Council fends off attack on decision to prosecute food hygiene case

The owners of a group of pubs have failed in a judicial review challenge over a district judge's refusal to stay, as an abuse of process, their prosecution for breaches of food hygiene regulations.

The case of Barons Pub Company Ltd, R (on the application of) v Staines Magistrates' Court [2013] EWHC 898 followed an inspection of one of the group’s pubs by a senior environmental health technician from Runnymede Borough Council in March 2011.

The technician found a number of hazards and also found that the owners had not registered as a food business operator since taking over the pub four years before.

He returned the following day to re-inspect the kitchen and considered that very little effort had been made to clean it. The technician repeated his advice that the premises should be closed voluntarily for them to be cleaned thoroughly, and informed the owners of his recommendation for further statutory action.

The managing director of the pub group wrote on 6 April to explain the efforts made to clean the premises and what else had been done.

However, the council subsequently decided to prosecute the owners. In May 2011, a summons was issued requiring the owners to answer eight alleged contraventions of regulation 17 of the Food Hygiene (England) Regulations 2006 and various provisions of EU regulations.

The owners made various attempts subsequently to persuade Runnymede to stop the prosecution. Their solicitors wrote to the council seeking a review of the decision to prosecute, suggesting that the public interest test and the policies relating to prosecution had not been followed.

Runnymede chose to continue with the prosecution. At a case management hearing, the owners said they would seek to stay the proceedings as an abuse of process.

In December 2011 District Judge Workman heard the application to stay the proceedings. He held that it was more likely than not that the council’s Corporate Head of Governance had not considered its enforcement policy as he was required to do under the legislation.

DJ Workman then went on to hold that he also had to consider whether the bringing of the proceedings was oppressive. He came to the view that, if the kitchens on the day of the inspection were so lacking in cleanliness to infringe the regulations, a conviction could not be regarded as oppressive, unless a defence on the facts could be raised.

The district judge considered that the points that had been made on behalf of the owners could be made in mitigation. He concluded that there would be no oppression and refused a stay.

The prosecution was then stayed by the High Court pending the determination of the owners’ appeal by judicial review.

There were three issues:

  • Could the owners challenge the decision to prosecute otherwise than through an abuse of process application?

  • Did the council fail to have regard to its enforcement policy?

  • Was it necessary for the owners to show there was oppression and, if so, was there oppression?

The President of the Queen’s Bench Division, Sir John Thomas, who heard the case with Mr Justice Simon, said the Magistrates’ Courts had no power of review of a prosecutorial decision other than through an abuse of process application.

The President said: “As has been made clear in a number of decisions,…. if there is a challenge to the decision to prosecute, it must always be made in the criminal proceedings, unless there is some reason why it cannot be so made.

“The only way in which it can be made in Magistrates' Court proceedings is by an abuse of process application. That in itself is an exceptional remedy. It is only if that cannot be done, that there can be an application of this court….The circumstances in which an application can be made to this court are likely to be very rare.”

Sir John rejected the owners’ claim that Runnymede had failed to apply its own enforcement policy.

He said: “On the totality of the evidence we are satisfied that the council followed its own enforcement policy. There can be no basis, in our judgment, for contending that the enforcement policy was applied…. in an arbitrary manner or in a way that was not justified by the evidence. There was, it is clear, strong evidence of a serious breach of the regulations by the owners which justified prosecution.”

The President added that following the finding that the council had followed its own enforcement policy, it was not strictly necessary to consider the question of oppression. However, he went on to set out the court’s approach to the issue.

Dismissing the claim for judicial review, Sir John said: “There is now no impediment to the prosecution which was begun nearly two years ago being resumed, and the court reaching a judgment on whether the council has proved…. the very serious breaches of the regulations which it alleges.”

The judge added that the court hoped that challenges of this kind “will be very rare indeed in the future”.

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