A Bhamra v Dubb (t/a Lucky Caterers) – personal injury and the violation of religious and ethical diets

It must be acknowledged at the outset that Bhamra v Dubb differs, to an extent, from an incident of deliberate spiking, as the case did not involve any intention to cause distress (or perhaps even to violate dietary requirements) and, as we shall discuss, intention on the part of the perpetrator is an important consideration. However, it is an instructive 21st century British case involving food contaminated with animal products, contrary to religious principles. A guest attending a Sikh wedding had a known allergy to eggs, but because some branches of Sikhism forbid the consumption of eggs, he assumed that he could safely eat all of the food provided at the celebration.^[20] Regrettably, Lucky Caterers served a dish of ras malai which had in fact been made with egg. The claimant suffered anaphylactic shock and died.

Both the judge at first instance and the Court of Appeal held the defendant liable in negligence. The Court of Appeal concluded that there was no general requirement incumbent upon professional caterers to warn customers that food products might contain egg, even though it was obviously not disputed that a certain percentage of the population are known to suffer from egg allergies. Nevertheless, the defendant was under a duty to take reasonable care to refrain from serving egg in order to avoid offending against Sikh principles. Precisely for this reason, wedding guests were entitled to expect the food provided to be free from eggs, and the defendant was liable for any harm which ensued from acting on the basis of that expectation.

B Tort of negligence

Commentators applauded the conclusion reached by the court, although had a mixed response to its underlying reasoning. As O’Sullivan^[21] observed, the factual paradigm in many respects mirrored Donoghue v Stevenson,^[22] the wellspring from which the modern tort of negligence flows. In both cases, the claimant suffered injury from a food product bought by a third party, and therefore could not seek a contractual remedy. A key distinction, however, was that Mrs Donoghue asserted that she had drunk ginger beer laced with rotting snail, which would reasonably foreseeably do harm to anybody’s digestion,^[23] whilst in contrast, the claimant in Bhamra v Dubb had eaten a wholesome meal which most people could consume without ill effects.

O’Sullivan criticised the Court of Appeal for asserting that the defendant had a duty of care to avoid offending against religious principles, and stressed that this kind of duty is simply not recognised in negligence.^[24] The key point for this commentator was that the defendant had led wedding guests to believe that the food would be egg-free, and it was reasonably foreseeable that individuals with allergies would relax their usual vigilance. There had effectively been a representation that the food would not contain certain ingredients, when in fact it did so, with tragic consequences. This was not a case of accidental contamination in a kitchen, but a defendant agreeing to provide food which conformed to certain characteristics, and failing to do this.

In contrast to O’Sullivan, Keren-Paz^[25] regarded the existence of a duty of care to avoid offending religious beliefs as a sound proposition, but did not deem it to be central to the case at hand. In his view, the issue was that even though the defendant understood that the menu choices were motivated by religious, rather than health considerations, this knowledge did not negate the fact that physical harm was a foreseeable consequence of failing to comply with the agreed constraints.^[26]

Sometimes individuals have mixed motivations for adopting a particular diet or lifestyle, and Keren-Paz gave the example of a vegetarian observant Jew having two different reasons to avoid McDonalds chips cooked in beef fat;^[27] in the real world, people rely on information to fulfil more than one purpose. Ultimately, in his analysis ‘the avoidance of allergy risk is an inevitable by-product of adhering to religious dietary restrictions, and therefore, a physical injury falls within the scope of risk which made the serving of eggs a breach of duty’.^[28]

When the arguments are distilled down, the essential point for present purposes remains the same. If religious or ethical standards are assured, and thus generate a reasonable expectation that food will be free from ingredients, then its supplier will be liable if the forbidden ingredients are present, and in fact cause harm. This is in harmony with the basic principles of negligence and is undoubtedly correct. If X informs Y that a situation is safe, when it is in fact dangerous, and Y suffers harm from reasonably relying on X, he will have an action in tort for the damage caused.^[29] If a claimant was induced to eat cheese made from cow’s milk by a false assurance that it was vegan, and suffered a reaction caused by a lactose allergy, then Bhamra v Dubb makes it clear that a claim for personal injury could be brought. Furthermore, if the knowledge that they had consumed dairy damaged the diner’s mental health, there would be the theoretical possibility of a claim for this hurt.

