D. Bowes the weaned pigs go together into outdoor kennels or indoor units, and I see nothing in this point.

The conditions under which pigs are reared at G.D. Bowes vary according to whether they are born to indoor or outdoor sows.

The indoor pigs remain indoors in kennels until they are taken to slaughter. They are moved to finishing units at 30kg live weight. The outdoor pigs are put into "kennels" with a shelter and what seemed to me to be an ample outdoor space, where they stay until they weigh about 40kg. Then they are moved to finishing units indoors. They stay in the same batches of a number of litters with the pigs they know, as do the indoor pigs. The batches appear to be two or three litters strong.

The indoor accommodation consists of Suffolk barns; high ceilinged and with a number of pens.

In the finishing units each pen has a laying area of straw, an area with a low ceiling and a dunging corridor.

The pigs go for slaughter at 90kg live weight, Dr Gregory estimated that at 90kg the stock density would be 0.52 square metre per pig. The MAFF guidelines are at least 0.45 square metre per 80kg pig and at least 0.5 square metre per 100kg pig, so G.D.Bowes maximum stocking density was in excess of the guidelines.

Dr Gregory thought that it was quite likely that the pigs would enjoy more space, but he thought it unlikely that the stocking density at G.D.Bowes limited the pigs' freedom of movement as each pen was fairly big with a lot of pigs in it.

The indoor pigs at Bowes were free to rout in straw and faeces which is a normal behaviour pattern.

Mr Bowes said that the indoor finishing units allowed air to circulate through. They gave "free moving air and sun light as well" The indoor weaners at his brother's farm which also supplied the company, were in a roofed cattle yard with air blowing through. It is the next best thing to being outside.

I could see nothing cruel about G.D.Bowes own indoor rearing and finishing practices.

Mr Bowes was challenged about sows which were kept tethered or in dry sow stalls throughout their lives, even when they were not about to farrow or when they were not suckling. Mr Bowes said that G.D. Bowes had never had these practices and he clearly disapproved of them. He said that none of G.D. Bowes' suppliers had used tethers in the ten years before he gave evidence in 1995.

Mr Bowes said that he would welcome it when dry straw stalls became illegal in this country, in 1998. A dry sow stall is a narrow metal barred stall in which the sow can only stand up or lie down. She cannot turn round. In dry sow stall systems the sow goes into the stall after being put to the boar and she remains there for the whole of her pregnancy until she goes to the farrowing crate, a period of three months, three weeks and three days, less the two days in the farrowing crate before farrowing. Presumably the routine resumes again after weaning and being put to the boar.

Mr Bowes was against dry stalls because of the restriction on the sow. It was physically uncomfortable for the sow because there was not normally any straw; he believed that straw was a natural element which the pig enjoyed whenever it had the opportunity to play with it and rout in it and rest on it. The difference from farrowing crates was that they had straw and served the welfare of the young piglets. He might have added that sows spent much less time in farrowing crates and had the distraction of their piglets, in my view.

Pigs are intelligent and sociable animals and I have no doubt that keeping sows in dry sow stalls for extended periods is cruel.

Yet when Mr Bowes gave evidence in 1995 G.D. Bowes was still buying a small percentage of pigs from farmers who used dry sow stalls. These pigs amounted to less than 10% of their turnover, although the figures had been higher in the past. There was no good explanation of why G.D.Bowes had to take any pigs from farmers who used dry sow stalls when G.D.Bowes itself eschewed them for cogent welfare reasons.

As with other aspects of pig production, rearing conditions in the U.S. appear to be very varied. Dr Gomez Gonzales seemed to say that in the U.S. and other countries pigs for McDonald's food products were reared both inside and outside. There was also a wide range according to weather conditions. He said that he would accept a report that as at January,1989, 60% of all U.S. hogs were housed intensively in total confinement, but he was not pressed on the detail. He did say that he had never come across pigs distressed or ill-treated. However sceptical one might be about such a sweeping statement, there was really no evidence from which I could find that any pigs which went to make McDonald's products in the U.S. were reared in cruel conditions.

Five particular practices in the management of pigs were criticised; teeth clipping, tail docking, castration, ringing noses and the use of electric goads.

