UK Offence Report

Chill holding requirements

paragraph 2(1) of SCHEDULE 4 of The Food Hygiene (Wales) Regulations 2006

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

1 Subject to sub-paragraph (2) and paragraph 3, any person who keeps any food—

a which is likely to support the growth of pathogenic micro-organisms or the formation of toxins; and

b with respect to which any commercial operation is being carried out, at or in food premises at

a temperature above 8°C will 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 This is the text as originally made; later amendments are not shown here.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
a person
Conduct
breaching the provision
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

h (2), be a defence for the accused to prove that he or she took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by the accused or by a person under the accused’s 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,

What would breach paragraph 2(1) of SCHEDULE 4?

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. Doing what the provision prohibits, or failing to do what it requires under the Food Hygiene (Wales) Regulations 2006.

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

The Ministry of Justice records offences under this instrument against offence code 9166 — 09166 - Triable either way offences under The Food Hygiene (Wales) Regulations 2006. That code may cover several provisions of the instrument, so a count against it is not a count of prosecutions under this provision alone.

No published per-offence figure was found for this provision. Offences created by statutory instrument very largely do not have their own code in the MoJ’s Outcomes by Offence data tool. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Revoked
Revoked by
The Food Hygiene (Wales) (Amendment) Regulations 2014
Revoked on
8 August 2014
Made
10 January 2006
In force from
11 January 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

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations revoke and re-enact with changes the Food Hygiene (Wales) Regulations 2005 (S.I. 2005/3292 (W.252)). The Food Hygiene (Wales) Regulations 2005 provided for the execution and enforcement in relation to Wales of certain Community instruments, referred to in those Regulations as “the Community Regulations”. The Community instruments in question are those specified in sub-paragraphs (a) to (c) of paragraph 4 below. By extending the definition of the phrase “the Community Regulations” in these Regulations to include the Community instruments specified in sub-paragraphs (d) and (e) of paragraph 4 below, these Regulations provide for the execution and enforcement in relation to Wales of all the Community instruments specified in that paragraph. The Community instruments specified in paragraph 4 below are defined in Schedule 1. These Regulations update the definitions of the Community instruments specified in sub-paragraphs (a) to (c) of paragraph 4 below to take account of certain Commission Regulations that both enter into force on and apply from 11 January 2006. The Commission Regulations amend those Community instruments or as the case may be affect the way that they are to be read. The Community Instruments are— 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); 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); Commission Regulation (EC) No. 2073/2005 on microbiological criteria for foodstuffs (OJ No. L338, 22.12.2005, p.1); and Commission Regulation (EC) No. 2075/2005 laying down specific rules on official controls for Trichinella in meat (OJ No. L338, 22.12.2005, p.60). The other major changes made by these Regulations are that— the previous enforcement arrangements are altered; and the scope of Schedule 5 (direct supply by the producer of small quantities of meat from poultry or lagomorphs slaughtered on the farm) is extended in the light of Article 3 of Commission Regulation (EC) No. 2076/2005 laying down transitional arrangements for the implementation of Regulations (EC) No. 853/2004, (EC) No. 854/2004 and (EC) No. 882/2004 of the European Parliament and of the Council and amending Regulations (EC) No. 853/2004 and (EC) No. 854/2004 (OJ No. L338, 22.12.2005, p.83). 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 under these Regulations 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 under these Regulations it is a defence for the accused to prove that he or she 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 under these Regulations 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 that officer or person 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 under these Regulations 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 that partner 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 National Assembly for Wales 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 must 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); make consequential amendments to specified instruments (regulation 33); and revoke the Food Hygiene (Wales) Regulations 2005 (regulation 34). A full Regulatory Appraisal on the effect that these Regulations will have on the costs of business has been prepared and placed in the Library of the National Assembly for Wales. Copies may be obtained from the Food Standards Agency, Southgate House, Wood Street, Cardiff CF10 1EW.

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