Allan Rich Seafoods v Lincoln Magistrates' Court [2009] EWHC 3391 (Admin)

[2009] EWHC 3391 (Admin)Case No CO/13824/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/12/2009
Before
MR JUSTICE CRANSTON
Between
Allan Rich SeafoodsClaimantLincoln Magistrates' CourtDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Marion Lonsdale (instructed by Salusburys Harding & Barnett) for ClaimantTimothy Pitt-Payne (instructed by Lincolnshire County Council) for DefendantHearing Hearing date: 8 December 2009
Judgment

INTRODUCTION

[1]On 14 October 2008 the Lincoln District Magistrates’ Court made a food condemnation order on an application by West Lindsey District Council (“the Council”) in respect of food stored at the premises of the appellant. The application related to approximately 200 tonnes of fish, fish products and ready to eat fish products in two cold stores. The basis on which the order was made was that the appellant was not approved as required by food law. The Case Stated from the Magistrates to this court asks a number of questions, but central to answering them is a consideration of the issue of approval. That turns in part on a correct analysis of a complex web of Community and domestic law instruments regarding food law.[2]At the outset it should be made clear that this case arose initially as an application for judicial review, which was lodged on 8 January 2009. In June Mr Justice Calvert-Smith granted permission to apply for judicial review and made limited directions. Subsequently a Case Stated was lodged on 18 November 2009, although there was a draft Case Stated before that. Subsequently Deputy Master Knapmann directed that the Case Stated should be heard first.[3]The questions raised by the Lincoln and Gainsborough Justices in their case stated for the opinion of this court are as follows: a) Were the Justices right to proceed with the application of 14 October 2008 rather than adjourn the proceedings for the appellant to seek legal advice? b) Was it wrong and unfair for the justices to admit evidence not served in advance of the hearing? c) Once the justices were aware the issue was lack of approval, should Allan Rich Seafoods Ltd have been given another opportunity to apply for approval before the Justices determined the application? d) Is it the premises and/or the Company which requires authorisation? e) Was the finding that the premises were not approved supported by the evidence? f) Did the Justices err in failing to distinguish between stocks of the appellant intended for human consumption and stocks of the appellant not so intended, when making the order? g) Were the Justices right, on the evidence they heard, to make an order under section 9(6)(a) and (b) of the Food Safety Act of 1990? BACKGROUND (a) The appellant and its predecessors until July 2008[4]The appellant in this case is Allan Rich Seafoods Ltd (“the appellant”), which from 2005 until the Condemnation Order on 14 October 2008 operated at Units 31-32 Binbrook Trading Estate, Brookenby, Market Rasen, Lincolnshire (“Units 31-32”). The managing director of the appellant is Mr Roland Saldanha. The appellant was engaged in packaging and repackaging fish and fish products for onward sale to retailers and restaurants. It also stored frozen fish and fish products. There were at least two predecessor companies in the same line of business at Units 31-32. The first was Allrich Seafoods Ltd. This operated from about 1995 until 2000. The second was Roland International Seafoods Ltd, which operated from 2000 until 2005. According to Mr Saldanha, who was the principal behind all these businesses, on 18 January 2000 Allrich Seafoods Ltd went into voluntary liquidation, and the business was subsequently purchased from the receiver by Roland International Seafoods Ltd. Again according to Mr Saldanha Roland International Seafoods Ltd was compulsorily wound up on 12 July 2005 and the appellant, newly incorporated, bought the business from the liquidator.[5]It seems that at some point in the 1990s the Council issued Allrich Seafoods Ltd a factory approval number GR010. The Council cannot locate any document giving approval to Allrich Seafoods Ltd or any application for approval by that company. However, on 6 March 1997 Mr Saldanha applied to the Council for registration of Unit 31 as food premises for Roland International Seafoods Ltd. As I have mentioned, according to Mr Saldanha, a company with that name did not operate at the premises until 2000, on liquidation of Allrich Seafoods Ltd. For present purposes, the point is that at the bottom of that form, handwritten, is the number GR010. There is no evidence as to how that came to be written on the form, but it was done within the Council.[6]There is a letter dated 23 March 2001 from Mrs Martland-Curtis, the Environmental Health Officer responsible over a substantial period for Units 31-32, to the Food Standards Agency. This letter reads that Roland International Seafoods Ltd have ceased trading as a food processing establishment. The approval number GR010 is mentioned in the letter. The letter does not appear to be factually correct, since Roland International Seafoods Ltd continued to operate at Units 31-32 until 2005. It seems that Mrs Martland-Curtis intended to refer to the former company, Allrich Seafoods Ltd, rather than Roland International Seafoods Ltd.[7]In a witness statement for this hearing Mrs Martland-Curtis says that there was no intention on her part to alter the approval number at that stage. If premises did not have an approval number, or if they were not registered, Mrs Martland-Curtis says that she would not inspect them. Of Mr Saldanha’s suggestion that, at some stage, the approval number may have been changed from GR010, she has no recollection of that, nor can she recall any need for there to have been a change in that number. She believes that at all times the businesses operating at Units 31-32 were using the correct factory approval number, or at least they were using the factory approval number which the Council informed her was the number which they should have been using. There is a letter from her dated 26 July 2006 to Roland International Seafoods Ltd giving information as to the need, under the new European food law provisions, for the approval number to be displayed in different form, and an email from her to the Food Standards Agency dated 10 July 2007 where she lists Roland International Seafoods Ltd as having the number GR003FE. Of course by that time Roland International Seafoods Ltd had been liquidated and the appellant company was operating at Units 31-32.[8]There are records of inspections undertaken by the Council of Units 31-32 from 1997. The first inspection was by a Mr Buckle, but subsequently the records are of inspections mainly by Mrs Martland-Curtis. The records indicate that from time to time notices were issued to the business at Units 31-32 identifying deficiencies and requiring their remedy. Thus on 15 June 2005 Mrs Martland-Curtis wrote to Roland International Seafoods referring to a number of contraventions identified in an initial inspection report, left at Units 31-32 at the time of the visit, and highlighting remedial steps of the highest priority. At the top of the letter, in manuscript, is the annotation “Allan Rich Seafoods Ltd August 5th”.[9]This situation of inspection by Mrs Martland-Curtis continued until July 2008. Correspondence was addressed to the appellant on 29 August 2006, 4 January 2007, 11 April 2007, 10 July 2007 and 14 August 2007, but on 19 March 2008 it was addressed to Allrich Seafoods Ltd and on 21 May 2008 to Roland International Seafoods. From July 2008 Mrs Martland-Curtis had no further dealings with Units 31-32 or with the company operating from those premises.

