UK Offence Report

Hygiene emergency prohibition notices and orders

regulation 8(5) of The Food Hygiene (England) 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

5 As soon as practicable after the service of

a hygiene emergency prohibition notice, an authorised officer of an enforcement authority shall affix

a copy of the notice in

a conspicuous position on such premises used for the purposes of the food business as he considers appropriate; and any person who knowingly contravenes such

a notice 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 This is the text as originally made; later amendments are not shown here.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
an enforcement authority
Conduct
contravening a requirement of the instrument
Fault element
Requires proof of a state of mind
Burden of proof
Legal burden on the defendant

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (knowingly).

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: mens rea word in the offence-creating words: knowingly.

The defence, as drafted

aragraph (2), be a defence for the accused to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his 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, or to relianc

What would breach regulation 8(5)?

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 an enforcement authority knowingly contravenes such a notice.
  2. Doing the thing the provision prohibits under the Food Hygiene (England) Regulations 2005, whatever the reason for doing it.
  3. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

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

this is the level 5 value when the instrument came into force (2006-01-01); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

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
21 July 2005
In force from
1 January 2006
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations, which apply in relation to England only, provide for the execution and enforcement there of — Regulation (EC) No. 852/2004 of the European Parliament and of the Council on the hygiene of foodstuffs (OJ No. L139, 30.4.2004, p.1; the revised text of this Regulation is now set out in a Corrigendum, OJ No. L226, 25.6.2004, p.3); Regulation (EC) No. 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin (OJ No. L139, 30.4.2004, p.55; the revised text of this Regulation is now set out in a Corrigendum, OJ No. L226, 25.6.2004, p.22); and 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 (OJ No. L155, 30.4.2004, p.206; the revised text of this Regulation is now set out in a Corrigendum, OJ No. L226, 25.6.2004, p.83), referred in these Regulations as “the Community Regulations”. These Regulations — create certain presumptions that, for the purposes thereof, specified food is intended for human consumption (regulation 3); provide that the Food Standards Agency is the competent authority for the purposes of the Community Regulations except where it has delegated competences as provided for in the Community Regulations (regulation 4); make provision for the enforcement and execution of these Regulations and of the Community Regulations (regulation 5); provide for the following enforcement measures to be available in respect of a food business operator — hygiene improvement notices (regulation 6), hygiene prohibition orders (regulation 7), hygiene emergency prohibition notices and orders (regulation 8), and remedial action notices and detention notices (regulation 9); provide that where the commission of an offence thereunder is due to the act or default of some other person that other person is guilty of the offence (regulation 10); provide that in proceedings for an offence thereunder it is a defence for the accused to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence (regulation 11); provide for the procurement and analysis of samples (regulations 12 and 13); provide powers of entry for authorised officers of an enforcement authority (regulation 14); create the offence of obstructing an officer (regulation 15); provide a time limit for bringing prosecutions (regulation 16); 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)); provide penalties for offences (regulation 17(2) and (3)); 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)); provide that where an offence thereunder 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 he as well as the body corporate is deemed to be guilty of that offence and may be proceeded against and punished accordingly (regulation 18); provide that where an offence thereunder 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 he as well as the partnership is deemed to be guilty of that offence and may be proceeded against and punished accordingly (regulation 19); provide a right of appeal in respect of — the service of a hygiene improvement notice or a remedial action notice, the refusal of an enforcement authority to issue a certificate under specified provisions to the effect that they are satisfied that a food business operator has taken measures to secure that the health risk condition is no longer fulfilled with respect to the food business concerned, and the making of a hygiene prohibition order or a hygiene emergency prohibition order (regulations 20 to 22); provide for the application, for the purposes thereof, of section 9 of the Food Safety Act 1990 (1990 c. 16), but with a specified modification (regulation 23); provide for the issue to food authorities by the Secretary of State of codes of recommended practice (regulation 24); provide for the protection of officers acting in good faith (regulation 25); provide for the revocation or suspension of the designation or as the case may be appointment of specified officials (regulation 26); 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); provide for the service of documents (regulation 28); provide that the requirements set out in the following Schedules have effect — Schedule 3 (bulk transport in sea–going vessels of liquid oils or fats and the bulk transport by sea of raw sugar) (regulation 29), Schedule 4 (temperature control requirements) (regulation 30), Schedule 5 (direct supply by the producer of small quantities of meat from poultry and lagomorphs slaughtered on the farm) (regulation 31), and Schedule 6 (restrictions on the sale of raw milk intended for direct human consumption (regulation 32); and provide for the revocation of specified instruments to the extent specified (regulation 33). A full Regulatory Impact Assessment on the effect that these Regulations will have on the costs of business has been prepared and placed in the Library of each House of Parliament. Copies may be obtained from the Food Hygiene Implementation Division of the Food Standards Agency, Aviation House, 125 Kingsway, London WC2B 6NH.

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