It is has long been uncontroversial that psychiatric harm is a recognised category of personal injury, provided that it is a type which a doctor can objectively assess and verify (the claimant must establish a recognised mental illness, as emotional distress alone will always be inadequate).^[30] Nevertheless, as the work of commentators like Teff shows, the courts are vigilant in monitoring any potential widening of the ambit of such litigation.^[31] A restrictive approach towards duty of care, as well as other elements of the tort, has been maintained in this context.

Consequently, an action for negligence would in principle be possible if a vegan was tricked into consuming an animal product and suffered clinical psychiatric harm as a result. However, in practical terms, the obstacles would be formidable: it would not be easy to establish a relevant duty of care, to demonstrate that the risk of harm was foreseeable, or to show that there was causation between spiking of the food and the mental illness which the claimant experienced. As Jones^[32] argues, establishing causation with psychiatric injury can be an uphill struggle, and Kennedy^[33] is correct to observe that differing scientific and clinical opinions compound the challenges faced by the courts in adjudicating on such matters.

C Wilkinson v Downton

Given that negligence would not be an easy claim, are there any alternative routes? There is a long history of cases involving nervous shock from ill-judged practical jokes, even where these have no physical element. In Wilkinson v Downton the defendant told Mrs Wilkinson that her husband had had a horrible accident and suffered two broken legs. Apparently, he thought that this would be funny. Mrs Wilkinson experienced a dramatic and severe reaction which incapacitated her and required medical treatment. An action on the case^[34] was successfully brought, and Wilkinson v Downton claims have survived into the modern law of tort.^[35]

However, it should be noted that the remit of such actions is very carefully guarded. In Rhodes v OPO,^[36] the majority of the Supreme Court found that there must be no legitimate reason for the words or conduct of the defendant and there must be an intention to cause severe distress. Crucially, mere recklessness about the consequences would not suffice. Furthermore, the harm inflicted must be diagnosable psychiatric injury, and Wilkinson v Downton is emphatically not a vehicle for obtaining compensation for hurt feelings. Nevertheless, in an instance where one party caused a vegan to consume animal products, and then took malicious delight on seeing the anticipated and intended horrified reaction of the victim upon learning what had happened, it is possible to conceive of a claim being brought if the reaction was so severe as to have an impact on the mental health of the victim.

In Rhodes, the Supreme Court was asked to adjudicate on the publication of an autobiographical book which might cause distress to a close relative of its author, and an injunction was being sought. Attempting to use the tort pre-emptively, as a means of preventing conduct, was in itself a new departure, and this novel context had profound implications for freedom of expression. In fairness, such weighty human rights considerations would not apply in the context of a cruel prank being played on an individual vegan. Limiting an author’s freedom to publish his or her life story is clearly a very different proposition from allowing a claim against someone who privately fed meat to a vegan for the satisfaction of witnessing their distress. Moreover, it is important to stress that Rhodes did not signal the death-knell for Wilkinson v Downton, but merely a refusal to expand it in a particular direction.

The biggest disadvantage to a Wilkinson v Downton claim is that shared with the tort of negligence, which is unsurprising since, as Réaume observes, the two torts are so closely intertwined that some commentators have regarded Wilkinson as simply being part of the development of the modern tort of negligence^[37] (but this is a debate which need not detain us here). The key point is that to bring either action a claimant must show objectively demonstrable personal injury for the purposes of English and Welsh law. The legal system recognises a right to personal safety,^[38] but safety does not equate to freedom from distress: what if the victim has not been injured in body or mind? A physically and mentally hale vegan who had been on the receiving end of a spiking incident could not bring either claim.

Furthermore, the underlying rationale behind this line in the sand provides a powerful reason not to attempt to expand Wilkinson v Downton any further in this direction. At present a claimant must show objectively verifiable harm, and either an intention to cause such harm, or recklessness as to whether or not it ensued.^[39] (It is probable that the thorny issue of intention will be revisited in future cases in this area, as its scope remains doubtful in relation to recklessness at least). So what alternative avenues are at the disposal of individuals who unwittingly through deception consume food which offends their principles, but does not inflict assessable damage?

