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Food Safety Enforcement and Prosecution Guidelines
Aim of Guidelines
- To ensure a consistent approach to enforcing legislation
concerning food safety within Havant.
- To provide officers with guidelines to enable them to make
consistent decisions in the field.
- To inform the public and food businesses of the principles by
which enforcement action is taken.
1. INTRODUCTION
1.1 The Council is committed to ensuring that food and
drink on sale for human consumption, which is produced, stored,
distributed, handled or consumed within the Borough is safe and
without risk to the consumer. The purpose of enforcement action by
the Council under the Food Hygiene (England) Regulations 2006
(
see
guidance from Food Standards Agency >>) and associated
legislation includes:
- Prevention of food poisoning
- Dealing with risks to the safety of food
- Promotion of good hygiene practices in compliance with the
law
1.2 It is the aim of these
guidelines
- To ensure a consistent approach to food related enforcement
within the Borough;
- To provide officers with guidelines to enable them to make
sound decisions that are consistent with current good practice
- To inform the public and food businesses of the principles by
which enforcement action is taken.
1.3 Under the Food Hygiene (England) Regulations 2006
Havant Borough Council has a range of duties and powers to ensure
the safety of food and the hygiene of food premises within the
Borough.
1.4 In determining the nature of any enforcement action
the Council will have regard to the advice and guidance published
by the Food Standards Agency, including any relevant Code of
Practice. The current Code of Practice specifies that food
authorities should ensure that enforcement action taken by its
authorised officers is reasonable, proportionate and consistent
with good practice and that authorised officers should take account
of the full range of enforcement options. These include educating
proprietors, giving advice, informal action, sampling, detaining
and seizing food, serving hygiene improvement notices, prohibition
procedures and prosecution procedures. When using its enforcement
powers the Council will provide clear guidance, information and
advice to businesses, employees, persons or organisations so as to
encourage compliance with the legislation.
1.5 In addition, the Council fully adopts the principles
of the
Enforcement Concordat of proportionality,
consistency and transparency and targeting when carrying out food
safety enforcement. This approach complies with the
Council Policy for
Regulation and Enforcement for all Council regulators confirmed
by the Executive on 22 October 2008.
1.6 The primary responsibility for compliance lies with
the proprietors of food businesses and individuals who offer food
for sale or as gifts.
1.7 All authorised officers shall make themselves
familiar with these guidelines and shall have regard to its
requirements when making enforcement decisions. Any departure from
these guidelines will be exceptional, capable of justification and
be fully considered by the Senior Environmental Health Officer
before the decision is taken, unless it is considered that
there is significant risk to the public in delaying the
decision.
1.8 Authorised officers will work in consultation,
liaison or where relevant, in partnership with other Havant Borough
Council Services and other enforcing agencies to provide a
co-ordinated service.
2. DECISION MAKING
2.1 Whereas elected Members of the Council may determine
general policy with regard to enforcement action following breaches
of the law, Members shall not be involved in detailed consideration
of any individual case, except in special circumstances and for
reasons that must be clearly stated and recorded at the time. The
Council has delegated its authority to make decisions about food
safety enforcement to the Community Group Director who in turn has
delegated these powers to authorised officers in accordance with
their qualifications and experience.
2.2 Prior to the service of any statutory notice, except
in the case of an emergency, the case officer shall fill out the
relevant food safety decision checklist for service of the notice
(these are attached as Appendix 1). These checklists require the
case officer to seek approval for formal action by the Deputy
Environmental Health Manager (or Environmental Health Manager
in their absence).
2.3 The decision whether to prosecute or to issue
a simple caution must involve the Solicitor to the Council or
his representative, following endorsement by the Environmental
Health Manager. The decision will be based on the relevant
legislation, guidance and good practice including the Codes issued
by the Crown Prosecution Service.
