Experienced criminal defence solicitor who represents clients accused of food safety offences
Jim is a defence solicitor with over 28 years‘ experience of criminal litigation; if you work in the food industry, whether you’re a single-shop takeaway or an international manufacturer, Jim can provide advice and representation in relation to:
Investigations or prosecutions by Environmental Health or Trading Standards Services;
Improvement Notices, including appeals; and
Food Hygiene policies and procedures.
Jim has a detailed knowledge of the procedures followed in a prosecution by Environmental Health (including those brought under the Food Safety and Hygiene (England) Regulations 2013, the Food Safety Act 1990 and Food Labelling Regulations 1996) and if you are facing an enforcement action or prosecution he can provide expert advice at every stage. This includes:
Attending an interview under caution;
Providing written statements;
Representing you at Court;
Protecting the future of your business following an investigation or prosecution by the regulator.
In applying for a summons to commence a prosecution, CPR 7.2(3)(b)(i) required an applicant to at least refer to any statutory time limit applicable to the offence to demonstrate that the application had been made in time. The Food Standards Agency was not permitted to resile on appeal by way of case stated from the position it had taken in the magistrates' court where it conceded that it had not complied with the rule and that the applications were therefore a nullity.
It was a criminal offence for a shop to offer food for sale after its labelled use by date. The words "deemed to be unsafe" in Regulation 1169/2011 art.24 created an irrebuttable presumption that food placed on the market with an expired use by date was "unsafe" for the purposes of Regulation 179/2002 art.14.
CA (Crim Div) (Sir Brian Leveson PQBD, Stuart-Smith J, Jeremy Baker J)
16 May 2019
The conviction of the owner of a food takeaway business for gross negligence manslaughter, following the death of a customer who suffered from a peanut allergy, was quashed as unsafe. When directing the jury, the judge had conflated the general duty owed by the owner to ensure that appropriate safety systems were in place to protect customers with declared allergies and the duties of those responsible for ensuring that appropriate steps had been taken.
CA (Crim Div) (Hickinbottom LJ, Openshaw J, Judge Topolski QC)
8 November 2017
A sentence of six years' imprisonment for gross negligence manslaughter was appropriate where a restaurant owner had persistently failed over several months to take steps to ensure that customers suffering from peanut allergies were not served with food containing peanuts. Even after one customer had suffered a violent allergic reaction, he did not improve his systems, with the consequence that another customer died after suffering an allergic reaction.
SC (Lady Hale (Deputy President), Lord Kerr JSC, Lord Wilson JSC, Lord Carnwath JSC, Lord Toulson JSC )
31 July 2013
Under the Food Labelling Regulations 1996 reg.44(1)(d) it was sufficient for the prosecution to prove that a defendant had food in its possession for the purposes of sale which was the subject of a mark or label showing a "use by" date which had passed.
Convictions for falsely describing or presenting food were quashed and remitted to the magistrates' court where each information was duplicitious, alleging offences under both the Food Safety Act 1990 s.15(2) and s.15(3). In obiter comments, the question of whether, in light of the need for a cards on the table approach, a failure to take a duplicity point at the appropriate time prevented it from being taken later was left open.
CA (Crim Div) (NI) (Higgins LJ, Coghlin LJ, Treacy J)
29 June 2012
Payments received by landowners for permitting waste to be deposited on their land were, in reality, payments for the provision of an ongoing facility to conceal the presence of the waste and had therefore been properly classed as benefit from criminal conduct where the landowners had been convicted of "keeping" controlled waste contrary to the Waste and Contaminated Land (Northern Ireland) Order 1997 art.4(1)(b) and art.4(1)(c). It was irrelevant that the payments pre-dated the coming into force of the Proceeds of Crime Act 2002.
A failure to comply with the Criminal Justice and Police Act 2001 s.52 by a person exercising a power of seizure conferred by s.50 of the Act did not necessarily render a seizure under s.50 unlawful; it was merely a matter to be taken into account on an application under s.59 of the Act or in judicial review proceedings.
It was not open to a magistrates' court to rely on a statement by a defendant acting in person made to the court's legal adviser, who was assisting the defendant to put his case in a procedure approved by the Criminal Procedure Rules 2005 Pt 37, as such statements were not evidence.
