Enforcement and Prosecution Policy

Food Law Enforcement Objective

It is this Council’s policy to strive to ensure that food and drink intended for sale for human consumption, which is produced, stored, distributed, handled or consumed within the district is without risk to the health or safety of the consumer.

The aim of this policy

• To ensure a consistent approach to food related enforcement within the district;
• To provide officers with guidelines to enable them to make decisions in the field, consistent with current Government advice;
• To inform the public and food businesses of the principles by which enforcement action is taken.

Enforcement

Purpose of food hygiene inspections

• To establish whether food is being handled and produced hygienically;
• To establish whether food is, or will be having regard to further processing, safe to eat;
• To identify foreseeable incidences of food poisoning or injury as a consequence of consumption of food;
• The identification of breaches in hygiene or processing legislation will be incidental to the above aims.

Factors influencing the enforcement approach

• An authorised officer has a range of options available in seeking to ensure the above aims are met. These range from the giving of advice and verbal warnings, to the service of statutory notices, or prosecution or closure of premises.
• This authority has signed the Enforcement Concordat and has adopted a graduated approach to enforcement as described in that document. As the first step towards securing compliance, an authorised officer will adopt an educative approach and discuss the requirements of the legislation relating to hazard analysis and the supervision and instruction and/or training with the food business operator.
• This authority will have regard to the BRE Regulator Compliance Code of Practice (attached as Appendix 1) in the conduct of its enforcement work.
• The Food Law Code of Practice (England) Code of Practice gives guidance on the appropriate use of the available procedures. This authority strictly follows advice issued by central government and the Local Authorities Coordinators of Regulating Services (LACORS) and authorised officers are required to follow this enforcement policy.
• Departures from this policy must be exceptional and the reasons will be documented.
• Enforcement action will be proportionate to the risk to public health arising from the contraventions identified. Combinations of formal notice and informal advice may be appropriate.
• Decisions on appropriate enforcement action will be taken based primarily on an assessment of risk to food safety and public health, but will also be influenced by the history of compliance by the food business operator with food safety legislation and his willingness to remedy contraventions.
• This authority has regard to the LACOTS Home Authority principle and will consider whether a relevant Home Authority should be consulted before giving detailed advice or taking enforcement action.
• This authority recognizes that some organisations, including voluntary and charitable ones operated by volunteers will need help and guidance to understand food safety requirements and an informal approach will be used where public health is not compromised.
• This authority recognises that many businesses in the District are small and family run on a tight budget. Consideration will always be given to low-cost solutions to contraventions, as long as this does not present a threat to the public health.
• This authority recognises that many businesses are seasonal and operate out of normal office hours and will need inspection and advice during these trading hours.
• This authority recognises that English is not the first language of many traders in its area and will take care to ensure its enforcement actions are clearly understood by providing documents and arranging for interpreters in an appropriate language wherever possible.
• Where there is a shared or complimentary enforcement role this authority will consult with those other enforcement agencies to ensure that the proposed action is consistent with the policies and actions of that other authority. An example would be consultation with Trading Standards over sampling programmes or the labelling of foodstuffs.
• Enforcement action taken by this authority will take into account the requirements of other departments of the Council and of other teams within the Environmental Services department to ensure consistency of action.
• Before taking action that the authority believes may be inconsistent with that taken by other food authorities, or with LACOTS advice, it will first discuss the area of difficulty with those bodies through the Kent Technical Food Group.

Legal Safeguards influencing the Enforcement Approach

• The Regulation of Investigatory Powers Act 2000

Any covert surveillance which is conducted as part of any investigation of any case which falls within this policy, will comply with the Regulation of Investigatory Powers Act 2000 (RIPA). In that covert surveillance falling within RIPA will be authorised and conducted in accordance with the statutory framework and any Code or Codes made thereunder.

• The Human Rights Act 1998 and the European Convention on Human Rights

The Human Rights Act 1998 (HRA) makes it unlawful for a public authority to act in a way that is incompatible with the European Convention on Human Rights (ECHR). This policy will be implemented taking into account the legal and procedural implications of both the HRA and the ECHR.

