“The Officers of the Tendring District Council have duties under a number of UK Food Hygiene Regulations and other EU legislation. These duties include enforcement action". The policy stated here is based upon the principle that the application of enforcement powers should be fair and consistent, and should be based upon an assessment of the risks to public health. The purpose of any enforcement is to ensure that food is safe to eat.
The method of enforcement within food premises in Tendring District is detailed in the Framework Agreement which is the Food Safety Plan for enforcement for the current year Food Safety Framework Agreement 2011 - 2012.
1. The primary responsibility for ensuring food safety lies with those who operate food businesses; in particular food business operators need to recognise their responsibility for food safety.
2. Tendring District Council’s approach to enforcement reflects the responsibilities laid upon the Council by relevant Food Hygiene Regulations and the range of powers that regulations have made available.
3. Depending on particular circumstances, the Council may use a variety of means to ensure that proprietors meet their responsibilities. The Council’s options include education, advice, guidance, warning letters, formal cautions, improvement and emergency prohibition notices or prosecutions. The Council will generally reserve prosecutions (criminal proceedings) for the more serious offences which either resulted, or could have resulted, in serious injury or ill-health, or which represented a blatant disregard by employers, employees, or others of their responsibilities under food safety legislation.
Enforcing food safety law
4. The Council enforcement officers’ primary concern is the prevention of food-related illness and dangers. This is best achieved by encouraging effective management of food safety by those who create the risks. Enforcement officers seek to help businesses improve their management of food safety by giving guidance on safe food handling. They are a source of help on how best to maintain good standards in conformity with the law, and their guidance is usually followed.
5. Enforcement officers have to exercise considerable discretion when approaching individual proprietors. Most proprietors are, in the Council’s experience, anxious to comply with the law, and a growing number realise the economic benefits of good food safety management.
In such cases an enforcement officer’s role will often be to guide and support. However, in carrying out their functions, duly authorised enforcement officers have a range of powers and may, for example, in certain circumstances seize foods which contravene the legislation.
If enforcement officers find evidence that the law is being (or has been) broken, they can respond in various ways. They may instruct or warn by letter, they may issue emergency prohibition notices or improvement notices requiring immediate prohibition of the operation of a process or the use of premises or compliance within a specified time, or they may prosecute.
Notices are effective and quick and require proprietors to put dangerous situations right, without the delay and uncertainty of going to court. For these reasons, enforcement officers issue a number of notices every year. However, if the circumstances warrant it, they will prosecute without any prior warnings and without any recourse to alternative sanctions.
6. In keeping with its preventive role, a Local Authority may use prosecution as a way to draw attention to the need for compliance and the maintenance of good standards. Enforcement officers investigating breaches of the law consider the potential of those breaches to cause harm, as well as considering any harm actually caused. Thus the Council may seek prosecution if a breach has significant potential for harm, regardless of whether it has caused an injury.
7. In all instances, the Council will have regard to the approved Codes of Practice issued by or under the authority of the Secretary of State in determining the most appropriate course of action to take.
8. In deciding whether to prosecute the Council will consider the following factors:
- The seriousness of the alleged offence;
- The previous history of the party concerned;
- The likelihood of the defendant being able to establish a due diligence defence;
- The ability and willingness of any important witnesses to co-operate;
- Whether the evidence available provides a realistic prospect of conviction (in this respect the Council is guided by the Code for Crown Prosecutions published by the Crown Prosecution Service);
- The willingness of the alleged offender to prevent a recurrence of the problem;
- The probable public benefit of a prosecution and the importance of the case — e.g., whether it might establish legal precedent for other companies or for other geographical areas;
- Whether other action, such as issuing a simple caution in accordance with Home Office Circular 016/2008, or an improvement notice, or imposing a prohibition, would be more appropriate or effective. (It is possible in exceptional circumstances to prosecute as well as issuing a notice; failure to comply with a notice would be an additional offence);
- Any explanation offered by the affected company.
9. The decision to proceed with a court case rests with the Council itself.
The prosecution of individuals
10. The Food Hygiene (England) Regulations 2006 allow for the prosecution of individuals who have committed a food safety offence. The Council’s policy is to identify and prosecute individuals if a conviction is warranted and can be secured, but a food safety offence is often the result of the negligent or ignorant acts of more than one person. This means that it is difficult to prove a link between some incidents and individual directors, managers and employees. However, a local authority have the option of taking a case against a food business, i.e. a limited company or partnership, instead of a named individual, and will seek to do so where the circumstances justify it.
11. Penalties have to be commensurate with the offences. The Food Safety Act 1990 make provision for this, providing for an unlimited fine with up to two years imprisonment for the most serious offences.
£5,000 or six months imprisonment or both
11(a) Offences dealt with in magistrates’ courts
Section 33(1): Obstruction etc. of officers.
£5,000 or three months imprisonment or both.
Section 7: Rendering food injurious to health; Section 8: Selling food not complying with food safety requirements; Section 14: selling food not of the nature, substance or quality demanded.
£20,000 or six months imprisonment or both.
All other offences under the Food Safety Act 1990.
11(b) Offences dealt with in crown courts
For all Offences detailed in 11(a) above.
Unlimited fine or two years imprisonment or both.
Consistence of enforcement standards between local authorities
12. National arrangements exist for co-ordination on enforcement standards between local authorities. The Local Authorities Coordinating Body on Regulatory Services (LACORS) provides a forum for the development of consistent national advice and training for all local authorities on enforcement issues.
If you have a specific query about food safety, or if you wish to report a food safety matter, please contact the Food Team:
Address: Tendring District Council, Environmental Services, Town Hall, Station Road, Clacton On Sea, Essex, CO15 1SE
Tel: 01255 686767