3. INVESTIGATION
3.1 The Council will use its discretion when deciding on the
level of response to hazard warnings, food complaints, complaints
about the hygiene of premises or cases of food borne disease. To
maintain a proportionate response, resources will be devoted to
investigations in accordance with the seriousness of the incident
and the circumstances concerned.
3.2 The Council will carry out a site investigation of
outbreaks of food-borne disease unless there are specific reasons
for not doing so which the investigating officer will state and
record.
3.3 In deciding the level of response to complaints or reports
of cases of food borne disease, authorised officers shall take into
account the following factors:
- The severity and scale of the actual or potential risk to
public health
- The seriousness of any contravention of the law
- The history of previous incidents
- The enforcement priorities
- The likely outcome of intervention by the Council
- The wider relevance of the incident including public
concern
3.4 Wherever appropriate, the authorised officer will liaise
with other enforcement agencies and the home authority for the food
business concerned.
4.0 ENFORCEMENT OPTIONS
4.1 Enforcement action may only be initiated by officers who
are authorised to do so.
4.2 The Environmental Health Commercial Team recognises and
affirms the importance of achieving and maintaining consistency in
its approach to making all decisions, which concern enforcement
action, including prosecution. The Council has signed up to and
follows the principles of the Enforcement Concordat. It will also
ensure that all actions will be consistent with the Human Rights
Act 1998.
4.3 It is our policy to ensure that enforcement decisions are
always consistent, balanced, fair and relate to common standards
that ensure the public is adequately protected. In coming to any
decision many criteria will be taken into account including the
seriousness of the offence, the enterprise’s past history, the
confidence we have in the management, the consequences of
non-compliance and the likely effectiveness of the various
enforcement options.
4.4 After taking all the relevant information and evidence
into consideration, authorised officers have the following options
for food safety enforcement:
- To take no further action
- To take informal action
- To use statutory notices
- To use simple cautions
- To prosecute
5.0 INFORMAL ACTION
5.1 Many people, having had a problem for which they are
responsible drawn to their attention, will be anxious to comply
with their statutory obligations. In such cases the enforcement
officer's role will be to guide and support.
5.2 Informal action to secure compliance with legislation
includes the provision of advice and requests for action through
the inspection reports and letters. These methods may continue to
be used where authorised officers believe that these methods will
result in legal compliance within a reasonable timescale.
5.3 It may be appropriate to use informal action in the
following circumstances:
- The consequences of non-compliance will not pose a significant
risk to public health.
- The act or omission is not serious enough to warrant formal
action.
- From the individual’s/enterprise’s past history it can be
reasonably expected that informal action will achieve
compliance.
- There is a good level of confidence in the food safety
management arrangements by that individual or business.
Even where some of the above criteria are not met, there may
be circumstances in which informal action will be the most
effective enforcement action.
5.4 When informal action is taken to secure compliance with
food safety legislation, authorised officers shall ensure that
advice and guidance is provided that:
- Contains all the information necessary to understand the work
that is required and why it is necessary; and
- Clearly indicates that any recommendations of good hygiene
practice are not legal requirements
6.0 FORMAL ENFORCEMENT
6.1 In this section enforcement action means action of any
of the following kinds of action:
a. Hygiene improvement notices
b. Hygiene emergency prohibition notices and orders
c. Prohibition Orders
d. Simple Cautions
e. Prosecution
f. Detention/seizure powers
6.2 HYGIENE IMPROVEMENT NOTICES
6.2.1. A hygiene improvement notice is a legal document issued
under the Food Hygiene (England) Regulations 2006. It details
contraventions of the hygiene legislation, the works required to
correct the contraventions and a timescale for completion. Failure
to comply with the notice is an offence.
6.2.2. The hygiene improvement notice procedure will be used
where major contraventions of food hygiene or food processing
regulations are found and where one or more of the following
conditions are satisfied:
- where formal action is proportionate to the risk to public
health;
- there is a documented history of non-compliance with food
safety legislation;
- an informal approach has been tried but has not been
successful, or the authorised officer has reason to believe that
informal action will not be successful;
- in the case of new business, where the authorised officer
assesses that the proprietor is unwilling or unlikely to comply,
for whatever reason;
- where there is a breakdown of controls critical for food
safety, or where no such controls exist.