A magistrates' court had been wrong to find that a prosecution under the Environmental Protection Act 1990 s.34 was an abuse of process. Although the prosecuting local authority's waste management enforcement policy allowed for courses of action other than prosecution, it was for it to decide when to prosecute, and it was only when an abuse was plainly shown that a court should intervene.
A magistrates' court had no power at a preliminary stage of an appeal against an abatement notice to allow the amendment of the notice; however, it did have power under the Statutory Nuisance (Appeals) Regulations 1995 reg.2(5) when making a final order on an appeal to vary a notice so that it took effect as if it had originally been served on another person in substitution for the person named on it, or on another person in addition to the person named on it.
On its true construction the Food Safety (General Food Hygiene) Regulations 1995 Sch.1 para.3 created more than one offence and differentiated between the need to protect against the contamination of food and the need to have adequate procedures in place to ensure pests were controlled.
A due diligence defence under the Food Safety Act 1990 s.21 (1) could not be relied upon or established where responsibility for a default or omission had been found to lie with a person not included in the defence case. The Administrative Court had power under the Supreme Court Act 1981 s.28A(3)(b) to remedy the defect of a failure to serve a notice under s.21(5) of the 1990 Act by allowing an application to include a defaulting party in order to establish a defence of due diligence.
The appellant company, as a group holding company, was the "proprietor" of a food business within the meaning of s.53 Food Safety Act 1990 for the purposes of unchallenged breaches of reg.4(1) Food Safety (General Food Hygiene) Regulations 1995 in respect of a public house.
In a prosecution under s.8(1) Food Safety Act 1990, the question to be asked in order to determine whether "discovery" of the offence had occurred under s.34 of the Act was whether the facts disclosed, objectively considered, would have led the prosecuting authority to have reasonable grounds to believe that the offence might have been committed by some person who had been identified to it.
A Magistrates' Court had erred in holding that there was no case for the respondent to answer in respect of an alleged statutory nuisance and breach of an abatement notice in circumstances where there was clear evidence from environmental health officers that the nuisance had been committed.
A local authority was entitled to issue summonses under the Food Safety Act 1990 in its own name rather than in the name of an individual.
QBD (Admin) (Jack Beatson QC)
13 December 2000
A decision of the Dental Practice Board to defer determination of claims for payment submitted by orthodontists suspected of fraud amounted to suspending them from practice in a manner which was inconsistent with the intention of the legislature. Where it was practicable to determine a claim there was a duty to do so and, in making a block decision in respect of all claims whatever their category and failing thereafter to reconsider and review that decision in light of any changes in circumstances, the Board had acted irrationally.
DC (Lord Bingham of Cornhill LCJ, Astill J)
5 April 2000
Where a prosecuting authority had been misled as to the identity of the proper defendant, delay in the laying of informations and/or the service of a summons did not constitute an abuse of process.
DC (Kennedy LJ, Butterfield J)
31 March 2000
A smoke nuisance under s.79(b) Environmental Protection Act 1990, could include the smell of smoke.
DC (Schiemann LJ, Astill J)
27 March 2000
Community law did not allow eggs to be sold in a box marked with a range of laying dates when the date was not marked on the eggs themselves, and accordingly the respondent had committed an offence under the Eggs (Marketing Standards) Regulations 1995.
HCJ (Lord Cullen LJC, Lord Cowie, Lord Weir)
16 March 2000
A company charged with the contamination of a public water supply would not be denied a fair trial when the jurors were drawn from the area affected by the contamination because the water supply was only interrupted for a short period and the usual practical steps to ensure the jury's impartiality could be taken.
CA (Crim Div) (Mantell LJ, Rougier J, Judge Francis Allen)
14 March 2000
Appeals against conviction for offences of: (i) selling food for human consumption that failed to comply with food safety requirements; and (ii) of storing food at a temperature below that which was legally required. As to (i), there was no substance in the appellants' claim that the judge should have dismissed the case as an abuse of process on the ground that they were unable to test the food sample for themselves and accordingly, that appeal failed. As to (ii), there was no direct evidence that the temperature of the food sample taken by environmental health officers was capable of causing a risk to the public and accordingly, that appeal succeeded.