D Solutions proposed by Weaver

In a short, but thorough and thought-provoking article, Weaver^[40] put forward a number of possible paths open to individuals who unknowingly consumed horsemeat or pork in the food contamination scandals involving Ikea and other businesses.^[41] He quite rightly concluded that none of the routes offered a perfect solution in all instances, but it would be useful to reprise and assess his findings.

E Trespass to the person

As we have seen, the fundamental stumbling block in utilising negligence in cases of ethical spiking is the absence of harm. In contrast, as the masterly Tony Weir observed when comparing trespass and negligence: ‘The role of the tort of trespass is quite different. Its very function is to protect and vindicate the basic rights of citizens against deliberate, even well-meaning invasion, whether or not any damage is caused’.^[49]

Essentially, an ‘invasion of basic rights’ is precisely what the potential vegan claimant envisaged above would have faced. This distinguished scholar was referring to rights recognised by the Common Law, long before human rights in their modern form had taken shape. Nevertheless, there is of course overlap, as would be expected, given that the Common Law tradition was one of the many streams which fed into the contemporary human rights framework.^[50] As previously stated, Common Law does not compensate for hurt feelings, but the hypothetical vegan claimant here is not in reality complaining first and foremost about the emotional impact of being surreptitiously fed animal produce. Indeed, to analyse the situation in those terms is to risk trivialising it, because what is being complained of is the very tangible, indeed physical, interference with his or her body, and the autonomy to decide what substances should go into it.

Trespass to the person is an ancient element of the legal system, and the lightest of touches is capable of amounting to a battery^[51] if it is not consensual or in the course of ordinary social interaction.^[52] There was at one stage a suggestion that the touching must be ‘hostile’,^[53] but it is now universally accepted that this is not the case.^[54] As Weir points out, a kiss is a battery if it is unwanted by the recipient, even if the kisser’s intent is not hostile.^[55]

In this regard, the law remains as it was set out by Blackstone (and had been since long before his time):^[56]

The least touching of another’s person willfully, or in anger, is a battery; for the law cannot draw the line between degrees of violence, and therefore totally prohibits the first at the lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.

It might be objected that there is no actual touching in this instance, and that the courts have refused to extend the tort of battery to situations which do not involve physical contact. For example, in the famous case of Kaye v Robertson,^[57] the court was not willing to find that flash photography of a patient in hospital constituted battery. However, it is important to note that in that instance, there was no bodily contact with the plaintiff whatsoever, and as Foster argues, the right which Kaye was trying to assert was the right to privacy. He was not concerned with protecting his corporeal integrity or autonomy over his own body but, entirely understandably, did not want photographs taken without his consent whilst he was critically ill to be plastered all over a national newspaper.^[58] In sharp contrast, in the case of the vegan consuming spiked food, the person on the receiving end of the deception physically consumes the animal product. It would seem absurd to assert that a pat on the hand could constitute ‘meddling’, whereas being caused to involuntarily swallow meat could not. The latter is, without a shadow of a doubt, a far greater bodily invasion.

Nevertheless, it cannot be claimed that the application of battery to the factual paradigm under consideration is wholly straightforward. Two issues in particular must be resolved if this mechanism is to provide a solution: firstly, the indirect application of force in relation to the act of battery, and secondly, the question of intention on the part of the defendant, coupled with the related matter of consent as far as the claimant is concerned.

A Convention rights

One right to consider where the violation of religious belief or ethical principle is concerned is undoubtedly art 9, which exists precisely in order to defend freedom of conscience and religion. Not only does it confer an absolute right to hold beliefs upon fundamental matters, it also provides that the right to manifest such beliefs can only be limited in so far as is prescribed by law and necessary in a democratic society. It is now well established that vegan beliefs can attract the shield of art 9, and that the avoidance of animal products is the most obvious manifestation of such beliefs.^[87] However, it is worth pausing to ask whether all vegans would have access to this article.

