UK Offence Report

Application of various provisions of the Food Safety Act 1990

regulation 10(2) of The Food (Control of Irradiation) Regulations 1990

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

2 Section 8(3) (which makes presumptions in the case of batches etc. of food) of the Act shall apply to food which it is an offence to sell under these Regulations as it applies to food which fails to comply with food safety requirements.

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 This is the text as originally made; later amendments are not shown here.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

1 In any proceedings for an offence under these Regulations it shall be a defence for the person charged to prove— a that the food, in respect of which the offence is alleged to have been committed, was intended for export to another member State of the European Economic Community and that the food complied with that member State’s domestic food legislation relevant to t

What would breach regulation 10(2)?

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 it is an offence to sell under these Regulations as it applies to food which fails to comply with food safety requirements.
  2. Selling the goods under the Food (Control of Irradiation) Regulations 1990 where the instrument prohibits the sale outright.
  3. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
  4. 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.

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
Revoked
Revoked by
The Food Irradiation (Wales) Regulations 2009
Revoked on
31 July 2009
Made
10 December 1990
In force from
1 January 1991
Extent
Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

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 apply to Great Britain, revoke previous regulations which prohibited the sale of irradiated food (regulation 11), and permit the sale of specified types of irradiated food (regulation 6 as read with regulation 2, 3, 4 and Schedules 1 and 2) where the irradiation has taken place under licence. Where irradiation takes place in England and Wales the licence falls to be granted by the Minister of Agriculture, Fisheries and Food, the Secretary of State for Health and the Secretary of State for Wales, acting jointly; in Scotland, the Secretary of State for Scotland is the licensing authority; Schedule 1 sets out the procedure for grant, terms, variation and suspension of licences. It also provides for charges to be payable following an application for grant and agreement for variation of licences and in relation to the carrying out of inspections. Where irradiation takes place in another EC member State, food can only be imported if the irradiation has taken place in a plant subject to official authorisation, recognition of which depends on those specified Ministers of the Crown jointly being satisfied that the official authorisation gives a standard of health protection equivalent to that given by an irradiation licence in Great Britain (Schedule 2—see in particular paragraph 2(1)). Where irradiation takes place elsewhere overseas, food can only be imported if the exporting country is approved by those specified Ministers of the Crown acting jointly, and approval cannot be given unless those Ministers are satisfied that a licensing system with equivalent health protection operates in the exporting country (Schedule 2—see in particular paragraph 2(2)). The specified types of food which may be irradiated, or imported after irradiation, are fruit, vegetables, cereals, bulbs and tubers, spices and condiments, fish and shellfish and poultry (regulation 2(2) as read with regulation 3 and Schedule 1, Part II, paragraph 12 on home produced food and with regulation 4(1) in relation to imported food); regulation 2(2)(e) specifies the limits of overall average dose of ionising radiation which apply. The provisions of any licence granted under Schedule 1 must include a requirement to segregate irradiated food from other food in the premises to which the licence applies (Schedule 1, paragraph 8) and a prohibition on re-irradiation (Schedule 1, paragraph 9). These Regulations also make provision for records to be kept by licensees (regulation 3 and Schedule 1), to be provided on import (Schedule 2), and to accompany irradiated food while it is being stored or transported (regulation 5 and Schedule 3). They also make provision for parallel treatment of food irradiated in Northern Ireland (regulation 7), for a defence in relation to exports (regulation 8), for offences, penalties and enforcement (regulation 9), and for application (regulation 10) of provisions of the Food Safety Act 1990 where those provisions would not otherwise apply to regulations under that Act; thus no specific provision is made for a power of entry, but that power, by virtue of section 32 of the 1990 Act, applies automatically for the purposes of regulations under that Act, whereas the due diligence defence in section 21 of that Act, which would not otherwise apply to these Regulations, is specifically provided for.

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 0.90.

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