Cream substitutes

article 30(1) of The Food (Northern Ireland) Order 1989

• Status not determined
• Strict liability
• Either way
• Food, consumer protection, trading standards, product safety and age-restricted sales

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

1 Subject to the provisions of this Article,

a person who sells, or offers or exposes for sale, for human consumption—

a any substance which resembles cream in appearance, but is not cream; or

b any article of food containing such

a substance; under

a description or designation which includes the word “cream” (whether or not as part of

a composite word), shall be guilty of an offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds

a person

Conduct

selling or supplying something the instrument restricts

Fault element

Strict liability

Burden of proof

Legal burden on the defendant

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

The defence, as drafted

ssession for the purpose of sale, any article or substance, it shall be a defence for the defendant to prove— a that he purchased it as being an article or substance which could lawfully be sold or otherwise dealt with as mentioned above, or, as the case may be, could lawfully be so sold or dealt with under the name or description or for the purpose under or for whi

What would breach article 30(1)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

1. Selling the goods under the Food (Northern Ireland) Order 1989 where the instrument prohibits the sale outright.
2. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
3. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial

Either way — magistrates’ court or Crown Court

Maximum fine

£200

Standard scale

Level 1

Maximum prison (summary)

3 months

Maximum prison (on indictment)

2 years

in Northern Ireland a reference to a level is construed as referring to the standard scale as it currently stands (Fines and Penalties (NI) Order 1984 art.5(3)), not as it stood when the instrument was made.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

• Sentencing organisations: fines and the means of a corporate defendant All courts in England and Wales

  How a fine on a company is arrived at from its turnover. Relevant far beyond the guidelines that state it, because a very large share of the offences in this corpus can only be committed by an organisation.

• Health and safety offences, corporate manslaughter and food safety and hygiene offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 February 2016

  Covers breaches of duty under the Health and Safety at Work etc. Act 1974 and the regulations made under it, and food safety and food hygiene offences. Sentencing turns on culpability and on the seriousness and likelihood of harm risked, not only on the harm that happened.

• Imposition of community and custodial sentences: definitive guideline All courts in England and Wales

  When a community order or custody is justified at all, and the presumption against short custodial sentences.

• Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017

  The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.

• General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019

  The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.

• Totality: definitive guideline All courts in England and Wales

  How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status

Status not determined

Made

16 May 1989

In force from

17 August 1989

Extent

Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order consolidates the Food and Drugs Act (Northern Ireland) 1958, the Control of Food Premises (Northern Ireland) Order 1979 and the provisions amending them.

Read the full note and every offence in this instrument

Other offences in the same instrument

• Prohibition on sale, etc., of food unfit for human consumptionarticle 10(1)
• Prohibition on sale, etc., of food unfit for human consumptionarticle 10(2)
• Products of knackeriesarticle 14(1)
• Power of court to disqualify person for carrying on a food businessarticle 16(4)
• Registration of manufacturers of, and traders in, ice-creamarticle 18(12)
• Registration of manufacturers of, and traders in, ice-creamarticle 18(2)
• Closure of premisesarticle 22(5)
• Emergency order for closure of premisesarticle 23(6)
• Prohibition of sale of milk from diseased cowsarticle 28(1)
• Certain additions not to be made to milk and certain liquids not to be sold as milkarticle 29(1)
• Certain additions not to be made to milk and certain liquids not to be sold as milkarticle 29(2)
• A person who— a adds any substance to food, b uses any substance as an ingredient in the preparation of…article 3(1)

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis

the provision says a person is “guilty of an offence”

Confidence

0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source

• This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
• The Food (Northern Ireland) Order 1989 Every offence this instrument creates, and its explanatory note
• Food, consumer protection, trading standards, product safety and age-restricted salesOther offences on the same subject
• Offences created in 1989