At G.D. Bowes teeth clipping was practised if the unit manager thought it necessary. Piglets are born with razor or needle teeth. They can damage the sow's teats. She may then suffer mastitis and the piglets may get less milk. Mr Bowes said that if the unit manager chose to clip teeth he did so with very sharp clippers, "instantaneously" and with very little problem to the pig, at the age of 24 to 48 hours.

Dr Gomez Gonzales said that teeth were clipped by farmers in the U.S. in the same for the same reason.

Dr Gregory said that there was some evidence that teeth clipping was undesirable from an animal welfare point of view. Research from Germany and Sweden had shown that teeth clipping could be associated with a higher prevalence of infectious diseases of the gums and joints. But there were welfare reasons for doing it in that it saved damage to adjacent pigs when they were competing at the udder and it limited the amount of damage to the teat and the udder of the sow.

Dr Gregory said that teeth clipping was a balance in terms of welfare which Dr Gregory could not resolve one way or the other. I accept that and I have to bring in the consideration that there was no evidence of gum or joint problems at G.D. Bowes.

In my view teeth clipping, done properly as it appears to be at G.D. Bowes, is not cruel.

Tail docking is also carried out at G.D.Bowes if the unit manager considers it to be necessary. In some litters there will be one piglet which bites tails so the tails of the whole litter are docked. There was no need to dock the tails of 90% of G.D. Bowes' pigs, but they had one supplier with a strain of pig which bit tails so he docked them all. It varied from farm to farm.

Dr Gomez Gonzales said that tails were docked by farmers in the U.S. for the same reasons.

Dr Gregory said that there was evidence that tail docking was undesirable from an animal welfare point if view. In other species than pigs the surgical operation was reputed to be painful and it could result in a proportion of the animals having lasting pain. Dr Gregory did not see evidence of that at G.D. Bowes, but he said that it could be difficult to identify. There were welfare reasons for tail docking pigs. You were discouraging tail chewing amongst pigs as they were reared and you limited the amount of pain inflicted by one pig on another. You were limiting the opportunity for infection through the chewed tail with subsequent infection in the joints, which could result in pyaemia (blood poisoning) which could be painful and uncomfortable for the animals.

So tail docking was a balance in terms of welfare which, again, Dr Gregory could not resolve one way or the other.

With all these factors in mind, I am not satisfied that tail docking is cruel.

Castration was not practised at G.D. Bowes and I did not hear of it elsewhere in the U.K. on pigs which became McDonald's products, nor in the U.S. The evidence was, so far as I recall, silent on the point. Dr Gomez Gonzales said that pigs were castrated in some parts of the world to avoid the meat developing a strong flavour and to control aggressiveness so that one male pig would not spend much time fighting another. Dr Gomez Gonzales had observed it being done. The piglets showed some signs of distress for a minute "and then they get up and go" and "if you did not know, you could not tell".

The evidence was insufficient to prove cruelty, quite apart from the lack of connection with "McDonald's pigs", in my view.

Some outdoor, but not indoor, sows at G.D. Bowes have nose rings, entirely at the discretion of the pig manager of each unit. Mr Bowes said that the main purpose was to stop the sows routing in their beds in the arches. If they did that little piglets could roll under the sow.

Mr Bowes said that putting the nose ring in was done under the direction of a vet and if he thought it was necessary he would anaesthetize the pig. Mr Bowes thought that it was highly unlikely that the ring stopped the pig routing because it caused it pain. The pig's snout was a gristly type of object and Mr Bowes has a very good idea when a pig was in pain. Mr Bowes would not deny that there was some pain when the nose ring went in, but he did not think that it caused pain thereafter. Although the RSPCA said that nose rings were not to be allowed save in exceptional circumstances, protection of their young justified nose rings in Mr Bowes view. Sows pushed hard food troughs around with rings in their nose. If rings caused pain when pigs were eating they would go thin, and they did not.

I thought that Mr Bowes knew what he was talking about, and I am not satisfied that nose rings are cruel.

Dr. Gomez Gonzales said that the use of electric goads or prods on pigs and cattle varied around the world but it was fairly widespread. The shocks from one was less than a domestic electric shock. It was like touching an electric fence. It might scare you a little for a couple of seconds but that was it. He said that the animal just started and moved away. The justification for using electric goads was that it was easier to handle the animals and therefore less stressful for them.

