By Suzanne Gallagher of BCL Solicitors LLP (www.bcl.com)
WHAT IS A HYGIENE EMERGENCY PROHIBITION NOTICE?
The Food Safety and Hygiene (England) Regulations 2013 (‘the 2013 Regulations’) set out various enforcement powers available to Food Standards Agency or local authority enforcement officers (‘Officer’).
Regulation 8 gives an Officer the authority to serve a Hygiene Emergency Prohibition Notice (‘Notice’) on a Food Business Operator to address hygiene concerns that pose an imminent risk of injury to public health.The Notice is a serious and draconian step which prohibits certain operations of a food business; it can be tailored to a particular process or, as is often the case, may mean the immediate closure of the premises.
WHEN ARE HYGIENE EMERGENCY PROHIBITION NOTICES ISSUED AND CAN THEY BE AVOIDED?
Notices are issued where the health risk condition is fulfilled.This arises where an imminent risk of injury to health is present on inspection. An Officer will have identified this risk in, for example, a process or treatment or in the state or condition of the premises or equipment used.This imminent risk of injury must exist at the time the Notice is served.There need not have been an injury or a complaint prior to the service of a Notice. Examples of inspection findings that may constitute an imminent risk of injury include serious pest infestations, poor structural standards or evidence of poor cleaning practices.
Under the Food Standards Agency’s ‘Food Law Code of Practice’ (‘the Code’), local authorities must ensure that enforcement action taken by Officers is, for example, reasonable, proportionate and risk based.The full range of enforcement options available to Officers should be considered, operating a graduated and educative approach to enforcement, and only moving to formal action where an informal approach will not achieve the desired effect.The nature of the non-compliance and previous compliance history will be relevant factors.
It may be possible to avoid the service of a Notice, for example if a Food Business Operator agrees to a voluntary prohibition and signs an appropriate undertaking not to reopen without approval.The Code states that a Food Business Operator should be advised to take legal advice in this regard; an important safeguard when moving outside of the statutory process with its various procedures and safeguards in place.
WHAT INFORMATION IS INCLUDED IN A HYGIENE EMERGENCY PROHIBITION NOTICE?
The Notice should detail the basis upon which the Officer is satisfied that the health risk condition is fulfilled i.e. what exactly poses the imminent risk of injury to health.The Notice should also detail what is prohibited i.e. a specific process or all food-related business activity at the premises.The Officer’s details should be included, including contact details.
WHAT HAPPENS IF I DO NOT COMPLY WITH A HYGIENE EMERGENCY PROHIBITION NOTICE?
Failure to comply with a Notice can have hugely damaging repercussions for the recipient.Any person who knowingly contravenes the Notice is guilty of an offence and is liable to be fined and/or imprisoned for up to two years. It is likely that an Officer will prosecute if, on re- inspection, they find evidence suggesting the recipient is conducting business in breach of the Notice.
I HAVE BEEN SERVED WITH A HYGIENE EMERGENCY PROHIBITION NOTICE.WHAT HAPPENS NEXT?
The Officer will display the Notice at the premises in a position where it is clearly visible.
The Officer will then apply to the Magistrates’ Court asking it to con- firm the prohibition by way of a hygiene emergency prohibition order (‘Order’).This application must be made within the period of three days beginning with the service of the Notice. If no application for an Order is made within this period, the Notice will lapse. Compensation may be granted to the Food Business Operator for any loss incurred as a result of compliance with the Notice where no application is made to the Magistrates’ Court within the three days.
The Officer should serve notice of their intention to apply for an Order on the Food Business Operator at least one day before the date of the application to the Magistrates’ Court.
The application will include a written statement or report from the Officer setting out what constituted the imminent risk. Photographic or other suitable evidence, including contemporaneous notes, are likely to be exhibited in the statement or report.The Magistrates’ Court will expect the Officer to have gathered sufficient evidence at the time the Notice was served supporting their position.
