Food for thought

The Court of Appeal recently gave guidance as to the principles to be applied when considering the imposition of a Hygiene Prohibition Order under food hygiene regulations. Adam Pearson analyses the ruling.

The food hygiene standards of food businesses and food business operators are regulated by the Food Hygiene (England) Regulations 2006, which implement European legislation in England. Regulation 17 of the Food Hygiene (England) Regulations 2006 creates the offence of contravening or failing to comply with a Community food safety requirement as specified in Schedule 2 of the Regulations.

In short, the 2006 Regulations provide the mechanism by which local authorities can regulate the operations of food businesses so as to ensure that hygiene standards are complied with and so ensure the health and safety of consumers.

In addition to its normal powers of sentencing (a maximum sentence of a fine not exceeding £5000 in the Magistrates’ Court, and a maximum sentence of 2 years imprisonment and/or an unlimited fine on Indictment), the sentencing court may also impose a Hygiene Prohibition Orders, prohibiting the further operation of the food business.

The power to make a Hygiene Prohibition Order is created by Regulation 7. In addition to specified circumstances in which a court is required to make a Hygiene Prohibition Order restricting the use of particular processes, equipment or premises where the use of those processes, equipment or premises themselves give rise to a risk of injury to health, there is a general discretionary power under Regulation 7(4) to make an order prohibiting the food business operator from participating in the management of any food business, or any food business of a class or description specified in the order.

The discretion is a wide one: a sentencing judge may impose such an order if he “thinks it proper to do so in all the circumstances of the case” (see Regulation 7(4)).

A Hygiene Prohibition Order made in those circumstances is indefinite, persisting until an order is made by the court to lift the prohibition on an application by the food business operator. The court will order the prohibition to be lifted if it appears proper to do so, having regard to the circumstances of the case, including in particular the conduct of the food business operator since the making of the order. No application can be made for at least six months after the making of the order, nor within three months of such an application being refused.

In R v Crestdane Ltd. [2012] EWCA Crim 958, the Court of Appeal considered the circumstances in which it would be appropriate for a sentencing court to make a Hygiene Prohibition Order under the Food Hygiene (England) Regulations 2006 following the conviction of a food business or food business operator for food hygiene offences.

In that case, the Defendant Company was the operator of a large Chinese restaurant in Greenwich, with an annual turnover of £2m and an annual profit of in excess of £840,000.

In April 2011, local authority environmental health officers conducted a routine hygiene inspection of the restaurant. They found widespread deficiencies in the compliance with applicable hygiene standards within the kitchens of the restaurant, which included evidence of a serious mouse infestation which collectively gave rise to a very real risk of food contamination and posed a danger to health.

Immediately following the inspection, the local authority served a Hygiene Emergency Prohibition Notice under Regulation 3 upon the company, effectively immediately closing the restaurant until such time as there was no longer an immediate risk to human health. Improvements were in due course made which satisfied the local authority following a further inspection that the Hygiene Emergency Prohibition Notice could be lifted, and the restaurant re-opened.

The company subsequently pleaded guilty to 18 offences of failing to comply with hygiene regulations under Regulation 17, and, the case having been committed to the Crown Court for sentence, was ultimately fined a total of £51,000 and ordered to pay prosecution costs of £2,700. The sentencing judge also made a Hygiene Prohibition Order prohibiting the company from being a food business operator or from participating in the management of a food business.

The history of local authority involvement showed that there had been deficiencies in the company’s compliance with food hygiene standards on previous occasions. The company had previously been served with Hygiene Improvement Notices in 2005 and 2007, and had previously been prosecuted and had pleaded guilty to nine offences of being in breach of Regulation 17, for which it had been fined £13,500 and ordered to pay costs of £6,800.

On appeal, it was submitted that the combination of the fine and the Hygiene Prohibition Order resulted in a sentence which was manifestly excessive, and that it was not necessary, at the time that the Order was imposed, to protect against any current or future risk to health then present.

Before dealing with the Hygiene Prohibition Order, Openshaw J, giving the judgment of the Court of Appeal, re-iterated that the guidelines in relation to the appropriate level of fines in health and safety cases generally in R v Rollco Screw & Rivet Co Ltd and Others [1999] IRLR 439 and R v F Howe & Son (Engineers) Ltd [1999] IRLR 434 applied equally to the fixing of fines in food safety cases.

The Court of Appeal then went on to consider the principles which should be applied when considering the imposition of a Hygiene Prohibition Order. A distinction was to be drawn between the purposes of a Hygiene Emergency Prohibition Notice, which was intended to deal with the immediate threat to public health from contamination, and the wider discretion to impose a Hygiene Prohibition Order where it appeared to the court to be proper to do so.

The power to impose such an order is not limited to situations where there the closure of the premises is necessary to safeguard public health.

The protection of the public from a future risk of harm is a relevant consideration, however, and even if there has been an improvement in conditions such that a Hygiene Emergency Prohibition Notice is no longer necessary, it does not follow that a Hygiene Prohibition Order ought not to be made. It would be open to the court to conclude that notwithstanding the present improvement that there remained a sufficient future risk that a Hygiene Prohibition Order ought to be made. The number and nature of the breaches in the present case, particularly where they are numerous and long-standing, might give rise to such a concern, although a single breach might also be of such severity that require the making of a Hygiene Prohibition Order. Previous convictions and failures to heed warnings were also clearly relevant in assessing the level of future risk.

Improvements made after the event were relevant, but a court was entitled to view protestations of future good conduct with a degree of scepticism where there was a history of failures to comply.

In any event, the future risk to human health was but one consideration. The facts of any particular offence might alone justify the imposition of a Hygiene Prohibition Order.

Deterrence was also an important consideration. The imposition of an order was a powerful message to the food industry that strict compliance with rigorous food hygiene regulations was vital.

In the light of the judgment in Crestdane, the discretion of a judge to make a Hygiene Prohibition Order remains a wide one. An order should be made where it is appropriate to do so. Where there is a continuing danger to public health, then an order is likely to be appropriate, but the circumstances in which an order may be made should not be limited to such cases.

Adam Pearson is a barrister at 36 Bedford Row, specialising in Consumer and Criminal Law. He is a Contributing Editor to Trading Standards: Law and Practice, with responsibility for Food Safety and Labelling. He has wide experience of Trading Standards and other Local Authority prosecutions, and can, in appropriate cases, accept instructions on a direct access basis.