Mr. Bowes said that electric goads had never been used as standard at G.D. Bowes. They had only been used for specific purposes at times of loading by fully trained personnel when there was an awkward pig. They had not been used at all at G.D. Bowes for six or seven years. They had stopped using them because of customer awareness and because they could use water sprays and boards to help load the pigs, although not using goads made the operation slower.

Dr Gregory spoke of the use of electric goads at Midland Meat Packers to get the cows into the desired position, and in answer to a question about the criticisms of goads from the animal's point of view, he said that the goad gave the animal an electric shock which was unpleasant. He said that they were usually used on the animal's hindquarters. He had not had a goad on himself but he would expect it to be similar to a shock from an electric stock fence but certainly less than an electric shock from a mains plug outlet. The "variables" for the extent of the shock were the thickness of the animal's skin and whether it was wet. If it was wet the current flowed over the surface of the animal instead of through it. He did not say whether this was more or less unpleasant for the animal.

Dr Gregory had known bellowing to occur when electric goads were applied in abattoirs. Another cow hearing the bellowing would probably interpret it as an alarm call.

Mr Chambers said that MMP used goads, but only when an animal would not move and it was absolutely necessary. He had felt the effect of a goad many years ago. When asked what it felt like, he said: "It makes you jump, but I would not say it is particularly painful". He had felt an electric fence and he would say that the effect was about the same.

Electric goads were also used to drive cattle at Alex Jarrett. Ms Marja-Liisa Hovi, a veterinary surgeon called by the Defendants to give evidence about practices at Alex Jarrett so far as food hygiene was concerned, was asked if electric goads were used there. She said that they were but she did not go on to make any criticism of this. Indeed she did not make any criticism of animal welfare at Jarrett's during her supervisory work there.

Mr Howard Lyman who had raised large numbers of cattle as a farmer in the U.S. before devoting himself to campaigning on a number of issues relating to modern farming practices, said goads were typically used on cattle which would not go into the stunning pen at slaughterhouses, but he did not make much of the fact.

I have felt the effect of electric fences myself in the past, many years ago, and most of people have given themselves an electric shock at home on occasions. The evidence was uniformly that the effect of an electric goad is comparable to the former and less severe than the latter. There is no lasting discomfort injury.

I understand the apparent unattractiveness of electric goads but I am unconvinced that, save where they are indiscriminately used, they are cruel, causing as they do a relatively light shock with only a very short term effect.

Dr. Gregory was generally impressed with the high level of handling of pigs at G.D. Bowes including pigs arriving for slaughter. G.D. Bowes' own lorries have hydraulic lifts, but Dr. Gregory saw some arriving on lorries without hydraulic lifts so that when the top deck was unloaded the pigs slid down the ramp on all four feet or on their bottoms. However, he said that it would be speculating to say whether they did or did not enjoy it.

Pigs do die in transit from farm to slaughterhouse. Dr. Gregory spoke of an estimate of 0.07%, that is 7 pigs in 10,000, as the national average, whereas G.D. Bowes put their figure at 0.02%, which is 2 pigs in 10,000. G.D. Bowes' lower figure may be the result of shorter than normal travelling times. Mr. Bowes said that the maximum journey was generally two hours. The absolute maximum journey would be six hours or less and there were very, very few such journeys.

There was no evidence of any significant injury rate.

I can find no basis for sound criticism there.

When asked to what extent pigs died en route from the farm to the slaughterhouse in the U.S., Dr. Gomez Gonzales answered: "I would say it is a very small proportion, probably around 1%." Later he said that he had always seen less than 1%. He said that severe injuries were very rare in transit in the U.S. Later he said the figure would be "very small . . . . . two, three per cent maybe." I was left with the strong impression that Dr. Gomez Gonzales did not know what the U.S. death or injury rates were, save that they were very small, and I see no basis for sound criticism there either.

Dr. Gregory was impressed by the handling of pigs before slaughter at G.D. Bowes. He said that right from the start when they were taken out of the carriage and hosed with water to help to keep them calm, they were not stressed. The level of squealing was unusually low in comparison to other abattoirs. He saw no escape behaviour.

The pigs were stunned in stunning pens worked by two men. One stunned the pig. The other shackled a hind leg with a chain and hoisted the pig out of the stunning pen to the bleeding area.

The method of stunning used by G.D. Bowes was criticised by the Defendants. The pigs were electrically stunned by the application of a pair of scissor-shaped tongs with electrodes at the end, which spanned the head of the pig so that the current was delivered through the head.

