UK Offence Report

5 An operator of an establishment commits an offence if, without reasonable excuse, the operator— a fails to…

regulation 5 of The Food Hygiene Rating (Promotion of Food Hygiene Rating) (Wales) Regulations 2016

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 An operator of an establishment commits an offence if, without reasonable excuse, the operator—

a fails to comply with the requirements of regulation 3; and

b fails to comply with the requirement of regulation 4(2).

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 This is the text as originally made; later amendments are not shown here.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 operator
Conduct
failing to comply with a notice or direction
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

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 an operator 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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

5 An operator of an establishment commits an offence if, without reasonable excuse, the operator— a fails to comply with the requirements of regulation 3; and b fails to comply with the requirement of regulation 4(2).

What would breach regulation 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. Being served with a notice under the Food Hygiene Rating (Promotion of Food Hygiene Rating) (Wales) Regulations 2016 and doing nothing by the date it specifies.
  2. Doing part of what the notice requires, where it required all of it.
  3. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

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
Status not determined
Made
18 March 2016
In force from
28 November 2016
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 make provision in relation to the promotion of food hygiene ratings under the Food Hygiene Rating (Wales) Act 2013 (“the Act”). Regulation 2 provides that these Regulations apply to establishments which supply takeaway food. Regulation 3 sets out what food operators must do to promote their food hygiene rating and provides what must be displayed on their printed publicity materials. Regulation 4 provides that where food operators choose to display a food hygiene rating on their printed publicity materials in addition to the statement it is required to display, that rating must comply with the requirements of regulation 4(2) and Schedule 1. Regulation 5 makes it an offence for a food business establishment operator to fail to comply with the requirements of regulations 3 and 4(2). Regulation 6 provides that where a body corporate (such as a company, or any other body incorporated by statute) commits an offence under the Regulations, a director, manager or secretary of that body (or anyone purporting to act in any such capacity) will also be guilty of an offence in circumstances where they are found to be personally culpable. Regulation 7 provides that food authorities may enforce these Regulations and regulation 8 provides a power of entry and seizure of documents to authorised officers of food authorities to enforce the Regulations. Regulation 9 provides that an offence under the Regulations is triable in the Magistrates Court and punishable by a fine not exceeding level 3 on the standard scale. Regulation 10 enables an authorised officer of a food authority to issue a fixed penalty notice (FPN) to a person they have reason to believe has committed an offence under the Regulations. An authorised officer may offer that person the opportunity to discharge any liability to conviction for the offence by payment of a fixed penalty. If the fixed penalty is not paid, the food authority retains the power to prosecute. This regulation also introduces Schedule 2. Part 1 of Schedule 2 sets out the procedure for fixed penalty notices and the level of fixed penalties payable in respect of an offence under these Regulations. Part 2 of Schedule 2 makes provision in relation to the form and content of fixed penalty notices. Regulation 11 provides that food authorities must use the receipts it receives from fixed penalties for enforcing food hygiene in Wales. Regulation 12 prescribes information that a food authority must send to the operator of a food business establishment. The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained at the Health and Social Services Group, Welsh Government, Cathays Park, Cardiff CF10 3NQ. A draft of the Regulations was notified to the European Commission in accordance with Article 8 of Directive 98/34/EC of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations (OJ No L204, 21.7.1998, p. 37) last amended by Directive 98/48/EC (OJ No L217, 05.08.1998, p. 18).

Read the full note and every offence in this 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 “commits 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