Qualification and Authorisation of Officers

• No officer will carry out food hygiene inspection and enforcement duties unless suitably trained and experienced and authorised in writing by the Director of Community Services.
• High risk premises (categories A and B), all food manufacturers and processors classified as substantial and premises approved under product specific legislation will only be inspected by qualified environmental health officers, or food safety officers holding the Higher Certificate in Food Premises Inspection.
• Officers will be authorised to sign Hygiene Improvement Notices only for premises within the categories for which they are qualified.
• Hygiene Emergency Prohibition Notices and voluntary closure agreements will only be signed by specifically authorised officers, being an environmental health officer having a minimum of two years post-qualification experience of food safety enforcement and currently involved in food safety enforcement. Only officers holding specific food inspection qualifications will be authorised to inspect, detain or seize foodstuffs.
• Only officers holding specific food inspection qualifications will be authorised to inspect, detain or seize foodstuffs.
• Only officers holding specific food inspection qualifications and specific imported foods training will be authorised to inspect, detain or seize imported foodstuffs at the Border Inspection Post at KIA Manston.
• Newly qualified officers will only be authorised after a minimum of 6 months of structured practical training in enforcement procedures at the appropriate level.
• Continuing professional development training will be provided for all food safety officers to enable them to keep abreast of changes in legislation and good practice and meet the requirements of Code of Practice No. 19.
• Officers will be fully acquainted with the requirements of this Enforcement and Prosecution Policy upon appointment and with any revisions as they arise.

The Informal Approach

• The existing procedure of giving advice and informing of minor contraventions by informal letters is accepted and understood by Thanet’s food businesses. Officers will use this approach as long as they believe that this will achieve compliance with food safety legislation within a time-scale that will protect the public health and ensure safe food production.
• An authorised officer will be prepared to offer advice where this is requested by the operator of an existing or new food business, and will seek to encourage food businesses to adopt good food hygiene practice through this approach.
• This informal approach will be consistent with the Food Safety Act 1990 Code of Practice and with LACOTS guidance.
• Officers will clearly differentiate between legal requirements and recommendations of good hygiene practice in both verbal and written communications.

The use of hygiene improvement notices

An improvement notice is a legal document issued under the Food Hygiene (England) Regulations 2006, Reg 6. It details contraventions of the EU Hygiene Regulations, the works required to correct the contraventions and a time-scale for completion. Failure to comply with the notice is an offence.

Improvement notice procedure will be used where major contraventions of food hygiene or food processing regulations are found and where any 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 or requirements , where the authorised officer assesses that the operator 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.

An improvement notice will not be used where:

• the contravention is minor and presents no risk to public health;
• the contravention is a continuing one, e.g. cleanliness or temperature control, and a notice would only secure an improvement at one point in time. (prosecution may be the only option);
• swift action is required, such as at a one day event where there exists a risk to public health.

Improvement notice procedure will only be implemented after the authorised officer has discussed the need for such action and its requirements with the food business operator informally and considered alternatives. The food business operator will be offered the opportunity for the matter to be referred to the officer’s manager in the event of a dispute.

Only suitably qualified and experienced officers will be authorised by the Council to sign improvement notices.

The use of Hygiene Prohibition Orders

A prohibition order may be imposed by the courts following a conviction for a food hygiene offence, if the contravention has not been corrected or 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 food business operator.

• An application for a 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.

The use of Hygiene Emergency Prohibition Notices

An emergency prohibition notice has the effect of immediately closing a food business or prohibiting the use of equipment or a process where there is an imminent risk of injury to health.

Conditions where prohibition of premises may be appropriate:

• Premises which contravene food safety legislation and have been or are involved in an outbreak of food poisoning or present an imminent risk of one;
• Serious infestation of vermin resulting in actual or imminent risk of contamination of food;
• Poor structural condition and poor equipment and/or poor maintenance of routine cleaning and/or serious accumulations of refuse, filth or other extraneous matter resulting in actual or imminent risk of food contamination;
• Serious drainage defects or flooding of the premises leading to actual or imminent risk of food contamination;
• Any combination of the above or any cumulative effect of contraventions which together represent an imminent risk of injury to health.

Additionally, equipment or a process may be prohibited where there is a risk of cross contamination of ready to eat food or where there is a failure to achieve critical control criteria such as minimum cooking or pasteurisation temperatures or the use of a process which is inappropriate.

An emergency prohibition notice will only be signed by a specifically authorised officer being an environmental health officer having a minimum of two years post qualification experience of food enforcement matters and being currently involved in food enforcement. Such actions will, additionally, have to be approved by the food safety team leader or other suitably qualified senior officer.

Outside, expert advice will be sought where the process or treatment under consideration requires specialist knowledge or qualifications to establish that the health risk conditions above are met.