(b) Council enforcement action post July 2008

[10]On 28 July 2008 Mark Radley, from the Council, visited the premises following a complaint that rubbish was being burnt there. He saw that there was some fish in boxes which were open to the environment and as a result a full inspection was triggered. That was conducted by Yvonne Garraway, an Environmental Health Officer acting on behalf of the Council. She visited the premises on 29 and 30 July. On 31 July she sent an email to the Food Standards Agency asking for information about the number GR010 and Allan Rich Seafoods Ltd. On the file note she made she recorded that neither were listed. However, she also recorded that the list might not be complete and that Roland International Seafoods Ltd was listed with approval number GR003FE.[11]The upshot of Ms Garraway’s inspection visit was a 10 page letter sent to Mr Saldanha at Units 31-32 on 4 August 2008. The letter enclosed 13 remedial notices under the Food Hygiene (England) Regulations 2006. In the letter Ms Garraway also wrote that neither the Food Standards Agency nor the Council had any record which indicated that the company had been approved:
“[U]nless you are able to provide evidence that you are an approved establishment, you will need to make a formal application.”
[12]There was an inspection revisit to the premises on 21 August 2008 and on 5 September 2008 Joanna Riddell, a more senior officer in the Council, wrote to Mr Saldanha saying that she understood that there had not yet been full compliance with the Food Hygiene notices, and that he had been obstructive and aggressive during the visit. The letter also said this:
“During the visit you were asked to produce confirmation of your approval, to date no documentation has been received. The Food Standards agency has confirmed that they do not have any record of an approval for Allan Rich, therefore in the absence of any paperwork from yourself I conclude that you are not approved. This being the case I am considering what action can be taken and will contact you next week to discuss this.”
[13]On 15 September 2008 Mr Saldanha wrote to Ms Riddell that he was delighted to know that she was to visit the factory two days later so that he could explain the problems it was facing. In the letter he explained the background to the operations, in particular that Unit 32 had not been used for production since 2000. Most of the enforcement notices related, he said, to that unit. When Ms Riddell did inspect the premises on 17 September she served Mr Saldanha with a Hygiene Emergency Prohibition Notice under regulation 8 of the Food Hygiene (England) Regulations 2006 because “there is an active rodent infestation at the food business”. For the purposes of this judgment there is no need to explore that matter further except to note that there was a Magistrates’ Court order on the back of the notice but that the notice was subsequently lifted.[14]Then on 23 September 2008 Ms Riddell issued a Remedial Action Notice under regulation 9 of the Food Hygiene (England) Regulations 2006. That notice expressed the opinion that the hygiene regulations were being breached because fish and fish products were being exported without approval and the premises did not meet the standards of Regulation (EC) 852/2004 and Regulation (EC) 853/2004. The notice required Mr Saldanha to cease the process of repackaging fish and fish products and using an unauthorised approval mark. The action required to remedy the situation, stated in the Remedial Action Notice, was “improve the premises and apply for approval under 853/2004.”[15]Council officers visited the premises on 1 October 2008 and then met there with Mr Saldanha two days later, on 3 October. They issued a further Remedial Action Notice under regulation 9 of the Food Hygiene (England) Regulations 2006. The covering letter explained the new remedial notice, that the factory was not approved and enclosed the 23 March 2001 letter “regarding removal of your approval”. That notice said that it was being issued because food regulations were being breached because “fish and fish products are being stored, processed and repackaged in a premises that is not compliant with Regulation (EC) 852/2004 and 853/2004 in that it is not approved.” It required Mr Saldanha to cease the process of storing, processing and repackaging fish and fish products. The action required to remedy the situation was set out:
“Make an application for approval under Regulation 853/2004 and improve the premises in line with Regulation 852/2004.”
After receiving the Remedial Action Notice, Mr Saldanha said that he completed an application for approval but that Ms Riddell refused to accept it. That is refuted by Ms Riddell. In any event, on 7 October 2008 Mr Saldanha made what he described as “a desperate appeal” by letter to the Chief Executive of the Council. In the course of that letter he said this:
“Mrs Martland-Curtis agreed to transfer the number to the new company Allan Rich Seafoods Ltd as it was the same factory, the same staff, same management and same owners. The Food Standards Agency has confirmed the fact that it is perfectly legal to transfer the approval number under these circumstances.”