In a recent family law case concerning a mother who opposed vaccinations for her children, in part on the basis of her vegan ethical views, the court asserted that veganism ‘is not a religion, it is a lifestyle’.^[88] Furthermore, courts have explicitly acknowledged that^[89] people become vegans for a wide variety of reasons, including health concerns, medical needs, ethical issues and religious convictions. Consequently, there are some doubt as to whether all professed vegans could rely upon art 9, or only those for whom a vegan lifestyle is in a fact a manifestation of a qualifying belief.

The House of Lords in R (Williamson) v Secretary of State for Education and Employment^[90] laid down guidance on the types of beliefs which would qualify for protection under art 9. A requisite level of seriousness and importance must attach to them, they must be on a fundamental matter and they must be sufficiently coherent. Nevertheless, the court also acknowledged that religious beliefs in particular did not need to be rational or logical in objective terms, as that is not necessarily always the nature of faith. This is in harmony with the general approach taken by the Strasbourg Court in recognising that the article is engaged,^[91] and also approved by commentators who affirm the inherent inappropriateness of legal frameworks treating religious practice and identity, as phenomena which can be verified or dismissed according to external criteria.^[92]

Bearing this in mind, it would appear very difficult to justify regarding non-religious matters of belief or conscience within the ambit of art 9 as different from religious ones. The text of the article makes no distinction between categories of beliefs, and to demand that non-religious applicants clear a higher hurdle to access protection would, in itself, be discriminatory. As a result, it is reasonable to assert that non-religiously motivated vegans would not be required to demonstrate that their understanding of veganism could be objectively justified in abstract intellectual terms, in order to qualify for protection. Thus whether a particular vegan chose to consume honey^[93] or feed meat to obligate carnivore pets would not have any bearing on their access to art 9, irrespective of debates within veganism and wider society about the internal coherence of such decisions.

However, Temperman demonstrates that an applicant wishing to rely on art 9 must also be able to assert that the underlying belief is held with sincerity.^[94] The genuineness of a belief is very different from its logic or lucidity, and religious and non-religious beliefs alike must be held in earnest if art 9 is to apply. It is interesting how this may play out in a context like veganism, where some individuals may elect to avoid animal-products on some occasions, but not others. Nevertheless, given that art 9 uncontroversially encompasses the freedom to change religious beliefs, there is no reason to assert that ‘part-time’ vegans would be excluded from its ambit.^[95] The requirement of genuineness exists to filter out applicants who may be dissimulating for ulterior motives, but not to demand unwavering ideological commitment, as this would undermine the very liberty which it seeks to protect. In terms of interests recognised by the legal framework, the freedom is to not simply hold beliefs, but to discard and develop them without adverse consequences.

However, in the recent High Court decision in Re M,^[96] the court appeared to add a further gloss in relation to beliefs passing through the filter of art 9. The appellate court expressed doubts about whether beliefs, which were incompatible with the values of a liberal democratic society, would meet the threshold for protection,^[97] but it should be stressed that the remarks were obiter and by no means unproblematic. In fact, if only views which conform to the values of mainstream society are shielded by art 9, it is difficult to see how it can be expected to protect vulnerable, and perhaps unpopular, minorities from oppressive or unfavourable treatment. As Rubenstein^[98] argues, shielding minority groups from majoritarian tyranny is an accepted obligation for a liberal democratic State, and both domestic courts and Strasbourg have repeatedly recognised the application of art 9 to non-liberal beliefs.^[99] We would not seek to build too much on obiter dicta transplanted from its original context, and in any case, there is certainly no suggestion that veganism poses a challenge to liberal democratic society, but for present purposes it is important to note this recent and clear judicial message that not all beliefs will be simply waved through the gateway of art 9. Courts will scrutinise the factual context before them, and certainly will reject some attempts at asserting qualifying beliefs, as Jones v UK also demonstrated.^[100]

Yet, it remains true that where a positive belief is asserted, courts rarely test its robustness without some tangible reason to either be suspicious, or err on the side of caution. In Vartic v Romania,^[101] the Strasbourg Court was unsympathetic to the State’s attempt to assert that a prisoner was simply angling for better food in demanding a special religious diet in conformity with his Buddhist faith, even though it was admitted that his motivation partly related to his health. It is significant that the beliefs subjected to doubt in Re M^[102] were being put forward as the foundation for discriminatory behaviour against a transgender individual and their minor children. Moreover, the context was material to the way in which the court analysed the beliefs at hand and unquestionably a situation involving an adult voluntarily abstaining from animal-products, and harming nobody in the process, would be dramatically different. There is nothing about veganism in general terms which would actively invite exceptional scrutiny from judges.