Hygiene improvement notices will also be considered where
although it is intended to prosecute, effective action needs to be
taken to remedy conditions that are serious or deteriorating.
6.2.3. A hygiene improvement notice will only be served by an
appropriately authorised officer. Only suitably qualified and
experienced officers will be authorised by the Council to sign such
notices in accordance with the relevant Code of Practice.
6.2.4. Officers signing hygiene improvement notices shall have
personally witnessed the contravention and be satisfied that there
is a contravention of one or more of the relevant statutory
provisions. A second authorised officer must countersign the
notices.
6.2.5. Realistic time limits will be applied and alternative
ways of complying with the notice will be considered. Officers
serving hygiene improvement notices shall endeavour to obtain the
agreement of the proprietor, director or manager of the business
regarding the time limits allowed for compliance with the notices,
having taken due account of the risk to public health. Authorised
officers will always discuss the works required with the
proprietor, director or manager and fully consider the different
means of achieving compliance with the law.
6.2.6. When serving a hygiene improvement notice the Council
shall provide information about the right of appeal to the
Magistrates Court.
6.2.7. All breaches of statutory requirements will be
specified in the notice.
6.2.8. Failure to comply with a hygiene improvement notice
within the specified time limit shall generally result in legal
proceedings.
6.3 HYGIENE EMERGENCY PROHIBITION NOTICES
.
6.3.1 Only officers duly authorised by the Council may issue a
hygiene emergency prohibition notice.
6.3.2 The use of a hygiene emergency prohibition notice will
be considered where it can be proven that the use of any premises,
equipment or process poses an imminent risk of injury to health and
the consequences of not taking immediate and decisive action to
protect public health would be unacceptable. In considering such
issues the officer’s opinion may be based on evidence from those
with special expertise in the relevant field including a food
analyst or examiner.
6.3.3 In deciding whether the use
of a hygiene emergency prohibition notice may be appropriate the
officer will have regard any relevant information, guidance and the
Food Standards Agency’s Code of Practice.
6.3.4. Prior to issuing a hygiene emergency prohibition notice
the officer, in conjunction with the Deputy Environmental Health
Manager, will consider any offer to voluntarily close premises or
cease the use of any equipment or process which poses an imminent
risk of injury to health and where a proprietor will confirm in
writing the offer of voluntary prohibition. However the use of such
voluntary agreements will not be considered where:
- There is no confidence in the integrity of an offer made by the
proprietor, director or manager to voluntarily close the premises
or particular part of the premises or to cease the use of any
equipment, process or treatment associated with the risk of injury
to health.
- A proprietor, director or manager is unwilling to confirm in
writing his or her offer of voluntary action.
6.3.5 Authorised officers must
have personally witnessed the matters concerned before issuing any
hygiene emergency prohibition notice.
6.3.6. When serving a hygiene
emergency prohibition notice the Council shall provide information
about the timescale and procedures to be followed and the rights to
be heard when the Court considers the granting of a hygiene
prohibition order.
6.3.7. Where emergency action
involving chemical contamination is being considered officers may
consult medical or other expert advice before reaching a final
enforcement decision.
6.4 HYGIENE PROHIBITION ORDERS
6.4.1 A hygiene prohibition order may be imposed by the courts
following a conviction for a food hygiene offence, if the
contravention has not been corrected and there still exists a risk
of injury to health. The prohibition order may prohibit the use of
a process, the use of premises or equipment, or the participation
in a food business by a convicted proprietor.
6.4.2 An application for a hygiene prohibition order will be
made if an inspection of premises, prior to a court hearing to
consider a food hygiene offence, reveals that the contravention is
continuing and there is a risk of injury to health.