[16]Then on 8 October 2008 Ms Riddell issued a Food Condemnation Warning Notice under section 9(3)(4) of the Food Safety Act 1990 and the Food Hygiene (England) Regulations 2006, regulation 23. That notice recorded that it applied to 200 tonne of fish and fish products, including ready to eat products, at Units 31-32, with various marks including GR010. An application was to be made to the Magistrates’ Court on 14 October for an order to condemn the food because “it does not comply with the Hygiene Regulations Regulation (EC) 853/2004, Regulation (EC) 854/2004 as implemented by the Food Hygiene (England) Regulations 2006 in that it has not been stored, produced, processed or distributed in compliance with the Hygiene Regulations and is not approved by the competent authority.” Accompanying the Food Condemnation Warning Notice was a certificate that food had not been produced, processed or distributed in compliance with the Hygiene Regulations, issued under regulation 27 of the Food Hygiene (England) Regulations 2006.

(c) The hearing before the justices

[17]In anticipation of the hearing before the justices, Mr Saldanha prepared a witness statement. That said that the Council was solely and wholly responsible for misleading him that the company was holding a valid approval number, GR010. When Allrich Seafoods Ltd had gone into liquidation in January 2000 he had contacted Environmental Health at the Council to apply for a new approval number for the new company, Roland International Seafoods Ltd. He had been told in writing that since it was the same factory, the same workforce, the same management and the same ownership he could continue using the same approval number, GR010. He had contacted Environmental Health again when Roland International Seafoods Ltd was compulsorily wound up on 12 July 2005 and was told that since there was no change, except for the company, he could continue using the same approval number. The factory had been inspected seven times in the last seven years and approved by the Council. Tacit approval was given again for the eighth time by Ms Riddell on 23 September 2008. He had used the approval number in good faith for eight years. The Council had not honoured their undertaking twice to transfer the approval number to the new company. That was the fault of the Council for not informing him that the approval number had been cancelled. All Environmental Health had to do was to honour their undertaking and transfer the approval number GR010 to the appellant.[18]The hearing before the justices went ahead on 14 October. The Case Stated records that the Council was legally represented and that the appellant was represented by Mr Saldanha, as the managing director, but was not legally represented. The warning notice of 8 October and served before the hearing had made reference to the appellant’s right to seek legal advice and to be represented at the hearing by a lawyer. The Case Stated continues:
“We specifically asked Mr Saldanha as a representative of the appellant company if he was happy and prepared to proceed without legal representation. He confirmed that he was and made no application to adjourn. He was also asked if he wanted time to consider the papers, he declined. We concluded that it was appropriate to hear the application immediately, in the knowledge that much of the paperwork would have been known about by Mr Saldanha, it having been addressed to Allan Rich Seafoods Ltd and him personally.”
This is confirmed in a witness statement by the presiding justice at the hearing on the day, Karen Rastall, who also notes that there was no application to adjourn and that Mr Saldanha was in court throughout the hearing and “effectively dealt with the case and conducted his self-representation well”.[19]The Case Stated then records, in outline, the evidence heard by the justices. Joanna Riddell, from the Council, gave evidence that although Roland International Seafoods Ltd was approved, neither the Council nor the Food Standards Agency had any record of approval for the appellant, and that approval had not been transferred from Roland International Seafoods Ltd. During visits to the premises Ms Garraway had stressed to Mr Saldanha the need for approval and that had been raised in the letters of 4 August and 5 September 2008. This lack of approval was the highest risk identified and why it appeared as the first and final paragraphs in letters to the company. Notices served on the company had also referred to the lack of approval. Mr Saldanha had said that he had paperwork showing that the company was approved and was given the opportunity to provide it, but it never came to light. He could have applied for approval, application forms had been sent in August and left on a visit, but he failed to do so. The previous approval was not relevant to the appellant.[20]Mr Saldanha also gave evidence. A fuller account of that evidence is contained in the witness statement of the presiding justice, Karen Rastall. The Council was responsible, in his evidence, for misleading him into believing that GR010 had been transferred to the appellant. He told the justices that in January 2000 he had contacted the Council and informed them that Allrich Seafoods had gone into liquidation and had received a letter from the Council, currently with the receiver, confirming that since it was the same factory, same workforce, same management and same ownership the approval number was to be transferred to Roland International Seafoods Ltd. That letter was difficult to access, because it was with the receiver. In his evidence Mr Saldanha also said that in July of 2005 he had contacted Mrs Martland-Curtis on the telephone and was told that it was not necessary to apply for a new approval number, and that he could use the same approval number since the appellant was to carry on with the same factory, the same workers and the same management. He had operated in good faith and honestly believed that the approval number had been transferred. He had contacted the Food Standards Agency, and it had confirmed that if it was the same factory with the same conditions and they were satisfied that the same approval number could be used. He had no knowledge that he had no approval, he thought it had been transferred and therefore he carried on with the old approval number. In summary he claimed that he honestly believed that he had approval. As to the application forms sent by the Council, he had not received the first set and when he completed the second it had been refused.[21]In cross-examination Mr Saldanha repeated that he could not get hold of the paperwork since it was with the receiver. He had never been told that he needed a fresh application. Mr Saldanha then called his manager at Units 31-32 who gave evidence that work was carried on as if the business was approved and that it had only been brought to his knowledge that there was no approval in the previous six weeks. Mr Saldanha also called his quality controller who said the company had been approved as GR010. In his closing speech Mr Saldanha said that he had used the GR010 code for the last seven years, had no reason to doubt it, and had done everything honourably.[22]The justices in their Case Stated explain that they found as a matter of fact that neither the Council nor the Food Standards Agency had any record of approval for the appellant. They had heard on behalf of the appellant that it was believed that approval had been transferred from Roland International Seafoods Ltd, approval to that company having been transferred from Allrich Seafoods Ltd, “but no evidence in support of this was produced in court”. The justices then record that the business had been instructed on 4 August and 5 September in writing that they needed approval but that no application had been made prior to the last court hearing on 23 September. An application was completed but not adequately submitted and in any event not until after the fish and fish products had been seized. “We therefore did not accept the defendant’s claim that they were in possession of the necessary approval.” The justices then went on to condemn the seized food, ordering it to be destroyed or disposed of so as to prevent it from being used for human consumption. AUTHORISATION European Law[23]In 2006 the form of food law in the United Kingdom changed as a result of the adoption of a number of European Community instruments. The first is Regulation (EC) 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs: [2004] OJ L 226/3. Relevant to the current proceedings is Article 6(2), which requires the registration of food business operators:
“(2) [E]very food business operator shall notify the appropriate competent authority, in the manner that the latter require, of each establishment under his control that carries out any of the stages of production, processing and distribution of food, with a view to the registration of each such establishment.”