Even so, there must logically still be some limits in accessing art 9 for vegans motivated by health concerns, rather than ethical ones. Otherwise, parity of treatment would logically demand that individuals who chose to follow diets free from gluten or processed sugar or low in cholesterol could request that this be catered for by public authorities, on the basis of a right to freedom of religion and belief. As discussed below, there may be alternative Convention rights at play in situations like these, but not the one targeted at defending ideological liberty.

Notwithstanding, even accepting that the borders of art 9 are not wide enough to encompass all vegans in all circumstances, there is reason to anticipate that the boundaries will be generously interpreted. It is uncontroversial that a very large number of vegans have followed that pathway in deference to deep personal convictions, and as such entirely properly attract the safeguards of human rights law.

Furthermore, public authorities would do well to take cognisance of this reality, as Fouzder demonstrated in relation to a recent controversy involving an NHS Trust.^[103] An advertisement had been placed for an occupational therapist in an eating disorders service and stated explicitly that any applicants who adopted vegan diets would be excluded from consideration. This was challenged by the International Vegan Rights Alliance, as well as Barbara Bolton, a solicitor and vegan activist. The Trust hastily backtracked and amended the advertisement^[104] significantly, by removing the caveat altogether, rather than attempting to differentiate between various categories of vegans. Bolton correctly observed that the previous advertisement was discriminatory, and that veganism has been consistently recognised as a protected belief for the purposes of international and domestic law. It is evident that in general terms, discrimination against vegans will engage human rights and also fall foul of equality law,^[105] and that even if a subcategory of those adopting a vegan lifestyle may have difficulty accessing the shield of art 9, the default assumption must be that it will be engaged where vegans are concerned.

In light of all of this, there is reason to assert that the art 9 rights of vegans are engaged in relation to assuring that their ethical dietary choices are respected whilst eating in public. The same would, of course, be the case in respect of Jews, Hindus, Buddhists, Muslims and any other faith group with doctrinal food restrictions. There is no controversy about the premise that the UK legal framework post 1998 recognises freedom of belief as a fundamental interest demanding protection.

Nevertheless, this is not the only Convention article which has relevance in this context, as there is also the right to private and family life.^[106] As we outlined at the beginning of our analysis, we are also concerned with an individual’s interest in bodily autonomy, in deciding what they do or do not wish to consume. Both Strasbourg and the domestic courts have consistently taken an expansive approach to art 8, and the interests which come within its ambit. It is accepted that the right encompasses the freedom to make decisions in a medical context, relating to the treatment of one’s own body,^[107] and interference with corporeal autonomy, in the form of temporary detention and forcible touching of the kind involved in the use of police stop and search powers, may be sufficient to infringe its terms.^[108] It is, therefore, reasonable to assert that a court would be willing to conclude that causing an individual to consume foodstuffs in opposition to their personal choices would interfere with their right to privacy as bodily invasions are, after all, even more intimate than violation of the home. Moreover, access to art 8 is not dependent upon any qualifying belief or identifiable principle, so applicants would not have to clear hurdles comparable to those set out above in relation to art 9.

Taking the foregoing into account, it can be asserted with confidence that the victims of spiking incidents of the kind under consideration would be able to demonstrate that their arts 8 and 9 rights had been engaged. Furthermore, where Convention rights are interfered with, it is not necessary for an applicant to show that public authorities are responsible for the relevant infringement, because the State has an obligation to ensure that individuals have appropriate legal recourse if their rights are violated or curtailed.^[109] It goes without saying that this does not automatically mean that the rights in question will be vindicated in all cases, as neither art 8^[110] nor art 9^[111] confer absolute freedoms, and in fact on many occasions Convention rights must necessarily be balanced against competing rights and societal interests.^[112] However, national authorities must be able to show that an appropriate balancing exercise has been carried out, and it is exceedingly difficult to imagine such an assessment properly concluding that the denial of effective legal protection and redress for individuals, when faced with a malicious spiking incident, was in fact a justifiable limitation of their rights. Strikingly, such a stance would serve no obvious benign purpose, and it would actively undermine some of the legitimate societal aims set out in the qualifications contained in arts 8(2) and 9(2) respectively, for example, advancing public safety, preventing disorder and protecting order.