6.5 SIMPLE CAUTIONS
6.5.1 The Statutory Code of Practice on legal matters advises
that local authorities should consider issuing a simple caution as
an alternative to a prosecution.
6.5.2 Simple cautions may be
considered as an alternative to prosecution. Home Office Circular
18/1994 states that the purpose of the simple caution is:
- To deal quickly and simply with less serious offences
- To divert less serious offences away from the Courts
- To reduce the chances of repeat offences
6.5.3 The following conditions
will need to be fulfilled before a simple caution is
administered:
- There must be evidence of the offence sufficient to give a
realistic prospect of conviction
- The suspected offender must admit the offence
- The suspected offender must understand the significance of
a simple caution and give consent to being cautioned
6.5.4 If there is insufficient evidence to consider taking a
prosecution then the conditions cannot be satisfied for the use of
a simple caution. It will also be inappropriate to use a simple
caution where the suspected offender does not make a clear and
reliable admission of the offence. There is no legal obligation for
any person to accept the offer of simple caution and no pressure
must be applied to the person to accept a caution.
6.5.5 In deciding whether a Simple Caution is appropriate, the
following factors will be taken into account:-
(i) the nature of the offence;
(ii) the likely penalty if an offender was convicted by a
Court;
(iii) the offenders age and state of health;
(iv) previous history;
(v) the offenders attitude towards the offence, including
practical expression of regret.
Serious offences will not be suitable for a Simple Caution,
regardless of the circumstances of the offender.
6.5.6 Simple cautions will be
used in accordance with the relevant Home Office Circular. Where a
simple caution is to be given other relevant bodies will be
advised. These bodies may include home and originating authorities.
Reference shall be made to any detailed advice offered by LACORS,
particularly any guidance issued on LACORS Home Authority
Principle.
6.5.7 The Environmental Health
Manager is authorised to issue simple cautions in respect to food
safety legislation.
6.5.8 Where a person declines the
offer of a simple caution, the Council will be minded to initiate
prosecution.
6.5.9 All completed simple
cautions shall be notified to the Office of Fair Trading.
6.6 PROSECUTION
6.6.1 The decision to prosecute
is a significant decision. Prosecution would be more likely in
cases where there has been wilful disregard of the law, refusal to
achieve minimum legal requirements, a history of non-compliance or
where employees or the public have been placed at serious risk of
harm. A decision to prosecute may therefore be appropriate in any
of the following circumstances:
- Where the alleged offence involves a flagrant breach of food
safety requirements
- Where the gravity of the offence, taken together with the
seriousness of any actual or potential harm, or the general history
and approach of the offender warrants it
- Where there have been repeated breaches or persistent poor
compliance
- Where work has been carried out without, or in serious breach,
of an appropriate licence
- Where there has been a failure to comply with a written warning
or an hygiene improvement notice or hygiene emergency prohibition
notice
- Where authorised officers have been intentionally obstructed in
the lawful course of their duties.
- Where authorised officers have been assaulted in the lawful
pursuit of their duties.
6.6.2 The Council may also consider prosecution where,
following an investigation or other regulatory contact, the
following circumstances apply:
- Where false information has been supplied or there has been
intent to deceive
- Where there have been serious failures in food safety
management
- Where it is appropriate in the circumstances to draw attention
to the need for compliance with the law and to the maintenance of
standards required by the law and conviction may deter others from
similar failures to comply with the law.
6.6.3 Where circumstances have been identified which may warrant
prosecution, all available evidence and information will be
considered, to enable a consistent, proportionate and objective
decision to be made.
6.6.4 Before a prosecution proceeds, the officers responsible
for deciding enforcement action will ensure that they are satisfied
that there is relevant, admissible, substantial and reliable
evidence that an offence has been committed by an identifiable
person or company. There must be a realistic prospect of
conviction.
6.6.5 In addition to being satisfied that there is sufficient
evidence to provide a realistic prospect of conviction, the
officers concerned must be satisfied that it is in the public
interest to prosecute. In general, the fraver the offence,
the less likelihood that the public interest be served by action
other than prosecution. Reference will be made to the Code
for Crown Prosecutors, issued by the Crown Prosecution Service.