Dr. Gregory made a number of comments on the execution of the stunning and sticking procedures at G.D. Bowes.

At the start of stunning, the tongs were usually placed across the neck of the pig. Once it had fallen to the ground they were repositioned with one electrode over an eye and the other behind the opposite ear. The MAFF Code of Practice said that the electrodes should not be applied behind the ears or on each side of the neck. Otherwise the animal might be paralysed without being rendered unconscious and might suffer severe pain. The stunning equipment used by G.D. Bowes delivered a low frequency current at just over 0.4 amp by Dr Gregory's calculation, assuming resistance of 300 ohms (the average for a pig's head) and the voltage of approximately 130 used at G.D. Bowes. This was about the minimum recommended by Dr Gregory's department to provide an adequate stun of all pigs with electrodes spanning the brain.

There was excessive carcase twitching during sticking and whilst the pigs were suspended from the bleeding rail, which made sticking more difficult and more dangerous for the sticker. Dr Gregory saw two pigs fall from their shackles into the blood channel before they were stuck, so they were shot by a man with a captive bolt gun to make sure that they did not regain consciousness. The carcase twitching meant that blood sometimes entered the stunning pen.

Dr Gregory was cross-examined with a view the establishing that G.D. Bowes' practices were cruel for the pigs, or at least some of them. However, Dr Gregory stressed that the aim of stunning was not to kill the pig but the render it unconscious until sticking (cutting its throat) bled it to death. He could not determine whether the practice of an initial application of the tongs across the neck led to more than a risk of initial paralysis without unconsciousness. To test this he would have had to ask the slaughterman to stun the pig very briefly with the electrodes across the neck and without repositioning them to the eye and ear position and then investigate the proportion of pigs which had been stunned. Doing this was not acceptable.

So Dr Gregory said that there was a risk that the initial neck application at G.D. Bowes paralysed the pigs, or some of them, and caused them pain, without rendering them unconscious. The burden and standard of proof being as it is, Dr Gregory was pressed for his personal views of whether the pigs would get pain from the "stun" across the neck before the ensuing stun across the brain. He said: "What would happen, we suspect this is speculation because it was not established during the inspection procedure what could happen, is that a proportion of the pigs may not be instantaneously stunned, may not, but it was not established by any test." In order to establish it he would have to carry out the test to which I have referred. Based on his experience, he said, he would expect that a proportion of the pigs would not be instantaneously stunned. They would get current through the neck instead. When it was suggested that would or could cause them pain, he said that "it could do." Distress was likely.

The subsequent application of the current across the brain from eye to ear did properly stun the forty pigs which Dr. Gregory examined. The twitching was convulsive activity. It did not mean that the pigs were conscious.

I accept Dr. Gregory's evidence as the best opinion that he could give, highly expert as he is in the stunning of animals. In my judgment the balance of probability is that a proportion of pigs slaughtered at G.D. Bowes suffer distress, rather than pain, from the initial application of the electrodes across the neck. But it is very short in time and they are almost immediately rendered unconscious, and I am not prepared to find cruelty.

Pigs which fell from the line were promptly shot with a captive bolt gun before they recovered consciousness from the electrical stun.

The remainder of the criticisms aimed at G.D. Bowes stunning methods raised risks rather than probabilities of distress or pain to the pigs. Dr Gregory did not think that the fact that blood entered the stunning pen distressed the pigs waiting to be stunned. It was quite common for waiting pigs to eat the blood which, presumably, was not a sign of distress.

G.D. Bowes' pigs are slaughtered at the age of about 25 to 26 weeks and sows at the age of three or four years, whereas Dr. Long said that they would get to live into their twenties if they were not being slaughtered for meat. Even if he was right about this, there is absolutely no reason to believe that the pig has any awareness of its loss. In my view the fact that Dr Long should make the point at all showed a tendency to substitute human perceptions for those of the animal, however unknown and probably more limited they might be, save when he could turn lack of awareness to his advantage by, for instance, saying that animals found transport more terrifying than people, because they did not know what was happening. I did not find Dr Long a generally helpful witness on animal welfare.

