The Food Safety and Hygiene (England) Regulations 2013 create criminal offences for breaches of specified food safety and hygiene requirements. These include failures to comply with hygiene obligations, obstruction of authorised officers, provision of false or misleading information, breach of enforcement notices and breaches of specified retained EU food law provisions, including the prohibition on placing unsafe food on the market. Depending on the offence, proceedings may be brought in the Magistrates’ Court or the Crown Court. The most serious breach offences carry an unlimited fine and, for individuals, up to two years’ imprisonment on indictment, although some obstruction and information-related offences carry lower summary-only penalties.
Defences
A key protection is the statutory due diligence defence. A business or individual may avoid liability by proving, on the balance of probabilities, that they took all reasonable precautions and exercised all due diligence to avoid the offence. To do this, the evidence must be more comprehensive than a written policy. A defendant should be able to provide evidence of effective food safety systems, staff training, supervision, monitoring and corrective action in practice. Mere “paper compliance” is unlikely to be enough.
Defendants may also rely on the offence having resulted from the act or default of another person, or from reliance on information supplied by another person, provided the statutory conditions are met. Where that defence is advanced, strict notice and timing requirements apply. Failure to comply may prevent the defence from being relied upon unless the court gives permission.
For obstruction and information-related offences, further qualifications may be important. A person may have a reasonable excuse for failing to provide assistance or information. The Regulations also preserve statutory protection against self-incrimination. That protection should not, however, be treated as a general immunity from cooperating with lawful enforcement requirements.
Directors’ liability
Directors and senior officers may face personal liability where a company commits an offence. A director, manager, secretary or similar officer may be prosecuted if the offence was committed with their consent or connivance, or was attributable to their neglect. Liability may arise where senior officers knew of non-compliance and allowed it to continue, ignored obvious food safety risks, or failed to implement and oversee adequate compliance systems. Effective governance, monitoring, training and documented procedures are therefore important both for the business and for those managing it.
A director who is a director in name only is not personally liable merely because of their title. The prosecution must still prove consent, connivance or neglect. Lack of day-to-day involvement may make consent or connivance difficult to establish, but it will not necessarily exclude liability if, on the facts, the evidence shows that the director failed to exercise any oversight or to ensure that proper compliance arrangements existed.
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