Torfaen County Borough Council v Douglas Willis Ltd [2012] EWHC 296 (Admin)

[2012] EWHC 296 (Admin)Case No CO/10802/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/02/2012
Before
LORD JUSTICE AIKENSMR JUSTICE MADDISON
Between
TORFAEN COUNTY BOROUGH COUNCILAppellantDOUGLAS WILLIS LIMITEDRespondent
Jonathan Kirk QC who did not appear below (instructed by Torfaen Trading Standards) for AppellantGraham Walters (instructed by RDP) for RespondentHearing Hearing dates: 18 th January 2012
Judgment
[1]This is the judgment of the Court to which both of us have contributed.[2]This is an appeal by way of Case Stated by the Gwent Justices. It concerns the Food Labelling Regulations 1996, SI No 1499 of 1996, (“the 1996 Regulations”). The appeal raises a point of construction of Regulation 44(1), which deals with offences and penalties for contravention of the food labelling requirements set out in the Regulations. The particular question for the Court relates to the correct construction of Regulation 44(1)(d), which states that any person who “sells food after the date shown in a “use by” date relating to it” is guilty of an offence. At the hearing of the appeal we were told by Mr Jonathan Kirk QC, appearing for appellant prosecution, Torfaen County Borough Council, (“Torfaen”) that the issue is of importance both to regulatory authorities and the food processing and food retail industry.

The Case Stated and the Question posed for the opinion of the High Court

[3]The Respondent, Douglas Willis Limited (“Willis”), is involved in the food processing business. Willis buys in meat and meat products then sells on products after processing, packaging and labelling. Torfaen laid an information against Willis which contained 74 charges under Regulation 44(1). The Justices heard the case on 1 September 2011. Torfaen withdrew 43 of the charges, leaving 31 to be dealt with. After the prosecution’s case, Mr Walters, who appeared before the Justices on behalf of Willis and before us, made a successful submission of no case to answer. The remaining 31 charges were therefore dismissed.[4]The Justices were asked to state a case and did so on 2 November 2011. The Case relates to 23 charges preferred under Regulation 44(1)(d). At the hearing before us we were given a sheet setting out three sample offences. We need only set out one, as they all follow a similar pattern: “On 29 June at Cwmbran, you Douglas Willis Ltd, Unit 5, Grange Road, Industrial Estate, Cwmbran, Torfaen, did sell food, namely ‘Pork Pigs Tongues’ (exhibit number CES/P2/17) labelled ‘Use by 27/7/09’, after the date shown in the ‘use by’ date relating to it. Contrary to Regulation 44(1)(d) of the Food Labelling Regulations 1996 made under the Food Safety Act 1990”.[5]The Case Stated is laconic in its findings of fact. Paragraph 2 recites the only facts found. It states: “(a) The evidence of Ms Smith of Trading Standards was that she had attended the property of [Willis] and looked at the meat products stored in the freezers. (b) The meat products subject to the charges had ‘use by dates’ that had expired. (c) No evidence was available as to when the products had been frozen. (d) There were regular inspections from the Hygiene services the last being 28.5.10 although Trading Standard were not aware of this. (e) Frozen goods do not require a ‘use by date’ although normal practice would be to have a ‘best before date’. (f) A use by date is required if food is highly perishable. (g) The advice of Trading Standards was if goods are frozen they should have been marked with a ‘best before date’.[6]The Case Stated then records the submissions of the parties. Paragraph 3 states that it was Torfaen’s case that any perishable item that is classed by the seller as such and is given a ‘use by’ date remains in the same category even if it is subsequently frozen. It also noted that there were no records of when the food in this case was “frozen down”.[7]Paragraph 4 summarises the submissions on behalf of Willis. Those submissions emphasised that all the produce was in a frozen state (which we take to mean in a frozen state on the date of inspection) and that frozen goods did not require a ‘use by’ date.