It follows that the one area in which I am satisfied of cruel practice in relation to pigs which are used for McDonald's products is the almost total confinement of some sows in dry sow stalls for most of their lives, in the U.K. In my judgment the relationship of the Second Plaintiff to G.D. Bowes & Sons Ltd via McKey is close enough to make them culpably responsible for that practice which probably affects a proportion, albeit small, of the pigs who contribute to McDonald's pork sausage products.

There may be cruel practices in relation to pigs which go for the first Plaintiff's pork products in the U.S., but I have insufficient evidence to find them. In any event I have no evidence from which I could infer that the First Plaintiff's demand for pig meat, which I have set out, is large enough to give it control over, or make it responsible for a large and varied hog industry in the U.S.

Turning to cattle, the Defendants sought to prove that many common practices in the rearing of cattle in the U.S. and the U.K. are cruel. Their case was that since parts of the carcases of a significant proportion of U.S. and U.K. cattle go to making McDonald's products, and the abattoirs which supplied meat to McDonald's beef product suppliers took cattle from the cattle industry generally, rather than from designated farms which could be identified, The First and Second Plaintiffs were responsible and culpably responsible for any common practices or incidents which were cruel. In particular the Defendants contended that the dairy industry was cruel; they pointed to fact that McDonald's pattie suppliers, for instance McKey in this country, took much meat which came from culled dairy cattle; and they concluded that the First and Second Plaintiff were responsible and culpably responsible for the allegedly cruel practices of the dairy industry. The Plaintiffs denied that cattle used for their beef products were cruelly treated.

There is no doubt that both Plaintiffs are large and valuable customers of the cattle industry.

The First Plaintiff's U.S. 1990 Gee Whiz Numbers, to which I have already referred, spoke of nearly 500 million pounds of beef being used. Although I cannot convert this into precise figures of head of cattle, it must be a very considerable number. Dr Gomez Gonzales said that McDonald's U.S. suppliers used 150 to 200lbs of deboned beef from an animal of 1000 to 1200lbs to make McDonald's products, i.e. about 12% to 15% of the whole animal. He said that in 1994, three million head of cattle were used to supply McDonald's in the U.S. A little arithmetic shows that he must have meant that McDonald's suppliers took 12% to 15% of the carcases of three million animals.

U.S.D.A. estimated that there were 35.6 million cattle in the U.S. in 1987, so it looks as if McDonald's products used a part of about 8% of U.S. cattle during the period of relevant publication of the leaflet, speaking in very general terms.

The proportion appears to be much the same in the U.K.

Dr Gregory's 1993 statement said that three million cattle were slaughtered for meat consumption in the U.K. each year. Mr David Walker of McKey, giving evidence at the beginning of 1995, said that the total kill of cattle was 3,120,000. In that year McKey used 59,751,272 pounds of beef for the Second Plaintiff's products, which was the equivalent of 331,951 head of cattle or 6,915 per week. In 1994, 76.9% of the beef which McKey used came from the U.K. So McKey used something like 255,277 head of U.K. cattle, or 8.1% of total U.K. beef slaughterings. (This figure may have sunk dramatically since the Second Plaintiff turned to mainland European beef because of the publicity relating to B.S.E., but that is even further removed from the time of relevant publication of the leaflet). Mr Walker's express evidence did not make it clear whether his figures took account of the fact that only parts of a carcase are used for McDonald's products but I think that they must have done so. His figures work out at only 180lbs of beef per animal, which accords with Dr Gomez Gonzales' evidence of the amount of deboned beef used from each animal.

It may be that there are other countries in the world where the national McDonald's operator takes a similar proportion of the countries's beef production.

However, despite the value of McDonald's custom to the beef rearing and dairy industry of the U.S.and the U.K. there was no basis on which I could find that either Plaintiff was in any position to change those industries' methods. It is trite to say that the cattle industry, including the dairy industry, was well established in both countries before McDonald's arrived. There was no evidence that either Plaintiff had any influence on its methods, and there was no evidence from which I could infer that it would have any effective influence, should it try to exert it.

I heard evidence about cattle rearing methods, dairy and pure beef, such as the early removal of calves from their mothers or the incidence of mastitis or lameness in dairy cows and the evidence is set out in the transcripts and documentation referred to, but I do not propose to analise or evaluate it here because I do not consider that either Plaintiff can be judged responsible for what goes on in the cattle rearing industry even if it were to be judged cruel in some respects, which was firmly contested..

