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

Contact Us:

Telephone: (023) 9244 6654

Email: ehcommercial@havant.gov.uk

Visit: Civic Offices, Civic Centre Road, Havant PO9 2AX

Havant Borough Council, Civic Centre Road, Havant, Hampshire PO9 2AX