Application of various sections of the Food Safety Act 1990

Q: Is regulation 5(2) of The Contaminants in Food (England) Regulations 2010 (revoked) 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 2010 (revoked)

Status not determined
Requires proof of a state of mind
Summary only
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

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 This is the text as originally made; later amendments are not shown here.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 2010 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 (2010-10-20); 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: Status not determined
Made: 6 September 2010
In force from: 20 October 2010
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 in relation to England only, revoke and re-enact with changes the Contaminants in Food (England) Regulations 2009 (S.I. 2009/1223). They make provision for the continuing execution and enforcement of Commission Regulation (EC) No. 1881/2006 setting maximum levels for contaminants in foodstuffs (OJ No.L364, 20.12.2006, p.5) (“the Commission Regulation”). The Commission Regulation, which replaced amendments the provisions formerly contained in Commission Regulation (EC) No. 466/2001, has recently been amended by Commission Regulation (EU) No. 165/2010 which concerns maximum levels for aflatoxins and the treatment of certain foods found to contain aflatoxins in excess of those levels (OJ No. L50, 27.2.2010, p.8). The Commission Regulation has previously been amended by — Commission Regulation (EC) No. 1126/2007 (OJ No. L255, 29.9.2007, p.14), concerning maximum permitted levels for Fusarium toxins in maize and maize products; Commission Regulation (EC) No. 565/2008 (OJ No. L160, 19.6.2008, p.20), concerning maximum permitted levels for dioxins and PCBs in fish liver; Commission Regulation (EC) No. 629/2008 (OJ No. L173, 3.7.2008, p.6), concerning maximum permitted levels for certain heavy metals; and Commission Regulation (EU) No. 105/2010 (OJ No. L35, 6.2.2010, p.7), concerning maximum permitted levels for ochratoxin A. These Regulations also provide for the execution and enforcement of Commission Regulation (EC) No. 124/2009 (OJ No. L40, 11.2.2009, p.7) (“Regulation 124/2009”), which concerns maximum permitted levels for certain feed additives that may, in specified circumstances, occur in food. 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 EU legislation) — to place on the market certain foods if they contain contaminants of any kind specified in the Commission Regulation or in Regulation 124/2009 at levels exceeding those specified, to use food containing contaminants at levels in excess of those permitted by the Commission Regulation as ingredients in the production of certain foods, to mix foods that do not comply with the maximum levels prescribed by the Commission Regulation or Regulation 124/2009 with foods which do comply, to mix foods to which the Commission Regulation relates and which are intended for direct consumption or as food ingredients 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 containing mycotoxins in excess of 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 EU instruments mentioned in paragraph 5(a) to (d). The Commission Regulation specifies the European Union 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 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. L70, 9.3.2006, p.12), as amended by Commission Regulation (EU) No 178/2010 (OJ No. L52, 3.3.2010, p.32); Commission Regulation (EC) No. 1882/2006 laying down methods of sampling and analysis for the official control of levels of nitrates in certain foodstuffs (OJ No. L364, 20.12.2006, p.25); Commission Regulation (EC) No. 1883/2006 laying down methods of sampling and analysis for the official control of levels of dioxins and dioxin-like PCBs in certain foodstuffs (OJ No. L364, 20.12.2006, p.32); Commission Regulation (EC) No.333/2007 laying down the methods of sampling and analysis for the official control of the levels of lead, cadmium, mercury, inorganic tin, 3-MCPD and benzo(a)pyrene in foodstuffs (OJ No. L88, 29.3.2007, p29). A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from the Food Safety Group of the Food Standards Agency, Aviation House, 125 Kingsway, London WC2B 6NH and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website

Read the full note and every offence in this instrument

Other offences in the same instrument

Subject to the transitional arrangements contained in – a Article 11 of Commission Regulation 1881/2006; b…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 2010 (revoked) 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 2010