There was in fact no evidence that any cattle whose meat went to make McDonald's food products, spent their lives in the entirely artificial conditions of huge factory farms, with no access to air or sunshine and no freedom of movement. The Defendants contended that cattle which were raised in feed lots had restricted movement but the evidence on this point conflicted. The use of feed lot beef for McDonald's products is limited and there was no evidence that any beef for McDonald's came from feed lots where movement had been particularly restricted.

Responsibility for methods of slaughter is a different matter. McKey in this country takes deboned beef from a number of abattoirs. The number of U.S. abattoirs from which the First Plaintiff's beef pattie suppliers take deboned beef must be much larger. But McKey supervises the treatment of cattle at those abattoirs, to some extent. It does so on the Second Plaintiff's behalf. The McKey "Meat Supplies Audit Form" does not have any provisions for the conditions under which animals are reared but it does have a number of matters to be checked at inspection of abattoirs. Some relate to animal welfare, although the majority relate to food safety, and I am prepared to find that it could influence practices in those abattoirs on the Second Plaintiff's behalf. The Second Plaintiff did not argue that it was not so. The First Plaintiff did not argue that it was not so in the U.S., but I heard little about specific slaughtering practices in the U.S.

The detailed evidence concerned Midland Meat Packers Ltd (MMP) and Alex Jarrett Ltd which are two of the abattoirs which supply McKey in this country.

Dr Gregory visited Midland Meat Packers on the 21st April, 1993. The Plaintiffs also called Mr Timothy Chambers who had been with MMP for twelve years since taking his 'A' Levels. He had been its Quality Assurance Manager for five or six years since he gave evidence in March,1995. He was responsible for seeing that all animals welfare and food safety requirements were met. He was an impressive witness.

There was some criticism that cattle had to walk down ramps from the lorries which delivered them to MMP. Mr Chambers said that MMP was trying to get away from unloading cattle down ramps, because the animals preferred to walk horizontally, but he found it difficult to say whether cattle were "not very keen", on walking down slopes, and I cannot believe that it is "cruel" to make them do so.

I have already referred to the question of the use of electric in relation to pigs which are smaller and generally more excitable than cattle.

In my judgment the use of electric goads on cattle is not cruel, even though Mckey's Meat Supplier Audit Form in relation to slaughterhouses says: "Use of goads prohibited".

Mr Lyman was asked about the statement in the leaflet that "in the slaughterhouse, animals often struggle to escape". He said that he had seen animals which were terrified and escaped, partially at least, at abattoirs. He had seen cows become very agitated before going into the stunning pen. He said that the animals were terrified at the slaughter plant. As they approached the kill floor "you see the terror in their eyes". He appeared to attribute this in part to one animal seeing the one in front of it being stunned, but also to the blood and the smell.

Dr Long said that the stunning box at slaughterhouses was made of metal. There was a lot of noise. A gate came down behind the animal which went into the stunning box. The animal then backed into the gate causing more noise. The noise and commotion startled and frightened the animal behind even though it could not see what was happening.

Dr Gregory said that he did not see any cattle struggling to escape at MMP or Jarretts. Nor did he see any frantic behaviour. Mr Chambers said that at MMP cattle were led through a series of small pens before they actually reached the "race" leading to the stunning pen. It was not correct to say that animals often struggled to escape. Ms Hovi did not speak of animals struggling to escape at Jarretts.

Nevertheless both Dr Gregory and Dr Gomez Gonzales said that animals found unfamiliar environments stressful; it was common ground that cattle did not like noise, and Dr Gregory said that it was not uncommon for cattle to be reluctant to go into the stunning pen even though they could not see what happened to the animal ahead. Dr Gomez Gonzales said that the door to the cattle stun pen normally prevented one animal seeing what was happening to another.

I have no doubt that many cattle become frightened as they approach the stunning pen, however well run the slaughter process is, but I am not satisfied that they often struggle to escape or that they become frantic. Despite Mr Lyman's evidence I do not consider that, save perhaps on isolated occasions they become frantic as they watch the animal before then being prodded, beaten, electrocuted and knifed although that may happen in some abattoirs on some occasions, I cannot relate it to cattle used for McDonald's products, on the evidence which I have heard.