(c) records the following submission made on behalf of Willis:

“(c) [Torfaen] has to prove that a ‘use by date’ is required on frozen food in light of the guidance in relation to ‘appropriate durability indications’ together with the guidance provided by Article 10 of the EU Directive 2000/13. This provides ‘In the case of foodstuffs which, from the microbiological point of view, are highly perishable and are therefore likely after a short period to constitute an immediate danger to human health, the date of minimum durability shall be replaced by a ‘use by date’. The onus is on the prosecution to prove in relation to a food forming the subject matter of the prosecution: i) that the food is highly perishable; ii) and in consequence likely after a short period; iii) to constitute an immediate danger to human health. The prosecution must prove that at the date of the alleged offences all the three ‘key requirements’ were present in the food.” i) that the food is highly perishable; ii) and in consequence likely after a short period; iii) to constitute an immediate danger to human health. The prosecution must prove that at the date of the alleged offences all the three ‘key requirements’ were present in the food.”
[8]Paragraph 6 of the Case Stated records the Justices’ conclusion. It is clear that they accepted the submissions on behalf of Willis: “We were of opinion that all the food items which were subject to charges were at the time of the inspection 29.6.2011 in a frozen state and therefore not highly perishable and would not require a ‘use by date’. The appellants had failed to prove the three requirements necessary for a conviction”.[9]The Questions for the High Court posed by the Justices are: “(a) Does the offence under Regulation 44(1)(d) of the Food Labelling Regulations 1996 require proof that the food was, at the time of the offence:(i) highly perishable;(ii) and in consequence likely after a short period;(iii) to constitute an immediate danger to human health? (b) If food has been given a ‘use by date’ and then frozen so that it is no longer highly perishable, does that ‘use by date’ cease to have effect?” (i) highly perishable; (ii) and in consequence likely after a short period; (iii) to constitute an immediate danger to human health?