6.6.6 When considering the decision to prosecute, officers
will also have regard to the following factors:
a) The seriousness of the alleged offence including:
- The risk of serious harm to health
- Identifiable victims or potential victims
- Failure to comply with a statutory notice served for a
significant breach of legislation
- Disregard of food safety for financial reward
b) The previous history of the
party concerned including:
- Offences following a history of similar offences
- Failure to respond positively to past guidance or warnings
- Failure to comply with statutory notices
c) The likelihood of the
defendant being able to establish a due diligence defence:
d) The competence of
witnesses
e) The willingness of the party
to take action to prevent a recurrence of the offence(s)
f) The public benefit of
prosecution and the importance of the case, such as establishing
legal precedent.
g) Whether any other action in
place of, or in addition to, prosecution, such as issuing
a simple caution in accordance with Home Office Circular
18/1994 (as amended or updated) or a hygiene improvement or hygiene
emergency prohibition notice, would be more appropriate or
effective.
h) Any explanation offered by the company or the suspected
offender. Suspected offenders will always be offered the
opportunity to offer an explanation before prosecution decisions
are taken.
6.6.7 Where appropriate, Home and Originating Authorities will
be advised of the action taken and its outcome. In addition, the
Office of Fair Trading will be informed of details of any
conviction.
6.7 INSPECTION/SEIZURE OF FOOD
6.7.1 The Food Safety Act 1990 gives authorised officers from
local authorities the power to inspect food at all reasonable times
at any stage between production and distribution to check whether
it complies with food safety requirements.
6.7.2 Where it appears to an authorised officer that the food
is likely to cause food poisoning or any disease communicable to
humans the officer may by notice detain or seize that food so that
it cannot be used for human consumption. Contravention of such a
notice is an offence.
6.7.3 Food will only be detained or seized by an appropriately
authorised officer. Only suitably qualified and experienced
officers will be authorised by the Council to undertake such action
in accordance with the relevant Code of Practice.
6.7.4 Where food is detained, the officer will fulfill the
requirements of the Food Safety Act 1990 in determining whether or
not the food complies with food safety requirements, and in
considering such issues the officer’s opinion may be based on
evidence from those with special expertise in the relevant field
including a food analyst or examiner.
6.7.5 Where the food is seized the officer will inform the
person in charge of the food of his intention to have it dealt with
by a justice of the peace. The officer will where possible advise
any person who may be liable to a prosecution in respect of that
food of his right to be heard and to call witnesses before the
justice of the peace who will be dealing with that food.
7.0 OTHER ENFORCEMENT POWERS – INJUNCTION
7.1 Where the risk to public health is greatest and/or the
delay that would occur in taking the case for prosecution would
allow an unacceptable continuation of the breach, the Council may
decide to seek an injunction. In cases of such seriousness, it must
be approved by the Solicitor to the Council.
8.0 TRAINING AND QUALIFICATIONS OF ENFORCEMENT
OFFICERS
8.1 No officer will carry out enforcement duties unless
suitably trained and experienced and authorised by Havant Borough
Council. Notices will only be signed by officers specifically
authorised for that purpose, being officers having relevant
qualifications; training and experience.
8.2 Prior to the service of any kind of notice which, directly
or indirectly would cause a business to cease trading, the matter
must be reviewed by the Solicitor to the Council. The local member
must also be consulted at the earliest opportunity after service of
such a notice.
8.3 Prosecution will only be instigated following review of
the matter by the Environmental Health Manager and Solicitor to the
Council.
8.4 Training will be provided for all enforcement officers as
required to meet changes in legislation and enforcement
procedures.
9.0 REVIEW OF GUIDELINES
9.1 The implications and effectiveness of these guidelines
will be monitored and reviewed as necessary.
30 November 2009