Application of various sections of the Food Safety Act 1990

Q: Is regulation 5(2) of The Contaminants in Food (England) Regulations 2006 a strict liability offence?

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

regulation 5(2) of The Contaminants in Food (England) Regulations 2006

Revoked
Requires proof of a state of mind
Summary only
Food, consumer protection, trading standards, product safety and age-restricted sales

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

8 Any person who knowingly contravenes the requirements of
a notice under subsection (2)(a) above shall be guilty of an offence and liable on summary conviction to
a fine not exceeding level
5 on the standard scale. .

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 This is the text as originally made; later amendments are not shown here.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: Requires proof of a state of mind
Burden of proof: No statutory defence — prosecution proves everything

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

Classifier’s reasoning: mens rea word in the offence-creating words: knowingly.

What would breach regulation 5(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.

On these words an offence is committed where a person knowingly contravenes the requirements of a notice under subsection (2)(a) above.
Being served with a notice under the Contaminants in Food (England) Regulations 2006 and doing nothing by the date it specifies.
Doing part of what the notice requires, where it required all of it.
Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial: Summary only — tried in a magistrates’ court
Maximum fine: £5,000
Standard scale: Level 5
Maximum prison (summary): Not determined

this is the level 5 value when the instrument came into force (2006-07-01); 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.

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: Revoked
Revoked by: The Contaminants in Food (England) Regulations 2007
Revoked on: 1 March 2007
Made: 5 June 2006
In force from: 1 July 2006
Extent: Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

These Regulations, which apply in relation to England only, revoke and re-enact with changes the Contaminants in Food (England) Regulations 2005 (S.I. 2005/3251)(“the 2005 Regulations”). They make provision for the execution and enforcement of Commission Regulation (EC) No. 466/2001 setting maximum levels for contaminants in foodstuffs (OJ No. L77, 16.3.2001, p.1, as corrected and amended) (“the Commission Regulation”). Since the 2005 Regulations were made, the Commission Regulation has been amended so as to — introduce maximum permitted levels and other controls relating to certain Fusarium toxins (Commission Regulation (EC) No 856/2005, OJ No L143, 7.6.2005, p.3); and introduce new or amended controls relating to dioxins and the sum of dioxins and dioxin-like PCBs (Commission Regulation (EC) No 199/2006, OJ No L32, 4.2.2006, p.34). The Regulations — provide that it is an offence, (except in certain cases relating to food placed on the market before a date given in specified Community legislation) — to place on the market certain foods if they contain contaminants of any kind specified in the Commission Regulation at levels exceeding those specified (subject to a derogation applicable to certain types of lettuce and to fresh spinach), to use food containing such contaminants at such levels as ingredients in the production of certain foods, to mix foods that do not comply with the maximum levels referred to above with foods which do comply, to mix foods to which the Commission Regulation relates and which are intended for direct consumption with foods to which the Commission Regulation relates and which are intended to be sorted or otherwise treated prior to consumption, or to detoxify by chemical treatment food not complying with the limits specified in the Commission Regulation (regulation 3); specify the enforcement authorities (regulation 4); provide for the application of specified provisions of the Food Safety Act 1990 for the purposes of these Regulations (regulation 5); make a consequential amendment to the Food Safety (Sampling and Qualifications) Regulations 1990 in so far as they apply in relation to England (regulation 6), the effect being to disapply the sampling and analysis provisions of those Regulations only to the extent that those matters are regulated by the Community instruments mentioned in paragraph 3(a) to (f) below. The Commission Regulation specifies the Community methods of sampling and analysis that are required to be used for the official control of levels of the substances covered by it. Those methods are set out in — Commission Directive 2001/22/EC laying down the sampling methods and the methods of analysis for the official control of the levels of lead, cadmium, mercury and 3-MCPD in foodstuffs (OJ No. L77, 16.3.2001, p.14), as corrected by Commission Decision 2001/873/EC (OJ No. L325, 8.12.2001, p.34), and as amended by Commission Directive 2005/4/EC (OJ No. L19, 21.1.2005, p.50); Commission Directive 2002/63/EC establishing Community methods of sampling for the official control of pesticide residues in and on products of plant and animal origin (OJ No. L187, 16.7.2002, p.30); Commission Directive 2002/69/EC laying down the sampling methods and the methods of analysis for the official control of dioxins and the determination of dioxin-like PCBs in foodstuffs (OJ No. L209, 6.8.2002, p.5), as corrected by a corrigendum published on the 20th September 2002 (OJ No. L252, 20.9.2002, p.40), and as amended by Commission Directive 2004/44/EC (OJ No. L113, 20.4.2004, p.17); Commission Directive 2004/16/EC laying down the sampling methods and the methods of analysis for the official control of the levels of tin in canned foods (OJ No. L42, 13.2.2004, p.16); Commission Directive 2005/10/EC laying down the sampling methods and the methods of analysis for the official control of the levels of benzo(a)pyrene in foodstuffs (OJ No. L34, 8.2.2005, p.15), and Commission Regulation (EC) No. 401/2006 laying down the methods of sampling and analysis for the official control of the levels of mycotoxins in foodstuffs (OJ No. L 70, 9.3.2006, p.12). This Regulation repeals the sampling and analysis Directives 98/53/EC, 2002/26/EC, 2003/78/EC and 2005/38/EC, and stipulates that any reference to those Directives in the Commission Regulation is to be read as a reference to Commission Regulation (EC) 401/2006. A full regulatory impact assessment of the effect that this instrument will have on the costs of business has been prepared and placed in the Library of each of the Houses of Parliament. Copies may be obtained from the Chemical Safety 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

Subject to the transitional arrangements contained in the Community provisions specified in paragraph (2), a…regulation 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 Contaminants in Food (England) Regulations 2006 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 2006