The 1996 Regulations

[10]The 1996 Regulations were made pursuant to powers conferred on ministers by the Food Safety Act 1990. As with so many current regulations concerning consumer protection, the origin of these Regulations is to be found in European Directives. The first relevant one was the European Directive 79/112/EEC on the labelling, presentation and advertising of foodstuffs across the European Economic Area. Article 9 directed member states to introduce legislation on “minimum durability” labelling. That directive was implemented in the UK by the Food Labelling Regulations 1984. The 1979 Directive was amended by subsequent Council Directives. Then came Directive 2000/13/EC (“the 2000 Directive”), “on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs”. This repealed the 1979 Directive. The 2000 Directive came into force on 26 May 2000. The aim of the Directive was, first, to lead Member States towards an “approximation” of their laws on the labelling of foodstuffs so as to contribute to the “smooth functioning of the internal market”: see recitals (1)-(3); and, secondly, to enact Community rules of a general nature which would apply “horizontally” to all foodstuffs put into the Community market: see recitals (4) and (10). There have been subsequent European provisions but these have not affected the UK 1996 Regulations.[11]Article 3 of the 2000 Directive sets out what compulsory particulars there must be on the labelling of foodstuffs. Article 3(5) identifies (as one compulsory element):
“The date of minimum durability or, in the case of foodstuffs which, from the microbiological point of view, are highly perishable, the ‘use by’ date”
. The requirement for a ‘use by’ date is elaborated further in Article 10(1), which provides:
“In the case of foodstuffs which, from the biological point of view, are highly perishable and are therefore likely after a short period to constitute an immediate danger to human health, the date of minimum durability shall be replaced by the ‘use by’ date”
. Article 10(2) says that “…these particulars shall be followed by the description of the storage conditions which must be observed”.[12]Article 16(1) stipulates:
“Member States shall ensure that the sale is prohibited within their own territories of foodstuffs for which the particulars provided for in Article 3 and Article 4(2) do not appear in a language easily understood by the consumer….”
. However, Article 18 further provides: “(1) Member States may not forbid trade in foodstuffs which comply with this Directive by the application of non-harmonised national provisions governing the labelling and presentation of certain foodstuffs or of foodstuffs in general. (2) Paragraph 1 shall not apply to non-harmonised national provisions justified on grounds of: - protection of public health….”. - protection of public health….”.[13]Effectively, the 1996 Regulations constitute the United Kingdom’s implementation of the 2000 Directive. As is so often the case, however, the format of the UK legislation does not follow the pattern of the European Directive. We have set out all the relevant Regulations in an Appendix to this judgment. We have also there set out the provisions of sections 2, 3, 20 and 21 of the Food Safety Act 1990 which Regulation 48 of the 1996 Regulations states will apply for the purposes of those Regulations. So here we need only describe the scheme of the 1996 Regulations.[14]Regulation 2, headed “Interpretation” sets out various definitions. The important definitions for the purposes of this case are that of “appropriate durability indication”, which sets out the same requirement for highly perishable foods as that in Articles 3(5) and 10(1) of the 2000 Directive; that of “sell”, which is given an extended meaning; and that of “ultimate consumer”. Part II of the 1996 Regulations deals with “Food to be delivered as such to the ultimate consumer or to caterers”. Under that heading Part II deals with “the scope and general labelling requirement”. Article 4(1) states that Part II of the Regulations applies to “food which is ready for delivery to the ultimate consumer or to a catering establishment”. Therefore, the labelling requirements set out in Part II can only apply to that type of food. Article 5 states that (subject to any exceptions set out in Part II), “all food to which this Part of these Regulations applies shall be marked or labelled with….(c) the appropriate durability indication; (d) any special storage conditions or conditions of use”. The succeeding Regulations set out details of the content of the labelling, including that required for such matters as the name of the food and the list of its ingredients. Then, still within Part II, there is a further heading:
“Appropriate durability indication”
. Regulation 20 sets out the required form of indication of minimum durability. Regulation 21 sets out the form of indication of ‘use by’ date. Regulation 21(1) states that “Where a ‘use by’ date is required in respect of a food it shall be indicated by the words ‘use by’ followed by -“ and then the particular requirements are set out in the succeeding paragraphs.[15]Thus the circumstances in which food has to be labelled with a ‘use by’ date are to be found partly in the definition of “appropriate durability indication” in Regulation 2 of Part I; and partly in the provisions of Regulations 4(1) and 5(c) of Part II. Regulation 21(1) does not set out when food is required to display a ‘use by’ date. That regulation only sets out what wording must be in the ‘use by’ label if one has to be attached to food.[16]Part III of the 1996 Regulations deals with “Claims, nutrition labelling and misleading descriptions”. It is not relevant to the present issues.[17]Part IV is headed “Offences and Legal Proceedings”. The offences are set out in Regulation 44(1), which we will set out again here as it is so central to this appeal: “(1) If any person-(a) sells any food which is not marked or labelled in accordance with the provisions of Part II of these Regulations, or(b) sells or advertises for sale any food in respect of which a claim is made, nutrition labelling is given or a description or a name is used in contravention of the provisions of Part III of these Regulations, or(c) sells any food from a vending machine in contravention of Regulation 29, or(d) sells any food after the date shown in a ‘use by’ date relating to it, or(e) being a person other than whichever of- (i) the manufacturer, (ii) the packer, or (iii) the seller established within the European Community was originally responsible for so marking the food, removes or alters the appropriate durability indication relating to that food, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale”. (a) sells any food which is not marked or labelled in accordance with the provisions of Part II of these Regulations, or (b) sells or advertises for sale any food in respect of which a claim is made, nutrition labelling is given or a description or a name is used in contravention of the provisions of Part III of these Regulations, or (c) sells any food from a vending machine in contravention of Regulation 29, or (d) sells any food after the date shown in a ‘use by’ date relating to it, or (e) being a person other than whichever of- (i) the manufacturer, (ii) the packer, or (iii) the seller established within the European Community was originally responsible for so marking the food, removes or alters the appropriate durability indication relating to that food,[18]Regulation 46 sets out a defence that can be used in proceedings for an offence under Regulation 44(1)(e) and Regulation 47 sets out a defence in relation to exports. Regulation 48 applies various sections of the Food Safety Act 1990 to the Regulations. Sections 2, 3, 20 and 21 have been set out in the Appendix to this judgment.

