Condemnation of food

Q: Is regulation 7 of The Emulsifiers and Stabilisers in Food (Scotland) Regulations 1989 a strict liability offence?

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.

regulation 7 of The Emulsifiers and Stabilisers in Food (Scotland) Regulations 1989

Status not determined
Strict liability
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

7 Where any food is certified by
a public analyst as being food which it is an offence against regulation
4 to sell or import into Scotland that food may be treated for the purposes of section
9 of the Act (under which food may be seized and destroyed on the order of
a justice of the peace) as being unfit for human consumption.

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 This is the text as originally made; later amendments are not shown here.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: No statutory defence — prosecution proves everything

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 states no defence, so the prosecution bears the burden on every element of the offence.

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

What would breach regulation 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.

Selling the goods under the Emulsifiers and Stabilisers in Food (Scotland) Regulations 1989 where the instrument prohibits the sale outright.
Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial: Not determined
Maximum fine: Not determined
Maximum prison (summary): Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

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.
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: 5 June 1989
In force from: 12 July 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

These Regulations, which apply to Scotland only, re-enact with amendments the Emulsifiers and Stabilisers in Food (Scotland) Regulations 1980, as amended, and come into force on 12th July 1989. The amended 1980 Regulations provided in particular for the implementation of Council Directive 74/329/EEC (OJ No. L189, 12.7.74, p.l), as amended by Council Directive 78/612/EEC (OJ No L197, 22.7.78, p.22) and Council Directive 80/597/EEC (OJ No. L155, 23.6.80, p.23) on the approximation of the laws of Member States relating to emulsifiers, stabilisers, thickeners and gelling agents for use in foodstuffs. They also provided for the implementation of Council Directive 78/663/EEC (OJ No. L223, 14.8.78 p.7), as amended by Council Directive 82/504/EEC (OJ No. L230, 5.8.82, p.35) laying down specific criteria of purity for emulsifiers, stabilisers, thickeners and gelling agents for use in foodstuffs, and Council Directive 78/664/EEC (OJ No. L223, 14.8.78, p.30) laying down specific criteria of purity for antioxidants for use in foodstuffs. In addition, these Regulations implement Council Directive 86/102/EEC (OJ No. L88, 3.4.86, p.40), which further amended Council Directive 74/329/EEC. As well as making a minor change in the serial numbers of pectin and amidated pectin, this amending Directive withdrew authority for the use of polyoxyethylene (8) stearate, polyoxyethylene (40) stearate, lactylated fatty acid esters of glycol and propane-1, 2-diol, and dioctyl sodium sulphosuccinate as emulsifiers and stabilisers in food. Pursuant to Council Directive 74/329/EEC, tartaric acid esters of mono-and di-glycerides of fatty acids (E472(d)) and mixed acetic and tartaric acid esters of mono-and di-glycerides of fatty acids (E472(f)) are added to the list of permitted emulsifiers and stabilisers and specific purity criteria are laid down in Schedule 1. Regulation 4(2) and Schedule 2 Part I prescribe a maximum level for guar gum and locust bean gum in food. Generally, the Regulations— a specify permitted emulsifiers and permitted stabilisers and prescribe purity criteria for those emulsifiers and stabilisers (regulation 2 and Schedule 1); b prohibit the sale and importation of food which contains any added emulsifier or stabiliser other than those prescribed and regulate the sale of food containing permitted emulsifiers and stabilisers (regulation 4 and Schedule 2); c regulate the sale, importation, advertisement and labelling of permitted emulsifiers and permitted stabilisers sold for use as ingredients in the preparation of food (regulations 5 and 6 and Schedule 3); d do not apply to any emulsifier and stabiliser, or to any food having in it or on it any emulsifier or stabiliser, which is intended for export (regulation 3). The Food Chemicals Codex 1981, referred to in regulation 2(1) and Part II of Schedule 1, may be consulted by prior arrangement with the Librarian, University Library, Glasgow G1 8QE (telephone 041-339 8855). The Food and Nutrition Paper No. 4 (1978) of the United Nations' Food and Agriculture Organisation is available from Her Majesty’s Stationery Office.

Read the full note and every offence in this instrument

Other offences in the same instrument

If any person contravenes or fails to comply with any of the foregoing provisions of these Regulations he…regulation 8(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 0.90.

Basis: the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence: 0.90 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 Emulsifiers and Stabilisers in Food (Scotland) Regulations 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