Voluntary Closure

• There may be occasion where an authorised officer is satisfied that grounds for Emergency Prohibition exist, but where the food business operator offers to close voluntarily until the health risk is removed.
• Such an offer will only be accepted if the authorised officer is satisfied that there is no likelihood of the premises being used as a food business, or of the use of equipment, or of a process without the express agreement of the food authority.
• Such an offer will only be accepted if the offer to close and its acceptance are fully documented and signed by the food business operator and by a specifically authorised officer, as for an emergency prohibition notice.
• When considering such an offer, great care will be taken to ensure that the food business operator is aware that in closing voluntarily they are relinquishing the rights to compensation for unjustified action contained in formal emergency prohibition notice procedure.

Hazard Analysis – Compliance with Article 5

Article 5 of EU Regulation 852/2004 requires that a food business operator shall put in place, implement and maintain a permanent procedure based on the HACCP principles. These seven principles are to identify food safety hazards, critical control points, critical limits, monitoring arrangements, corrective actions, and to set up procedures and documentation to implement these principles.

• Non-compliance with any of the requirements of Article 5 will not be considered in enforcement terms to be any different from the other detailed requirements of the Hygiene Regulations. The level of enforcement action will be risk based and will be considered using the principles of proportionality described above.
• The extent of procedures and documentation required for compliance will be commensurate with the size and food safety risks presented by a food business. Fuller details are contained in the Safer Food Better Business (SFBB) Guidance Notes (Appendix 2).
• Provided hazards are adequately controlled, an educative approach will be taken to assist a business in complying with the documentation requirements using the Safer Food Better Business scheme.
• Where a subsequent revisit reveals little or no progress towards adequately documented system, Hygiene Improvement Notice procedure will be followed.

Follow up visits

Where significant breaches of hygiene regulations have been identified during an inspection, a revisit will be carried out to check on progress towards compliance. The time-scale for the revisit will be agreed with the food business operator at the time of the primary inspection. Wherever practicable, and in all cases where a formal notice has been served, or prosecution instituted, the revisit will be undertaken by the same officer who carried out the original inspection.

Port Health enforcement

Enforcement of port health duties will be guided by the principles described above. Additionally:

• Only officers holding specific food inspection qualifications and specific imported foods training will be authorised to inspect, detain or seize imported foodstuffs at the Border Inspection Post at KIA Manston.
• When carrying out inspections of imported foodstuffs, authorised officers will have regard to guidance issued by the Food Standards Agency and Defra in the form of the BIP Manual, OVS notes and letters and circulars issued periodically by those bodies.
• When carrying out food hygiene inspections of ships and Port food businesses, authorised officers will have regard to guidance issued by Governmental bodies and the Association of Port Health Authorities (APHA).
• When carrying out all port health duties, authorised officers will take care to liaise with the Maritime and Coastguard Agency and HM Customs and Excise to ensure consistency and support for enforcement actions.

Prosecution

• Prosecution may be considered as an alternative, in addition to, or as a consequence of failure to comply with the above enforcement procedures.
• In considering prosecution action for food safety offences an authorised officer will consider whether that course of action is proportionate to the risk presented to the public health by the contravention, using the principles outlined in the paragraph “Factors influencing the enforcement approach” above.
• Home and originating authorities will be consulted where prosecutions are planned and due regard will be paid to opinion of that authority. Such authorities will be notified of the outcome of prosecutions taken.
• The recommendation to prosecute will be made by the Public Protection Manager after careful consideration of a written report from the inspecting officer.
• The decision to prosecute will be made by the Principal Solicitor, who will take account of the criteria set out in the Code for Crown Prosecutors, in particular the Evidential Test and the Public Interest Test. The Code is a public document and is available from the CPS Communications Branch, 50 Ludgate Hill, London, EC4M 4EX or on their website: http://www.cps.gov.uk/.

The decision to prosecute

Factors that will be considered before initiating prosecution procedures include:

• The seriousness of the alleged offence;
• The previous compliance history of the food business;
• The likelihood that a due diligence* defence could be established;
• The ability of any important witness and their willingness to co-operate;
• The willingness of the food business operator to prevent a recurrence of the contravention;
• The probable public benefit of a prosecution and the importance of the case in establishing a precedent;
• Whether other action, such as issuing a formal caution, serving an improvement notice, or imposing a prohibition, would be more appropriate or effective;
• Any explanation offered by the food business.