The Arguments of the Parties on the appeal

[19]On behalf of Torfaen, Mr Kirk QC submitted that the construction of Regulation 44(1)(d) is clear and simple. In his submission all the prosecution had to show (beyond reasonable doubt) to obtain a conviction under this paragraph was that, at the date of the offence, a person was selling (in any of the senses given by the extended definition of “sell” set out in Regulation 2) the particular food (intended for sale for human consumption) after the date shown on the ‘use by’ label attached to the food. Mr Kirk submitted that it was irrelevant whether, at the date of the offence, the particular food required to be marked by a ‘use by’ date in accordance with Regulation 2 (defining “appropriate durability indication”), Regulation 5 (setting out the labelling requirement for food to which Part II of the Regulations applied) and Regulation 21 (form of the ‘use by’ label when needed). Thus in the present case, he submitted that even if, at the date of the inspection, this was frozen food which was not then highly perishable and so did not require to be labelled with a ‘use by’ date, that fact was irrelevant. It was sufficient if the food was in fact labelled with a ‘use by’ date and that, at the date of the offence, the defendant was selling the food after the ‘use by’ date on the label attached to the food. Mr Kirk submitted that if this construction was not adopted it would enable the “appropriate durability indication” requirement of the Regulations to be circumvented entirely and with ease. A person could obtain highly perishable food marked with a ‘use by’ date, then freeze it, then “sell” it and then say that it did not need any ‘use by’ date and label and so evade the Regulations.[20]Mr Walters, for Willis, submitted that the position was not so straightforward. First, he reminded us of the definition of “appropriate durability indication” in Regulation 2. This means a ‘use by’ date is only required in the case of a food which, “from the microbiological point of view, is highly perishable and in consequence likely after a short period to constitute an immediate danger to human health…”. Therefore, he submitted, as frozen food does not require a ‘use by’ date (see also Case Stated fact finding at paragraph 2(e)), and as in this case the food the subject of the charges was frozen food, it never needed a ‘use by’ date label at all. He submitted that a person could not commit an offence of selling food after the date shown on a ‘use by’ date within Regulation 44(1)(d) if the food never required such a label. The ‘use by’ label could not properly “…relate to” such food. He further submitted that the relevant date for determining whether a ‘use by’ date label was the “appropriate durability indication” was the date of the alleged offence. The Justices had found (paragraph 6 of the Case Stated) that at the date of the inspection (and so the alleged offences) all the food items were in a frozen state and so not highly perishable. Thus, the Justices were correct to conclude that no offences had been committed.[21]In support of his submissions, Mr Walters referred us (as he had the Justices) to a passage in the commentary on Regulation 44(1)(d) by Dr Roland Rowell in the 2011 Edition of Butterworth’s Law of Food and Drugs at [9855]. In this passage Dr Rowell argues that the prosecution must prove, at the date of the alleged offence, that(i) the food is highly perishable and(ii) is in consequence likely(iii) after a short period to constitute an immediate danger to human health (his emphasis). Dr Rowell further argues that a food with an expired ‘use by’ date is only “regulated under Regulation 44 in the case of a food which requires a ‘use by’ date under reg 2(1)…”. Dr Rowell suggests in his commentary that the burden is on the prosecution to prove, to the criminal standard, each of the three matters identified as at the date of the alleged offence.[22]Mr Walters had adopted that argument before the Justices and they had accepted it, as is clear from paragraph 6 of the Case Stated. Mr Walters submitted to us that the Justices were correct to reach that conclusion.

The construction of the Regulations, in particular Regulation 44(1)(d)

[23]First we note that the definitions set out in Regulation 2 apply to all Parts of the Regulation. Thus the definition of “appropriate durability indication”, including the definition of when a ‘use by’ date is required, applies to both Parts II and IV of the Regulation; so does the definition of “sell”. Secondly, we note that Part II of the Regulations is dealing only with “food that is to be delivered as such to the ultimate consumer or to caterers”. That is clear from both the heading and the terms of Regulation 4(1) which states that Part II applies to “food which is ready for delivery to the ultimate consumer or to a catering establishment” (our emphasis).It must follow that all the requirements set out in Part II are only to apply once food is in a state where it is ready for delivery to the ultimate consumer or the caterer. It cannot be necessary to comply with those requirements before the food is ready for delivery to the ultimate consumer or caterer. But, equally, once food is in that state, the requirements set out in Part II are mandatory.[24]Thirdly, the imperative labelling requirements set out in Regulation 5, which include that of “the appropriate durability indication”, can only apply to food of the type defined in Regulation 4(1). Fourthly, the form of indication that must be used when a ‘use by’ date is required, as set out in Regulation 21, can therefore only required when(a) the food is ready for delivery to the ultimate consumer of to a catering establishment and(b) when it is in that state, it is also “highly perishable” within the definition set out in Regulation 2. So, it seems to us that the key point for complying with the labelling requirements in Part II is the time when the food is “ready for delivery” to the ultimate consumer or caterer.

What does a prosecution have to prove in relation to Regulation 44(1)(d)?