Article 6(2) continues that every food business operator must also ensure that the appropriate competent authority always has up to date information on establishments, including by notifying any significant change in activities and any closure of an existing establishment. Article 6(3) provides that food business operators shall ensure that establishments are approved by the competent authority, following at least one on-site visit, when approval is required under Regulation (EC) 853/2004.[24]Establishment is defined in Article 2 (1)(c) as meaning “any unit of a food business”. Article 2 (2) applies the definitions in Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures of food law: [2002] OJ L31/1. Article 3 of that regulation defines food business and food business operator:
“2. “Food business” means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of production, processing and distribution of food; 3. “Food business operator” means the natural or legal persons responsible for ensuring that the requirements of food law are met within the food business under their control.”
[25]Under well accepted principles of European law the recitals to a community instrument mould the interpretation of the substantive provisions. Recital 8 of Regulation (EC) 852/2004 provides that an integrated approach is necessary to ensure food safety from the place of primary production up to and including placing food on the market for export. Recital 9 reads that Community rules should “apply only to undertakings, the concept of which implies a certain continuity of activities and a certain degree of organisation”. The term “establishments” is referred to in a number of recitals. In particular recital 19 provides that the registration of establishments and the cooperation of food business operators are necessary to allow the competent authorities to perform official controls efficiently. This focus on the responsibility of food business operators in the recitals pervades the Regulation itself: see, for example, articles 1 (scope), 3 (general obligation), 4 (general and specific hygiene requirements) and 5 (hazard analysis and critical control points). This is carried through to article 6 where, as indicated, article 6 (2) obliges food business operators to register.[26]As foreshadowed in article 6(3)(b) of Regulation (EC) 852/2004 food business operators may need to be approved by the competent authority, following at least one site visit. That is provided for in Regulation (EC) 853/2004 of the European Parliament and the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin: [2004] OJ L226/22. Article 4 (2) reads as follows:
“2. Without prejudice to Article 6 (3) of Regulation (EC) 852/2004 establishments handling those products of animal origin for which Annex III to this Regulation lays down requirements shall not operate unless the competent authority has approved them …”
Article 4(3) provides that an establishment subject to approval in accordance with paragraph 3 shall not operate until the competent authority has granted the establishment approval to operate following an on-site visit in accordance with Regulation (EC) 854/2004 of the European Parliament and the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption: [2004] OJ L226/83. Article 4 (4) of Regulation (EC) 853/2004 provides that food business operators shall cooperate with the competent authority, in particular ensuring that an establishment ceases to operate if the competent authority withdraws its approval. There is no definition of establishment in Regulation (EC) 853/2004, but pursuant to article 2 (2) the definitions in Regulation (EC) 852/2004 apply. As indicated establishment there means any unit of a food business.[27]The special regime of Regulation (EC) 853/2004 is explained in its recital 2, that certain foodstuffs may present specific hazards to human and health, requiring the setting of specific hygiene rules. Recital 3 continues that there are existing directives including, says the recital, those in relation to manufacturers and competent authorities’ responsibilities, “structural, operational and hygiene requirements for establishments, procedure for the approval of establishments …”. It is desirable, the recitals later say, to rationalise these directives. Recital 5 reads that unless expressly indicated to the contrary, the Regulation shall not apply to retail, unless “operations are carried out with a view to the supply of food of animal origin to another establishment”. Recital 18 provides that it is appropriate for the structural and hygiene requirements laid down in the Regulation to apply to all types of establishment, including small businesses and mobile slaughterhouses.[28]Article 1 of Regulation (EC) 853/2004, dealing with scope, provides that the Regulation lays down specific rules on the hygiene of food of animal origin for food business operators, supplementing those laid down in Regulation (EC) 852/2004. The Regulation does not apply, pursuant to Article 1 (3), in relation to the direct supply of small quantities of primary products, inter alia, “to local retail establishments directly supplying the final consumer”. Nor does it generally apply, pursuant to article 1(5)(b), to retail unless “operations are carried out with a view to the supply of food of animal origin to another establishment”. Article 3, general obligations, provides that food business operators shall comply with the relevant provisions of Annexes II and III. As I have said Annex III deals with fishery products.[29]Article 4 is headed “registration and approval of establishments”. Its paragraph 1 provides that food business operators shall place products of animal origin manufactured in the Community on the market only if they have been prepared and handled exclusively in establishments which meet the relevant requirements of Regulation (EC) 852/2004, those of Annexes II and III of the Regulation, and relevant requirements of food law, and which the competent authority has registered, or where required in accordance with paragraph 2, approved. Then follows the approval provision, article 4(2), which I have quoted. It remains to mention article 4(4), under which food business operators must operate with the competent authorities, in particular to ensure that an establishment ceases to operate if the competent authority withdraws approval. Article 4 continues “5. This Article shall not prevent an establishment from placing food on the market between the date of application of this Regulation and the first subsequent inspection by the competent authority, if the establishment: (a) is subject to approval in accordance with paragraph 2 and placed products of animal origin on the market in accordance with Community legislation immediately prior to the application of this Regulation.” Article 5 deals with identification marking, as does Annex II. As mentioned Annex III contains requirements, as the title reads, “for establishments, including vessels, handling fishery products”. (a) is subject to approval in accordance with paragraph 2 and placed products of animal origin on the market in accordance with Community legislation immediately prior to the application of this Regulation.”