The practice at MMP and Jarretts is to stun the cow, heifer or steer with a captive bolt gun or pistol. A cartridge in the gun explodes a bolt against its skull. If this is done properly the animal is rendered instantaneously and deeply unconscious. This appears to be the general stunning practice in the U.S. and U.K. The evidence concentrated on the efficacy of captive bolt stunning at MMP and Jarrett.

Dr Gregory gave detailed evidence on this question. He explained that the accuracy of shooting and the calibre or grain of the cartridge were important together.

He said that the accuracy of shooting at MMP was not particularly good but in spite of this, and probably because a high-powered cartridge was being used, the stunning was observed to be effective. In terms of all of Dr Gregory's exacting criteria all ten cows observed and examined by Dr Gregory at MMP were perfectly stunned.

At Jarretts one of the twenty-seven animals which he observed being stunned failed to meet one of Dr Gregory's criteria for perfect stunning in that it was reshot after collapsing upon the first shot. That could mean that the slaughterman was not satisfied with his first shot or that he observed signs that it had not been properly stunned or that the position of the hole in the animal's skull was not appropriate for inserting the pithing rod which was used to lacerate its brain and brain stem in order to protect the man who then stuck it (cut its throat) from convulsive, unconscious kicking. Doubt as to whether the correct position for the pithing rod had been achieved might mean doubt as to whether the first bolt had been shot in the right place for perfect stunning, but Dr Gregory did not ask the slaughterman why he fired a second shot. If there is any doubt it does no harm to give a repeat shot, he said.

Ms Hovi did not criticise stunning practices at Jarretts and I could see no real risk of cruelty to the animals at either MMP or Jarretts through inadequate stunning.

In 1987 Dr Gregory did a survey of the efficiency of stunning methods in twenty-seven beef abattoirs in England and Wales. Seven of them supplied Mckey. He said that the proportion of animals showing a less than perfect stun by his criteria was 4.5% at the Mckey suppliers and 8.9% at the other twenty, but he did not give evidence of pain or distress from the less than perfect stuns.

Dr Gregory did not observe any cattle having their throats cut while conscious at MMP or Jarretts. There was no evidence, that I recall, that any of the cattle seen by Dr Gregory in 1987 had their throats cut while conscious.

In October,1990, the Bournemouth Advertiser published an article reporting London Greenpeace's forthcoming Day of Action against McDonald's. It quoted allegations that one third of cattle subjected to the captive bolt method of stunning were not stunned but stood grievously wounded and fully conscious while the gun was reloaded. In February,1990, the Second Plaintiff's solicitors wrote a letter to the newspaper's editor, which said that McDonald's did not approve of the captive bolt method or of that or other "similarly cruel practices". This letter was clearly written on a false basis and the solicitors must have been misled by whoever gave them instructions for the Second Plaintiff, possibly on the basis that if the practice was cruel the Second Plaintiff could not be involved or seen to be involved. However this may be, I do not consider that the solicitors' letter can be taken to be an admission that the captive bolt system of stunning is a cruel practice. It certainly would be cruel if it was so badly executed that one third of cattle subjected to it were grievously injured but remained conscious, as the newspaper article suggested. But there was no evidence that this was the case at all, let alone so far as cattle destined for McDonald's were concerned.

Electric stunning of cattle is practised in some countries. Dr Gregory said that one form of electric stunning of cattle which is prevalent in Russia and Eastern Bloc countries involves holding a probe to the animal's head so that current flows through the animal to its feet. Dr Gregory would say that the method was inhumane in the way he has seen it practised. It appeared from enquiries made by Dr Gomez Gonzales' department that there was electrical stunning of cattle for McDonald's products in Russia, but the evidence did not reveal just how it was practised and how efficiently.

Dr Gomez Gonzales said that there were factors in his department's questionnaire about slaughtering in Russia, which did give him cause for concern. The noise level prior to slaughter was not controlled. The animals did not have access to clean water or fresh air, nor were they rested prior to slaughter. Conditions in Russia, he said, were not the best. Most meat for McDonald's in Russia came from Europe, but McDonald's did use a small amount of Russian meat and they had a commitment to develop the meat industry there.

It appeared from the answers to the questionnaire sent to various countries by Dr Gomez Gonzales' department that noise levels prior to slaughter were not controlled at McDonald's suppliers in Hungary or Turkey or at Coope Montecillor in Costa Rica, but this may just have meant that the person answering the questionnaire was accepting the obvious, that abattoirs are noisy places.

