UK Offence Report

Remedial action notices and detention notices

regulation 9(7) of The Food Hygiene (Scotland) Regulations 2005 (revoked)

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

7 Any person who fails to comply with

a remedial action notice or

a detention notice is 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 This is the text as originally made; later amendments are not shown here.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
failing to comply with a notice or direction
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

ct to paragraph (2), be a defence to prove that the accused took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by the accused or by a person under the accused’s control. 2 If in any case the defence provided by paragraph (1) involves the allegation that the commission of the offence was due to an act or default of another person,

What would breach regulation 9(7)?

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. On these words an offence is committed where a person fails to comply with a remedial action notice or a detention notice.
  2. Being served with a notice under the Food Hygiene (Scotland) Regulations 2005 and doing nothing by the date it specifies.
  3. Doing part of what the notice requires, where it required all of it.
  4. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
3 months
Maximum prison (on indictment)
2 years

in Scotland a reference to a level is construed as referring to the standard scale as it currently stands (CP(S)A 1995 s.225(2)), 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.

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
7 October 2005
In force from
1 January 2006
Extent
S

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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations, which extend to Scotland only, provide for the execution and enforcement there of– a Regulation (EC) No. 852/2004 of the European Parliament and of the Council on the hygiene of foodstuffs (O.J. No. L 139, 30.4.04, p.1; the revised text of this Regulation is now set out in a Corrigendum, O.J. No. L 226, 25.6.04, p.3); b Regulation (EC) No. 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin (O.J. No. L 139, 30.4.04, p.55; the revised text of this Regulation is now set out in a Corrigendum, O.J. No. L 226, 25.6.04, p.22) as read with Directive 2004/41/EC, (O.J. No. L 157 30.4.04, p.33; the revised text of this Directive is now set out in a Corrigendum, O.J. No. L 195, 2.6.04, p. 12); and c Regulation (EC) No. 854/2004 of the European Parliament and of the Council laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (O.J. No. L 155, 30.4.04, p.206; the revised text of this Regulation is now set out in a Corrigendum, O.J. No. L 226, 25.6.04, p.83) as amended by Regulation (EC) No. 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (O.J. No. L 165, 30.4.04, p.1; the revised text of this Regulation is now set out in a Corrigendum, O.J. No. L 191, 28.5.04, p.1) as read with Directive 2004/41/EC, referred in these Regulations as “the Community Regulations”. These Regulations– a create certain presumptions that, for the purposes thereof, specified food is intended for human consumption (regulation 3); b provide that the Food Standards Agency is the competent authority for the purposes of the Community Regulations and make provision for the Agency to delegate that function to, or enter into an arrangement concerning that function with, any other enforcement authority (regulation 4); c make provision for the enforcement and execution of these Regulations and of the Community Regulations including the appointment of authorised officers (regulation 5); d provide for the following enforcement measures to be available in respect of a food business operator– i hygiene improvement notices (regulation 6); ii hygiene prohibition orders (regulation 7); iii hygiene emergency prohibition notices and orders (regulation 8), and iv in respect of establishments subject to approval under Regulation (EC) No. 853/2004 remedial action notices and detention notices (regulation 9); e provide that where the commission of an offence under them is due to the act or default of some other person that other person is guilty of the offence (regulation 10); f provide that in proceedings for an offence under them it is a defence for the accused to prove that all reasonable precautions were taken and all due diligence exercised so as to avoid the commission of the offence (regulation 11); g provide for the procurement and analysis of samples (regulations 12 and 13); h provide powers of entry for authorised officers of an enforcement authority (regulation 14); i create the offence of obstructing an officer (regulation 15); j provide a time limit for bringing prosecutions (regulation 16); k provide that a person who contravenes or fails to comply with specified provisions of Regulation (EC) No. 852/2004 or Regulation (EC) No. 853/2004 is guilty of an offence (regulation 17(1)); l provide penalties for offences (regulation 17(2) and (3)); m provide that a person is considered not to have contravened or failed to comply with a specified provision of Regulation (EC) No. 852/2004 (requirement for bulk foodstuffs in liquid, granulate or powder form to be transported in receptacles and/or containers tankers reserved for the transport of foodstuffs) provided the requirements of Schedule 3 are complied with (regulation 17(4)); n provide that where an offence under them which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, an officer of the body corporate or a person purporting to act as such that person as well as the body corporate is deemed to be guilty of that offence and may be proceeded against and punished accordingly (regulation 18); o provide that where an offence under them which has been committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner that partner as well as the partnership is deemed to be guilty of that offence and may be proceeded against and punished accordingly (regulation 19); p provide rights of appeal in respect of hygiene improvement notices, remedial action notices, hygiene prohibition orders and hygiene emergency prohibition orders (regulations 20 to 22); q provide for the application of section 9 of the Food Safety Act 1990 (1990 c. 16) (regulation 23); r provide for the issue to food authorities by the Scottish Ministers of codes of recommended practice as regards the execution and enforcement of these Regulations and the Community Regulations (regulation 24); s provide for the protection of officers acting in good faith (regulation 25); t provide for the revocation or suspension of the designation or as the case may be appointment of specified officials (regulation 26); u provide that when an authorised officer of an enforcement authority has certified that any food has not been produced, processed or distributed in compliance with these Regulations and the Community Regulations, it shall be treated for the purposes of section 9 of the Food Safety Act 1990 as failing to comply with food safety requirements (regulation 27); v provide for the service of documents (regulation 28); w provide that the provisions set out in the following Schedules have effect– i Schedule 3 (bulk transport in sea-going vessels of liquid oils or fats and of raw sugar (regulation 29); ii Schedule 4 (temperature control requirements) (regulation 30); iii Schedule 5 (direct supply by the producer of small quantities of meat from poultry and lagomorphs slaughtered on the farm) (regulation 31), and iv Schedule 6 (restrictions on the placing on the market of raw milk and raw cream intended for direct human consumption) (regulation 32) and constitute failure to comply with those Schedules a criminal offence; x make a consequential amendment (regulation 33); and y provide for the revocation of specified instruments in so far as they extend to Scotland (regulation 34). A full regulatory impact assessment, which includes a compliance cost assessment of the effect which these Regulations will have on business costs has been prepared and placed in the Scottish Parliament Information Centre. Copies may be obtained from the Food Standards Agency (Scotland), 6th Floor, St Magnus House, 25 Guild Street, Aberdeen AB11 6NJ.

Read the full note and every offence in this instrument

Other offences in the same instrument

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