Bearing all this in mind, there is clear pressure stemming from the Convention to award victims of this type of spiking some potential remedy for their violated interests, in terms of both freedom of belief and bodily autonomy. Having reached this conclusion, we are now bound to ask by what mechanisms the current English and Welsh framework provides for the practical defence of these rights. In fact, the causes of action which can currently be identified are indivisibly linked with the concept of Common Law rights, as the former can only become understood and made incarnate through the latter.

B Common law rights

As previously discussed, it is well established that in England and Wales human rights are derived from a variety of sources.^[113] The rights recognised by Common Law are primarily manifested, as well as vindicated, through private law remedies,^[114] and whilst it is true that, as Corbett maintains, there is no universal or cohesive underlying theory of tort law, some overarching principles are identifiable.^[115] It should be stressed that the nature and scope of Common Law rights remains a controversial topic, and there is by no means universal acceptance of the concept of free-standing rights existing independently of remedial torts, and championed by authors like Stevens.^[116] Nevertheless, as the Supreme Court’s recent declarations in the R (UNISON) v Lord Chancellor case have reminded us it is impossible to deny that one key function of tort is to uphold the rule of law through the defence of individual and collective rights.^[117]

It is often the case that, as Moreham argues, Common Law rights march in step with those conferred by the Convention and Human Rights Act,^[118] and as a result, it is not always necessary for judges to disentangle whether and when they are responding to a requirement imposed arising from the domestic legal setting, rather than the international instrument. Moreham was writing in the context of the right to privacy, and how breach of confidence branched out from its original ambit, of preventing disclosures of private information revealed within confidential relationships, to a far more expansive remit. The impulse from art 8 was pushing in the same direction as the organic evolution of Common Law, and consequently, the driving forces were effectively fused.

As Hartshorne^[119] observes, the nature of our juridical system means that Common Law evolves, incrementally, and by stepping-stones. However, judges do not have the capacity to conjure solutions to perceived problems from thin air nor to spin legal gold from straw, but must work within the confines of pre-existing materials. The mere fact that they recognise a need derived from a Convention right will not, in itself, allow them to formulate a convenient response, unless there are suitable existing principles with which to work. This allows for what Phillipson terms ‘weak horizontal direct effect’^[120] building on the earlier work of scholars like Hunt.^[121] In other words, courts would not give direct effect to a Convention article in the strict sense, but would allow it to mould their interpretation of Common Law. For our purposes, it is consequently reasonable to suggest that the traffic between both arts 8 and 9 and Common Law would incline judges towards moulding a solution from trespass if the opportunity presented itself.

Even so, whilst this is an important point to appreciate, it is also vital not to imagine that the Common Law rights are fused with, subsumed within or derived from Convention rights (or indeed rights flowing from EU law when these may be applicable as well or instead). Significantly, in UNISON^[122] the Supreme Court analysed the right to access to justice, and was at great pains to stress that the Common Law right was independent from the rights generated by art 6, as well as the requirement to provide an effective remedy in respect of EU law. The Common Law right was a stand-alone concept, which would survive were the others washed away. Lord Reed even stressed that whilst the Common Law right was subject to a principle which functioned very much like proportionality, this was distinct and an example of convergent evolution by two legal frameworks.^[123]

This is a crucial consideration in relation to the Common Law right with which we are most directly concerned for present purposes: the right to bodily integrity. As Herring and Wall convincingly demonstrate, this is a specific right recognised by the English legal framework,^[124] and as they note,^[125] Hale LJ described it as ‘the first and most important of the interests protected by the law of tort’.^[126] This is undoubtedly true, and the reason why criminal cases are still relevant to our present discussion is that trespass to the person is such an ancient facet of our legal system that it pre-dates the separation of civil and criminal law.^[127]

In a nutshell, the right of individuals to determine what happens to their body is a basic and long-standing principle within the English and Welsh legal system,^[128] and it is difficult to deny that forcing a vegan to not merely touch, but actually ingest, animal products, is a dramatic affront to their corporeal self-determination.