* due diligence: The Food Safety Act 1990 provides a defence for a person charged with an offence that he took all reasonable precautions and exercised all due diligence to avoid the offence. This requires that, not only are suitable precautions set up, but that these are adequately implemented and monitored to ensure their effectiveness.

Non-compliance with notices

Non-compliance with an improvement notice is a serious offence and will be considered to be grounds for prosecution with the following exceptions:

• Where the remaining contraventions detailed in the notice are minor and do not pose a risk to public health;
• Where the outstanding works are in hand, (confirmation from contractor or supplier required), and an extension of time to complete the works would have been granted, if requested.

Non-compliance with an informal notice will not be considered grounds for prosecution, but the authorised officer will reconsider at this stage the enforcement options available to remedy the contravention using the criteria described above. The failure to respond in the first instance to an informal approach will influence that decision.

Food Complaints

(LACORS Guidance on Food Complaints – second edition)

The decision to prosecute for Food Safety Act 1990 offences relating to the sale of food unfit for human consumption, or not of the quality demanded by the purchaser will be taken at the earliest opportunity to avoid unnecessary and time consuming investigations by both authorised officers and food businesses.

Prosecution will be indicated where:

• the offence has resulted in a risk to public health;
• there is evidence of negligence in failing to adopt basic food hygiene precautions;
• the food business has failed to respond to an informal approach to prevent a recurrence of the problem.

Particular regard will be paid to the possibility of establishing a due diligence defence.

Only officers holding a relevant food inspection qualification will be authorised to consider whether food is fit for human consumption. Independent advice will be sought from the appointed food examiner or public analyst, or other expert, where appropriate.

In all cases where a prosecution is being considered, a report will be requested from the originating or home food authority as appropriate and particular regard will be paid to that report.

The integrity and co-operation of a complainant in providing witness support is especially important with food complaints. The wishes of the complainant as to whether to proceed to prosecution will be respected, unless it is felt to be in the public interest to proceed independently.

Food Hygiene Regulations

(EU Regulations 852/2004)

A decision to prosecute for offences under the food hygiene regulations will be taken based on the risk to public health presented by the contravention. It is not sufficient for there to be a technical breach of the regulations on a minor matter.

The initial response to contraventions that do not present a risk to public health will be written notification by informal or improvement notices.

Immediate prosecution action will be indicated where:

• conditions are found that present an immediate risk to public health, whether or not prohibition action is also taken;
• there is a risk to public health presented either by the seriousness or number of contraventions and there is documented evidence that the food business has previously received warnings regarding such contraventions.

Where a prosecution is prepared for food hygiene regulation contraventions, summonses will generally be issued for a small number of specimen charges, representing the more serious contraventions and demonstrating the element of risk.

Formal Cautions

(Home Office Circular 18/1994 and LACOTS circular FS 7 94 2)

There may be circumstances where evidence exists for a successful prosecution, but where mitigating circumstances are such that nothing is likely to be gained from such action. In such circumstances the authorised officer will consider the offer of a formal caution as an alternative to prosecution. Circumstances where a formal caution may be considered are:

• the contravention is minor and a first offence;
• the contravention, although serious, has been speedily dealt with and steps taken to prevent a recurrence;
• the food business has since closed or the food business operator ceased that occupation;
• the defendant would be unable to pay a fine, costs or compensation.

Formal caution will only be considered where there is sufficient evidence to give a realistic expectation of success if the case went to the courts. It will not be seen as an alternative to prosecution where it is felt the prosecution case is weak.

A caution can only be administered where the suspected offender is prepared to admit the offence. Care will be taken to ensure that the suspected offender understands the significance of the caution and is able to give an informed consent to being cautioned.

The decision to offer a formal caution will be taken by the Principal Solicitor upon receiving the report of the Public Protection Manager (PPM). The PPM is authorised as the “Cautioning Officer “ for the purpose of implementing the caution.

If the offer of a formal caution is declined, further enforcement action will be considered. This will usually be prosecution, but the option of a written warning will be considered.

Home and originating authorities will be notified of formal cautions issued by this authority where appropriate.

Review of Policy

This Enforcement and Prosecution Policy will be reviewed annually or when changes in legislation or centrally issued guidance make this necessary.

Appendices

1. Notes on BRE Regulators Compliance Code of Practice
2. Guidance on enforcement of Article 5 requirement for documented food safety systems.

Food Law Enforcement Objective

Enforcement

The Informal Approach

Environmental Health

E-mail:

environmental.health
@thanet.gov.uk 

Tel: 01843 577580

Fax: 01843 577340