[30]Mention has already been made of Regulation (EC) 854/2004. Article 3 of that provides for the approval of establishments. Its paragraph 1(a) requires the competent authority to make an on-site visit and only to approve an establishment if the food business operator has demonstrated that it meets the relevant requirements of Regulations (EC) 852/2004 and 853/2004 and other relevant requirements of food law. Under paragraph 3 the competent authority shall give each approved establishment an approval number. Pursuant to paragraph 4 the competent authority must keep the approval of establishments under review when carrying out official controls laid down in the remainder of the Regulation. Paragraph 4(b) empowers the competent authority to withdraw an establishment’s approval where serious deficiencies are identified or production has to be stopped repeatedly and the food business operator is not able to provide adequate guarantees regarding future production. Member States are obliged, under article 3(6) to maintain up to date lists of approved establishments with their respective approval numbers and other relevant information. There are further provisions in article 9 regarding action in a case of non-compliance. Withdrawal of approval is one possible sanction but with any action the food business operator must be provided with written notification of the decision together with the reasons and information on the right to appeal.[31]The final relevant Community instrument is Regulation (EC) 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules: [2004] OJ L191/1. Article 31 of that provides that the competent authority shall establish procedures for food business operators to follow when applying for approval and the need to make an on-site visit. The approval of establishments must be kept under review when competent authorities carry out official controls and if serious deficiencies are identified, or production at an establishment has to be stopped repeatedly and the food business operator is not able to provide adequate guarantees regarding future production, steps can be taken to withdraw the establishment’s approval. English law[32]Community Regulations have direct effect and immediate applicability in Member States. However, the Food Hygiene (England) Regulations 2006, 2006 SI No 14 provide backing for the execution and enforcement in relation to England of Regulation (EC) 852/2004, Regulation (EC) 853/2004 and Regulation (EC) 854/2004. Regulation 8 provides for hygiene emergency prohibition notices and orders, and regulation 9 sets out the detail for remedial action notices and detention notices in respect of an establishment subject to approval under article 4(2) of Regulation (EC) 853/2004. The remedial action notice served on the relevant food business operator may prohibit the use of any part of the establishment or prohibit the carrying out of any process. It must specify the breach and the action to remedy it: reg. 9(3). Once an authorised officer of an enforcement authority is satisfied that remedial action has been taken the notice must be withdrawn: reg. 9(4). Food at an establishment subject to approval can be detained for examination.[33]The Official Feed and Food Controls (England) Regulations 2007, 2007 SI No 3185 provides for a right of appeal for those subject to approval under article 4(2) of Regulation (EC) 853/2004 where action under Article 31 of Regulation (EC) 852/2004 has been taken. Where an approval has been withdrawn the food business operator may continue to use the establishment unless appeal rights are exhausted: reg. 12(5).[34]The Food Standards Agency has issued a Code of Practice under section 40 of the Food Safety Act of 1990, regulation 24 of the Food Hygiene (England) Regulations 2006 and regulation 6 of the Official Feed and Food Controls (England) Regulations 2007. Enforcement authorities must have regard to it when enforcing the law. Chapter 1.4 addresses food business establishment records and, in line with article 31 of Regulation (EC) 852/2004, obliges food authorities to maintain up to date lists of approved food business establishments in their area. Paragraph 2.4.3 requires food authorities to notify the Food Standards Agency when an establishment has been approved, when an approved establishment ceases activity and where approval has been withdrawn. Chapter 5 relates to establishments subject to approval under Regulation (EC) 853/2004. Paragraph 5.1.7 provides for details of the on-site visit to be made in accordance with article 31 of Regulation (EC) 882/2004: this should take the form of an inspection to verify, where necessary, that all systems, procedures and documentation meet relevant requirements, and the inspection should be conducted and cover all aspects of the relevant inspection form for the business concerned. Paragraph 5.1.6 refers to the requirement in article 6(2) of Regulation (EC) 852/2004, requiring food business operators to ensure that the competent authority always has up to date information on establishments, including significant changes and activities and the closure of establishments. The withdrawal of approval is also referred to: paras 5.2.1, 5.2.2, 5.2.5.[35]The Food Standards Agency has also issued a Food Law Practice guidance (England) (“the guidance”). This is to assist food authorities with the discharge of their statutory duties but it is non-statutory. It complements the statutory Code of Practice and provides general advice on enforcement. Its preface says that it should not be taken as an authoritative statement or interpretation of the law. Contained in the guidance is the following question and answer. “3. If the ownership of an approved establishment changes, does the new food business operator need to apply for approval and the business reassessed? Under Regulation 853/2004, an approval relates to an establishment and not the business occupying the establishment or the food business operator, so the new operator of an establishment would not have to seek approval in order to continue the activities for which approval was granted as long as there is compliance with the relevant regulations. The new operator is, however, obliged to provide the competent authority with up-to-date information on the establishment in accordance with Article 6(2) of Regulation 852/2004 and is therefore obliged to inform the relevant Food Authority of the change in circumstances.” Pre 2006 law[36]The European Community instruments mentioned above came into force in 2006. Prior to that the relevant Community instrument was Council Directive 91/493/EEC of 22 July 1991 laying down the health conditions for the production and the placing on the market of fishery products: [1991] OJ L268/15. Article 7 provided for approval of establishments, for their regular inspection and monitoring and for action to be taken in the event of non-compliance. Under article 7(3) competent authorities had to draw up a list of their approved establishments each of which was to have an official number. “Establishment” in the directive was defined in article 2 as “any premises where fishery products are prepared, processed, chilled, frozen, packaged or stored.”