A Article 109 of the Criminal Code

As stated, this provision gives persons who have been harmed by the criminal behaviour of another the right to bring an action for compensation.^[131] As a result, in situations where in the UK paradigm civil and criminal liability would run in parallel, for example, where the defendant launches an unprovoked physical assault on the victim claimant, in Spain civil liability arises directly out of the criminal act or omission. Furthermore, there is scope for relatives of the primary victim and also third parties who have been affected to bring an action.^[132] This caveat is extremely important, as it would circumvent some of the difficulties which arise in an English and Welsh context, where the purchaser of food might have a contractual remedy, but others who consumed it would not have this recourse.

Article 109 functions as a piggy-back provision, and requires a criminal offence to be present in order for it to be engaged. This overview of the potential articles which might be triggered in this context reveals a very different focus between the English and Spanish systems in the conception and protection of bodily autonomy and freedom of belief. There is no parallel concept to common assault in Spanish criminal law, and touching another person in a non-sexual way which causes no physical harm is not an offence, meaning that art 109 cannot bite merely for non-consensual, intentional touching. We must, consequently, consider what kind of substantive provisions might apply in the scenarios we are considering, opening the door to an art 109 claim.

The first possibility is art 282 of the Spanish Criminal Code, which criminalises the making of false claims about goods or services, where these cause harm to customers. This harm need not be material or economic, and could, as a result, include the distress caused by the realisation of having consumed food which violated personal beliefs or ethics.^[133] Another similar, but distinct, possibility would be art 363, which deals with the trading in comestibles which are harmful to health. The thrust of this article concerns food hygiene, and it might be challenging to interpret it as covering products which were not physically toxic, but it does expressly include the traffic of ‘corrupted’ goods.^[134] Bearing this in mind, the question would be whether a court would be prepared to interpret ‘corrupted’ to encompass doctrinal, rather than physical corruption.

It should be highlighted that these provisions are aimed primarily at protecting individuals from bodily harm, rather than defending corporeal autonomy. Nonetheless, if an expansive definition of harm is adopted, victims would benefit from fairly robust protection afforded by art 109, and possibly also art 282 of the same Code. Given, as we have noted, that there is also a provision which brings injured third parties within these parameters, the complexity brought about by privity of contract in a UK setting does not arise. In addition, art 120 imposes something akin to vicarious liability, rendering employers and others accountable in civil law for the crimes of their workers or agents. So, a business owner could not escape the obligation to pay compensation by arguing that their employees perpetrated the contamination, although, as with any form of vicarious liability, there will be scope for uncertainty about when an individual was or was not acting for another.^[135]

Nevertheless, there remains the troubling issue of malicious individuals who are not in any kind of commercial relationship with the victims. What about the stranger who, in an opportunistic or perhaps even premeditated fashion, targets someone for this form of abuse, motivated by either personal or collective hatred? It is here that the difference in the underlying values of the two systems is most marked, and arguably too, this is the most likely scenario in the ordinary course of events.

Generally speaking, businesses are keen not to cause dissatisfaction, much less distress, to their customers.^[136] So, we must focus on the protection of individuals from mischievous interference by strangers, and in this regard, the most promising provisions in the Spanish setting are targeted not at bodily integrity, but at freedom of belief. As previously stated, the Spanish Criminal Code does not have a conception of bodily integrity which imposes a general prohibition on touching in the absence of injury, a sexual element or associations with domestic abuse^[137] and, consequently, there is nothing directly analogous to common assault in criminal law and battery in the English and Welsh tortious context. As a result, outside of the commercial sphere, we are driven to look at provisions protecting religious freedom if we are to find a route to claim under art 109.

In contrast with bodily autonomy, where the English system takes a more expansive view of protecting the interest, the Spanish setting adopts a more focused approach to safeguarding and protection in relation to freedom of religion.^[138] Whilst the English framework tends towards showing a supportive stance to the practice of religion and manifestation of conscience,^[139] it does not have any overarching provision criminalising impeding such activities. In certain circumstances, a particular form of hate crime may be applicable,^[140] but molesting or hindering a person or group of people from expressing their beliefs is not proscribed as an offence in its own right.