Dr Gomez Gonzales agreed that the Halal method of slaughter precluded prior stunning, but there was no real investigation of how this related, if at all, to McDonald's in countries where it is practised.

In my judgment the only practice in the slaughter of cattle to be used for the Plaintiffs' products, established by the evidence which I have heard, which causes the cattle some distress is the noisy, unfamiliar environment of the abattoirs themselves. I am not, however, satisfied that this amounts to cruelty and I do not consider that the Plaintiffs can be said to be culpably responsible for it. I do not believe that it is something over which they have any control, whatever their share of the beef market.

The practices which I have found to be cruel appear to have prevailed throughout the 1987 to 1990 period of relevant publication of the leaflet and my ultimate conclusions so far as justification of the defamatory message of this part of the leaflet complained of is concerned, are as follows.

Laying hens which are used to produce eggs for the First and Second Plaintiffs spend their whole lives in battery cages without access to open air or sunlight and without freedom of movement. I do not find the lack of open air or sunshine to be cruel, but the severe restriction of movement is cruel and the First and Second Plaintiffs are culpably responsible for that cruel practice.

Broiler chickens which are used to produce meat for the First and Second Plaintiffs' food spend their whole lives in broiler houses without access to open air or sunshine, I do no find this in itself cruel. However, they spend the last few days of their lives with very little room to move. The severe restriction of movement over those last few days is cruel and the First and Second Plaintiffs are culpably responsible for that cruel practice.

A small, but not insignificant proportion of the sows which produce pigs which contribute to the supply of pork for the Second Plaintiff's food in the U.K. spend virtually the whole of their lives in dry sow stalls, with no access to the open air and sunshine and without freedom of movement. I do not find the lack of open air or sunshine to be cruel, but the severe restriction of movement is cruel and the Second Plaintiff is culpably responsible for that cruel practice.

Some pigs which are used to make the Second Plaintiff's food in the U.K. spend the whole of their lives indoors and all or virtually all of them spend a significant part of their lives indoors. The situation is probably the same for the pigs which are used to make the Second Plaintiff's food in the U.S., I do no find this to be cruel, however.

It was not shown that cattle which are used to produce the Plaintiffs' food spend any significant part of their lives without access to open air and sunshine and without freedom of movement.

Nevertheless in my judgment the restriction of movement of laying hens throughout their lives in the U.K. and the U.S., and of broiler chickens in their last days in the U.K. and the U.S., and of some sows for virtually the whole of their lives in the U.K. is quite enough to justify the first particular charge of culpable responsibility for cruel practices in the way some of the animals spend their lives.

Although many cattle are frightened by the noise and unfamiliar surroundings of the abattoirs in which they are slaughtered and some cattle are urged on by electric prods, the charges that animals waiting to be slaughtered often struggle to escape and that cattle waiting to be slaughtered become frantic as they watch the animal before them in the killing-line being prodded, beaten, electrocuted and knifed, are not justified so far as animals which are used to produced the Plaintiffs' food are concerned.

It was not shown that cattle or pigs which are used to produced the Plaintiffs' food are frequently still fully conscious when they have their throats cut. A proportion of the chickens which are used to produce the First and Second Plaintiffs' food are still fully conscious when they have their throats cut. This is a cruel practice for which the Plaintiffs are culpably responsible. The proportion of such chickens is very small, but the number of chickens is so large that the allegation that animals are frequently still fully conscious when they have their throats cut is justified.

Although not all the particular charges are justified, in my overall judgment those that are justified, relating to the restriction of movement of battery hens, broiler chickens and chickens who have their throats cut while still fully conscious, are sufficient to justify the general charge that the First and Second Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food.

There are other cruel practices affecting chickens which are used to provide the Plaintiffs' food; calcium deficit resulting in osteopaenia in battery hens, the restriction of broiler breeders' feed with the result that they go hungry although bred for appetite, leg problems in broilers bred for weight, rough handling of broilers taken for slaughter and pre-stun electric shocks suffered by broilers on the way to slaughter. Those matters, for which the Second Plaintiff or both Plaintiffs are in my judgment culpably responsible, go to strengthen my view that the sting of this part of the leaflet to the effect that the First and Second Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food is justified, true in substance and in fact.

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