[37]Pursuant to the directive the Food Safety (Fishery Products and Live Seashell) (Hygiene) Regulations 1998, 1998 SI No 994 provided for approval of fishery products establishments by local food authorities. “23 – (1) No person shall operate a fishery products establishment unless it has been approved by the food authority for the area in which it is situated.”[38]Under regulation 24 an application had to be made in writing and accompanied by such supplementary information, documents, plans and diagrams as were necessary to enable the food authority to determine the application. An approval could only be granted if the food authority was satisfied that the requirements set out elsewhere in the regulations applied. An approval could also be subject to limitations. A unique approval number was issued. The regulations provided for a record of approvals; appeals against the refusal of approval or against the imposition of a condition; for applications to vary a term or limitation applicable to an establishment; and for the revocation of approval and consequential appeals: regs. 26, 27, 31 and 32. Under the regulations “establishment” was defined as any premises where fishery products were prepared, processed, chilled, frozen, packaged or stored other than cold stores where only the handling of wrapped products took place: reg. 2(1).[39]Paragraph 5.1.9 of the Food Safety Act 1990 Code of Practice in force in 2005 provided that where a food authority became aware of any significant changes in the ownership, management or activities of approved premises they should take appropriate action as detailed in paragraph 4.2.4. The latter provided for food hygiene inspections. Discussion[40]It seems to me that in this maze of current regulation the following at least is clear: 1. The European Community instruments Regulation (EC) 852/2004, Regulation (EC) 853/2004 and Regulation (EC) 882/2004 must be read as a whole, and in the light of their overall principal objective, as expressed in the recitals, to secure a high level of consumer protection with regard to food safety. 2. These Community instruments place the obligations on food business operators, which means the natural or legal persons responsible for ensuring that the requirements of food law are met within the undertaking carrying out the activities related to any stage of the production, processing and distribution of food. 3. Food business operators, with establishments handling particular products of animal origin, including fishery products, must obtain express approval to operate. Establishments are units of a food business. Approval involves an on-site visit. 4. Approval can be withdrawn for non-compliance with food law but the food business operator needs to be given written notification, with reasons, and information on appeal rights. 5. There is no express provision for the transfer of an approval of an establishment from one food business operator to another.[41]As far as the law in force in 2005 was concerned, persons could not operate a fishery products establishment unless it had been approved. Both in the 1991 European Community directive and the UK regulations establishment was defined as premises. An application for approval had to be in writing and accompanied by the requisite information. There was nothing about the transfer of approval. Under the Code of Practice significant changes in ownership would trigger an inspection.[42]In this case there is some evidence that approval number GR010 was at some point issued to Allrich Seafoods Ltd. There is the 1997 registration document for Unit 31on which there is the handwritten note of this number, and also the use of the number in the letter from Mrs Martland-Curtis in 2001, albeit that she appears mistaken as to the dissolution of Roland International Seafoods Ltd. There is also some evidence that at one point approval number GR003FE may have been issued to Roland International Seafoods Ltd. In that regard there is the email of 10 July 2007 from Mrs Martland-Curtis to the Food Standards Agency. There is no evidence from the records of the Council or the Food Standards Agency that approval was given to the appellant or that the appellant was ever granted permission to use approval numbers GR010 or GR003FE. Neither is there evidence from the records of the Council of any application for approval submitted by the appellant, or of any application by the appellant to be permitted to use approval number GR010 or GR003FE. Finally, it has never been suggested that any approval given was ever withdrawn from the appellant in accordance with the procedures laid down in Community or domestic law.[43]For the appellant Miss Lonsdale contends that the appellant was entitled to have his evidence accepted, that he could rely on any approval previously granted for other companies which operated out of Units 31-32. First, she submits, it is the establishment which is approved and establishment means the premises both under the current law as under the previous law. If there is a change of ownership of a business, but the business is still operated in the same way and from the same premises, there is no need to apply for new approval, although the food business operator is obliged to inform the food authority of the change of ownership. Once the premises are approved they remain approved until the approval is revoked. In particular, Miss Lonsdale invokes the passages from the guidance suggesting that the new operator of an establishment need not seek approval in order to continue the activities for which approval has been granted in the past.