This position is striking when juxtaposed with the Spanish Criminal Code, which specifically outlaws impeding religious practice of others, particularly via arts 522–523,^[141] and it is difficult to find many more unpleasant and dramatic interferences than deliberately spiking a person’s food with material known to be abhorrent to their belief system. Thus the Jewish, Muslim or Hindu victim of this kind of behaviour has a clearer and more sharply defined path to a remedy than is currently the case in England and Wales.

Regrettably though, there is a sharp sting in the tail. As the work of Martínez-Torrón demonstrates,^[142] these provisions undoubtedly cover atheists, agnostics and humanists, and this position is well supported by case law.^[143] However, it is uncertain whether those adopting veganism for ethical reasons not tied to religion could access this protection. The text of the Criminal Code itself suggests not, as the reference to religious beliefs is clear. If tested, a court might nevertheless be prepared to construe these provisions as covering other convictions under the ambit of art 9, but it would be difficult to suggest any obligation on the part of a Spanish court to do this, flowing from domestic, EU equality law,^[144] or the provisions of the ECHR.^[145] Neither the wording of the legal instruments nor judicial pronouncements in case law imply that legislation targeted at protecting religious freedom must encompass all forms of freedom of conscience.

Another alternative avenue might be potentially via art 173, which deals with ‘torturas y otros delitos contra la integridad moral’ (torture and other crimes against moral integrity).^[146] This could, theoretically, be applied in conjunction with the provisions of art 22.4, which lists hatred or prejudice based on a number of characteristics, including religion or belief, as an aggravating circumstance of a criminal offence.^[147] The problem, however, is that the threshold between strangers is intended to be a very high one. The law distinguishes between torture, and other forms of degrading treatment, and only torture is criminalised between strangers, whilst lesser forms of abuse require a concrete, pre-existing relationship with a person or a place, applying in an employment or domestic context. Deeply unpleasant and distressing though tampering with a person’s food undoubtedly is, it is hard to imagine that it could be construed as ‘torture’, when this concept is explicitly distinguished from degrading treatment more generally. Therefore, in our view, these provisions also would not avail.

All in all, it appears that whilst religiously motivated vegans are well served by these provisions, those driven by ethical concerns may struggle to access the protection in the Spanish context. Furthermore, individuals who choose to be vegan for the benefit of their health will clearly be excluded completely.

As a result if a malicious individual contaminated a non-religious vegan’s food with meat juices, and it did them no harm, the criminal law would not readily provide redress. Would the Civil Code by any more promising?

B Article 1902 of the Civil Code

As we have discussed, this second avenue applies to situations where the Criminal Code does not extend. Article 1902 is broadly drafted, and simply requires a defendant to pay reparation where he or she has caused damage to another party, either by fault/intention or negligence. The text of the Civil Code does not itself define what is meant by damage,^[148] but as Medina Alcoz argues, case law has demonstrated that it includes what within the Spanish system is termed ‘moral damage’.^[149] Unfortunately, as we have already seen, and as authors like Sánchez González^[150] and also Díez-Picazo^[151] eloquently demonstrate, the ambit of moral damage is by no means easy to pin down in the Spanish context. Moreover, it is undeniable that the concept continues to evolve, both in Spain itself and other settings which have been influenced by this paradigm, and the almost inevitable consequence of this is its wide ambit.^[152]

The inclusion of damage for emotional distress is not per se problematic and, although no precedent exists, it would seem reasonable to assert that feelings of trauma arising from a deliberate and malicious interference with the victim’s liberty of conscience and bodily integrity could in principle come within the auspices of art 1902. Yet, the extent of its reach, and the level of compensation which would be awarded in this novel context are by no means clear, and it is difficult to escape the conclusion that whilst the position of those following religiously determined diets is well protected, the safeguards on offer for other victims of ethical contamination are weaker in comparison. Ultimately, the more conservative interpretation of bodily autonomy in Spain is one of the reasons for this and, combined with the failure of the Criminal Code to place non-religious matters of conscience on an equal footing with religious ones, vegans motivated by factors other than faith are comparatively exposed.