UK: Get Your Food Hygiene In Order!

Last Updated: 20 December 2012
Article by Clyde & Co LLP

A recent decision in the Court of Appeal could have significant repercussions for food businesses across the country after it confirmed that criminal Courts can consider banning organisations from operating any food business in the future if the circumstances merit it.

The ruling also sheds light on the level of fines imposed on businesses generally when convicted of food safety offences, drawing a parallel with health and safety offences.

What were the circumstances?

Crestdane Limited operated a successful restaurant in London, with an annual turnover of £2 million.

The company was prosecuted for offences under the Food Hygiene (England) Regulations 2006 due to dirty conditions in the kitchen, evidence of mouse droppings, a lack of proper hand washing facilities for staff and poorly completed kitchen records, amongst others. Conditions were poor enough to warrant temporary closure of the restaurant after a Local Authority Officer imposed a Hygiene Emergency Prohibition Order ("HEPO"), which is served in circumstances where there is an imminent risk of injury to health and is lifted once those circumstances no longer exist.

A HEPO should be contrasted with a Hygiene Prohibition Order ("HPO"), which the Court can make following conviction for a food hygiene offence if it is "proper to do so". A HPO can prevent a business from participating in the running of any food business in the future, or face further prosecution and potential imprisonment for individuals.

Why is the case important?

The case of Crestdane is the first case which provides guidance on the principles which should be applied when the Court comes to consider the imposition of HPOs. This will be welcome to the lower Courts who are routinely called upon by Local Authorities to fine businesses for food safety offences and are empowered to consider shutting down the business altogether.

Perhaps unsurprisingly, the Court in Crestdane reiterated that each case must turn upon its own facts but unusually decided to impose a HPO on the business, in addition to the fine of £50,000 for breaching the Regulations. Interestingly the Court held that the power to impose a HPO might be appropriate even where any immediate risk to health has passed but there is a risk of some future breach. The imposition of a hefty fine on the business would also not preclude the Court from considering a HPO.

But what if the breaches have been rectified?

What is clear is that food businesses cannot rest on their laurels safe in the knowledge that they have taken swift action to rectify the breaches.

The Court made it plain that any improvements made after the event will be relevant but will not necessarily automatically mean that a HPO will not be justified. The Court will pay particular attention to the number, nature and extent of the offences proved against a defendant and certainly a business with a long history of non-compliance may be greeted with scepticism if it insists that it has changed its ways for good.

The Court will also always have one eye on the fact that the imposition of or the upholding of a HPO is likely to send out a powerful message to others working in the food industry and act as a deterrent.

So in what circumstances might a Court consider a HPO to be appropriate?

  • A HEPO was initially imposed and the immediate danger to the public has now passed but there is a risk of some future breach of the regulations
  • If a company cannot be trusted to be a food business operator without creating a serious risk to public health
  • The facts of any particular offence alone justify the imposition of a HPO
  • A series of long-standing breaches which were accepted or condoned by the management
  • A single incident was so serious and has had such disastrous consequences
  • A history of convictions or a failure to heed warnings or advice

What about the level of fine?

The Court of Appeal also took the opportunity to give guidance on the levels of fines that should be imposed for food safety offences, finding that there should be no difference in approach to that taken in health and safety cases, where regard is had to the size of the business, its turnover and profits when fixing the level of a fine.

This is an important steer given that in the Crown Court, fines for breaches of food hygiene regulations are unlimited and it is clear that from now on the lower Courts should have proper regard to the financial impact on the business, including where necessary sending a serious warning to those with a financial stake in the business, when setting fines.

The case of Crestdane reinforces to business to pay close attention to their food hygiene practices or otherwise risk a ban from the industry for good as well as hefty fines.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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