[44]Secondly, Miss Lonsdale contends that the evidence demonstrates that the Council were informed about, and noted, the change of food business operator in relation to the establishment at Units 31-32 when Roland International Seafoods Ltd ceased business and the appellant took over in 2005. There was in effect a transfer of approval. In Mr Saldanha’s evidence he notified Mrs Martland-Curtis of the change in food business operator to the appellant in 2005 and this was accepted by her on behalf of the Council. That was then followed by subsequent inspection visits. In Miss Lonsdale’s submission, Mr Saldanha’s evidence before the justices was supported by evidence which has subsequently come to light, in particular the letter of 28 July 2005 with its manuscript annotation “Allan Rich Seafoods Ltd August 5th”. The inference was that, either in response to that letter, or alternatively at the further visit, Mr Saldanha notified Mrs Martland-Curtis of the change to the appellant as operator and this was accepted by Mrs Martland-Curtis on behalf of the Council. There was also a second witness statement of Mrs Martland-Curtis, in December 2009, where she explains that in summer 2005 she was told by Mr Saldanha that Roland International had ceased trading and the new operator was to be the appellant, named after his two sons. She also explains that the subsequent inspection visit was conducted by another officer.[45]In my view, whatever the position under the pre-2006 law, “establishment” no longer means premises. It may be that the use of the term “establishment” in some parts of the Community instruments, and the Code of Practice, connotes a physical location, premises or, in the case of fishery products, possibly a fishing vessel. However, the definition of establishment is clear – a unit of a food business. Read in the context of legal instruments designed to further food safety, and which place obligations on food business operators, establishment must mean something more than premises. An assessment merely of the suitability of the premises would not fulfil the food safety purpose of the EC Regulations. In my view establishment denotes both premises and the manner in which those premises are being used by the food business operator. Thus approval is required for a food business or unit of a food business and not merely for the premises from which the business is conducted. If the Community instruments had intended that the suitability of premises should be assessed, in my view they would have said so. There was a clear and intended change in the 2004 Community instruments from the 1991 directive.[46]Thus the guidance is incorrect in suggesting that there is no need for approval if the new operator of an establishment continues the activities for which approval was granted in the past. The guidance does not take account of the definition of establishment in the Community instruments. It remains stuck in pre-2006 law. It may be that the guidance has some application in the case where control changes with an existing food business operator, for example the transfer of ownership of a company with the company remaining as the food business operator. I express no concluded view on that. Here, however, there was a new food business operator, the appellant, which like a phoenix arose from the ashes of Roland International Seafoods Ltd, albeit that its guiding mind was the same, Mr Saldanha. In my judgment, under Regulation (EC) 853/2004, the appellant would need approval.[47]An issue which has arisen in the course of the case is whether approval could be transferred from one food business operator to another. As I have said, Mr Saldanha said before the justices that at some time after 12 July 2005 Mrs Martland-Curtis for the Council told him that there was no need for the appellant to apply for an approval number since the approval number could be still used by Units 31-32. As I have also said there is no provision in the Community instruments, which came into effect in 2006, for the transfer of approval from one business operator to another. That an approval cannot be transferred accords with the legislation purpose and the clear intention to place obligations on food business operators.[48]Whatever might be the legal position as regards the transfer of approval, in my view the justices were entitled to come to the conclusion on the material before them that the approval of Roland International Seafoods Ltd had not been transferred to the appellant. The evidence for the Council was that there was no record of such a transfer. Mr Saldanha’s evidence for the appellant was that he was led to believe that the approval for use of the number had been transferred. (I note in passing that Mr Saldanha’s evidence was about transfer of the number, rather than anything broader). Mr Saldanha’s evidence was that a transfer had actually taken place. No evidence was produced to the justices that approval had been transferred. Mr Saldanha told the justices that the letter approving the earlier transfer, in 2000, was with the receiver, but the evidence was that he had said that to the Council sometime before and still the latter had not appeared. On the evidence before the justices it is no surprise that they rejected Mr Saldanha’s submissions about the transfer of approval. Evidence obtained subsequently, and not before the justices, cannot assist the appellant in establishing that they erred in law or acted in excess of jurisdiction.[49]As a footnote it seems clear, as Miss Lonsdale submitted, that the Council’s own records were deficient. At the least there was confusion as to the two approval numbers. It may also be that Mr Saldanha can legitimately complain that he was misled by what he was told by Mrs Martland-Curtis in 2005. But in my view the Council was entitled to certify on 8 October 2008 that the appellant was not approved and take the view that the new food business operator in 2005, the appellant, needed to apply for approval. Otherwise there would be no proper opportunity for assessment whether it was being operated in accordance with the requirements of food law. The justices had before them a valid certificate and, as explained below, had to act on it. HEARING BEFORE THE MAGISTRATES[50]The appellant submits that the hearing before the magistrates on 14 October was unfair. The Council’s case was advanced without reference to any legislation, code of practice or guidance, without any analysis of the meaning of “establishment” and reference to the guidance that there was no need for an establishment to be re-approved following changes of ownership, and without any documentary evidence from the Council’s file, or explanation as to the obligations upon the Council to keep records of approvals and to notify the Food Standards Agency. Some evidence was served late. There was also no evidence from the Environmental Health Officer, Mrs Martland-Curtis, who over a substantial period until July 2006 had inspected Units 31-32.[51]In my view there was no procedural unfairness in the hearing before the justices. The justices asked Mr Saldanha, as the representative of the appellant company, if he was content to proceed without legal representation. He confirmed that he was, and made no application to adjourn. When asked if he wanted time to consider the papers, he declined. He had adequate notice of the application to condemn since it had been sent to both his home address in London and his business premises. If he considered that he was not able to deal with any of the evidence before the court then he should have asked for an adjournment. He had a full opportunity to put his case. He gave evidence and he called evidence from both his manager and another employee. He made submissions. He was in court throughout the hearing and according to the justices effectively dealt with the issues and conducted his self-representation well.