A hearing will take place to decide whether to issue an Order.There is no legal requirement for the application to be heard within a specific timeframe, but the Magistrates’ Court should be asked by the Officer to list the hearing at the earliest opportunity. It is expected that the Officer will monitor the premises whilst awaiting the hearing and record any breaches of the Notice or changes in circumstances.The premises are likely to be re-inspected shortly before the hearing (usually the day before or on the day of the hearing itself).
The burden of proof for the local authority to meet regarding whether there is an imminent risk is on the balance of probabilities (more likely than not), rather than the higher criminal standard of proof (beyond reasonable doubt).The Food Business Operator is entitled to make representations at this hearing.
The Order will be issued where the magistrates are satisfied that the health risk condition is fulfilled, and the required advance notice was given to the Food Business Operator.The Order effectively supersedes the Notice and should be affixed at the premises in a conspicuous location. Any person who knowingly contravenes the Order is guilty of an offence.
If the Officer is unsuccessful in securing the Order, the food business operator can seek compensation for any loss suffered as a result of its compliance with the Notice.
CAN A HYGIENE EMERGENCY PROHIBITION NOTICE OR ORDER BE APPEALED OR WITH-DRAWN?
A Food Business Operator is entitled to request that a Notice or Order be lifted. On receipt of the request, the Officer needs to consider the position as soon as reasonably practicable and within a maximum of 14 days.Where an Officer agrees that the imminent risk of injury to health has been removed, a Certificate of Satisfaction (‘Certificate’) must be issued by the Officer within three days.This can be done in advance of the Magistrates’ Court hearing for the Order. If the Officer agrees to issue a Certificate, they are confirming that they are satisfied the Food Business Operator has taken sufficient measures to ensure that the health risk condition is no longer fulfilled; there is no longer an imminent risk of injury to health.
A person aggrieved by an Officer’s refusal to issue a Certificate may appeal to the Magistrates’ Court.The time frame for lodging an appeal is one month from the date on which notice of the decision was served on the person desiring to appeal.
Where the Food Business Operator disputes the service of a Notice, the matter can be contested at the Magistrates’ Court. In order to contest a Notice successfully, appropriate evidence will need to be collated and technical challenges considered.
There is a right to appeal to the Crown Court against any decision of the Magistrates’ Court to make an Order or dismiss an appeal relating to a refusal to issue a Certificate.
Pragmatic negotiations with the relevant local authority regarding, for example, the extent of any prohibition can also be possible in certain instances.
WHAT SHOULD I DO IF SERVED WITH A HYGIENE EMERGENCY PROHIBITION NOTICE?
The service of a Notice can be hugely damaging for a food business. Loss of trade, loss of resources dealing with the response, reputational harm and costs associated with remedial action are likely consequences. The service of a Notice also generally marks the start of a criminal investigation and, due to the high threshold for such a prohibition, is unlikely to be the only formal action taken i.e. a prosecution may follow.
The key question to consider is whether the Food Business Operator agrees or disagrees that the health risk condition exists as defined in the Regulations.This will determine how to remove the prohibition as quickly as possible and resume trading normally: whether to work with the Officer to remove the health risk condition, or whether to challenge the actions of the Officer at Court. It is important to bear in mind that a failure to challenge a Notice could potentially be harmful to a business in defending or mitigating any subsequent prosecution.
Businesses should have appropriate procedures in place for the urgent internal escalation of any inspection that may result in a Notice or more informal request for a voluntary prohibition.They should consult with specialised legal representatives as soon as possible in order to understand these serious enforcement processes and minimise the impact on the business.
Suzanne Gallagher is a solicitor at BCL Solicitors specialising in corporate crime. Since qualifying in 2016, she has gained experience in a variety of regulatory and criminal investigations including health and safety, environmental protection, fire safety, fraud and money laundering. Prior to joining private practice, Suzanne worked in facilitating regulatory harmonisation in the European Union and in promoting international legal standards at the United Nations. She also worked in the pharmaceuticals industry in Tokyo.