[52]The justices raise in question (c) a broader issue of unfairness in the way the appellant was treated. There was no unfairness. Their conclusion was that the appellant’s failed to obtain approval. Albeit that from 2005 Mrs Martland-Curtis worked on the basis that the appellant had approval, from the time when Ms Garraway came on the scene she raised the subject of approval with the appellant. The appellant was given the opportunity to address the position over a period of two months. There was the letter she wrote on 4 August, there was the letter of 5 September from Joanna Riddell, there was the Remedial Notice of 23 September and the letter of 3 October. All these highlighted that the appellant needed to apply for approval. There may have been a change of position as to approval on the Council’s part but, for the reasons I have already given, the Council was entitled to take the view that the appellant was not approved. The fact that eventually the appellant completed an approval form does not assist because that did not lead to approval. Importantly the appellant was given adequate opportunity before action was taken in respect of the want of approval, either to obtain it or to raise legal arguments that it was not needed. THE CONDEMNATION ORDER “The condemnation order[53]Section 9 of the Food Safety Act 1990 contains the justices’ power to nake a food condemnation order. It states:
“(6) If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances that any food falling to be dealt with by him under this section fails to comply with food safety requirements, he shall condemn the food and order – (a) the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; … (b) any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food.”
Food safety requirements” as defined by section 8(2) of the Act:- “(2) For the purposes of this Part food fails to comply with food safety requirements if it is unsafe within the meaning of Article 14 of Regulation (EC) No 178/2002 and references to food safety requirements or to food complying with such requirements shall be construed accordingly.” Article 14 of Regulation (EC) No 178/2002 defines food safety requirements in terms of food being unsafe, either because it is considered to be injurious to health or unfit for human consumption. Section 9(3) empowers an authorised officer of the Food Authority to give notice to a person that food is not to be used for human consumption and its removal is restricted. Section 9(4) contains the power of detention: where the authorised officer exercises his powers he “shall”, if not satisfied that the food complies with food safety requirements, seize the food and remove it in order to have it dealt with by the justices. The person in charge of the food must be informed and has a right to be heard before the justices: section 9(5).[54]Food will also fall within section 9 if there is a certificate under the Food Hygiene (England) Regulations 2006, 2006 SI No 14. Under regulation 27(1) an authorised officer of an authority enforcing food law may, on inspection of the food, certify that it has not been produced, processed or distributed in compliance with the hygiene regulations. When food is so certified it “shall be treated for the purposes of section 9 of the [Food Safety] Act as failing to comply with food safety requirements”: reg. 27(2). Where the food certified is part of a batch, lot or consignment of food of the same class or description all the food must, until it is proved to have been produced, processed or distributed in compliance with Hygiene Regulations, be treated as having been so certified. There is a model form in the Food Law Code of Practice for use under regulation 27. Regulation 2 defines the Hygiene Regulations as the Regulations themselves and the Community Regulations, including Regulation (EC) 852/2004, 853/2004 and 854/2004. Thus Regulation 27(2) provides for certification of food under section 9 of the Food Safety Act 1990 for failure to comply with the approval requirements in Regulation (EC) 853/2004.[55]R (on the application of the Food Standards Agency) v Brent Justices [2004] EWHC 459 (Admin); (2004) 168 JP 241 involved a condemnation notice under the provisions of section 9, served on a business stating that boxes of beef were not to be used for human consumption owing to the failure to comply with regulations relating to wrapping and packaging. The matter came before a justice of the peace who construed section 9 as conferring on her a discretion whether or not to condemn the food. She refused to condemn the meat. Stanley Burnton J granted declaratory relief in that under section 9(6), if it appears to a justice of the peace that any food fails to comply with food safety requirements, he is required to condemn the food and to make the orders as required by sections 9(6)(a) and 9(6)(b). “[13] … The use of the word “shall” indicates a step which is mandatory. The wording is not that he “may condemn the food”. It is that he “shall condemn the food”. It would be curious if the magistrate had a discretion whether or not to condemn the food which did not comply with food safety requirements, having regard to the fact that he is exercising a review or appellate function in relation to a decision made by an authorised officer under sub-section (4) since the authorised officer has no such discretion, it would be curious indeed if the Justice of the Peace did have a discretion under sub-section (6). That there is no such discretion is consistent with the wording of sub-section (6).”[56]In this case the Council issued a certificate under regulation 27 of the Hygiene Regulations on 8 October 2008, that the food in Units 31-32 had not been stored, produced, processed or distributed in compliance with them in that the business was not approved under Regulations (EC) 853/2004 and 854/2004. Since that meant the food failed to comply with food safety requirements the justices were obliged to make the condemnation order, having regard to the certificate. They heard evidence from the Council and Mr Saldanha and satisfied themselves that it was proper to make the order. There is no basis on which I can find that they erred in making the condemnation order. CONCLUSION[57]I propose to answer the questions in the Case Stated as follows: a) Yes; b) No c) No; d) Neither – see the judgment above; e) Yes; f) Not relevant to answer; and g) Yes. I dismiss the appeal.

Cited in 2 later judgments