[25]As a preliminary, we note the allied offence created by Regulation 44(1)(a). That paragraph makes it an offence to sell any food which is not marked or labelled in accordance with the provisions of Part II of the Regulations. This is an offence of strict liability. It seems to us that, in relation to Regulation 44(1)(a), the prosecution would have to prove:(1) that the defendant was, at the time of the alleged offence, “selling” within the Regulation 2 definition,(2) food to which Part II applies (ie. food which is ready for delivery to the ultimate consumer or a caterer), and which,(3) when sold, was not marked or labelled as it should have been in accordance with the provisions of Part II.[26]In the case of food which, at the point that it was ready for delivery to the ultimate consumer or a caterer, was “highly perishable”, then, on our reading of the Regulations, that food would require to have a ‘use by’ label from that point onwards. On our view of the Regulations, if food becomes ready for delivery to the ultimate consumer or a caterer and is, at that point, “highly perishable”, then it requires to have a ‘use by’ date attached to it at that point. If the food were thereafter to be frozen, then even if it was no longer “highly perishable” if it were then sold (within the definition of “sell” in Regulation 2) without a ‘use by’ date label, then an offence under Regulation 44(1)(a) would be committed. We understood Mr Walters to accept this proposition. We accept that it may be difficult for the prosecution to prove that the food was in a “highly perishable” state at the moment that it became ready for delivery to the ultimate consumer or to a caterer, but that is the result of the way the Regulations are drafted.[27]With regard to the offence under Regulation 44(1)(d), both sides accepted that it, too, creates an offence of strict liability. But it is necessary to see whether the food was required to have a ‘use by’ label in the first place. Thus if, at the point that the food was ready for delivery to the ultimate consumer or to a caterer, it was frozen food and so not “highly perishable” as defined in Regulation 2, it would have no need to be labelled with a ‘use by’ label at that point. In our view, if the food did not need to have a ‘use by’ label attached to it then any ‘use by’ date label that was attached to that food would not be one “relating to it”, viz. the food. A ‘use by’ label cannot, in our view, “relate” to the food if the food does not require that type of label to be attached to it. Thus it seems to us that, given the definition in the Regulations of the circumstances in which the obligation to label food with a ‘use by’ date arises, a person who sells food after the date shown on a ‘use by’ date when there is no requirement that that food should have such a label cannot be guilty of an offence under Regulation 44(1)(d). Thus, by way of example, if, as a result of a misunderstanding of the Regulations, a person put on a ‘use by’ label on food that was in a frozen state at the point when it was ready for delivery to the ultimate consumer or a caterer and then subsequently sold it after the expiry of the ‘use by’ date, that person could not be guilty of an offence under Regulation 44(1)(d). However, if that food was for sale and was not labelled with an “appropriate durability indication” as required by Regulations 2, 4, 5 and 20, then it would appear that the person selling would (prima facie) be committing an offence under Regulation 44(1)(a).[28]In reaching these conclusions we have noted Mr Kirk’s point that, in contrast to Regulation 44(1)(a), there is no reference in Regulation 44(1)(d) to food being “marked or labelled in accordance with the provisions of Part II of these Regulations”. However, as we have endeavoured to show, the obligation to label food with a ‘use by’ date can only arise in the circumstances set out in Part I and II of the Regulations. The reference to “a ‘use by’ date” in Regulation 44(1)(d) must be construed in accordance with the provisions of Regulations 2, 4 and 5 which set out when the date has to be applied to food. We think that it would be contrary to principles of construction of statutory provisions that create offences to give paragraph (d) any wider construction. Nor, in our view, is there any need to do so in order to make Regulation 44(1)(d) compatible with the 2000 Directive.[29]We note Mr Kirk’s concern that our construction would encourage widespread evasion of the Regulations by persons who would put “highly perishable” food into a state ready for delivery to the ultimate consumer, affix a ‘use by’ label to it, freeze the food and then sell it in a frozen state after the expiry of the ‘use by’ label, then, if prosecuted, claim that no offence has been committed. We think that this concern is met by two points. First, the fact that there is a ‘use by’ label on the food at the time it is being sold (within the wide definition in Regulation 2) must be prima facie evidence that this was and is food which, at the time it was ready for delivery to the ultimate consumer or caterer, was “highly perishable” and so required a ‘use by’ label on it. The prosecution would be entitled to rely on the fact that a ‘use by’ label was attached to the food as evidence in support of its case that the food required such a label and that it was being sold after the ‘use by’ date in contravention of Regulation 44(1)(d). Secondly, in such circumstances, we think that an evidential burden would then lie upon the person who sold the food after the date shown on the ‘use by’ date to demonstrate that the food had not in fact required a ‘use by’ label at the point at which it was made ready for delivery to the ultimate consumer or the caterer.

The answers to the questions posed in the Case Stated

[30]In response to the first question posed by the Justices, our answer is: in order to obtain a conviction of an offence under Regulation 44(1)(d), the prosecution has to prove, to the criminal standard:(1) that, at the point that the food was ready for delivery to the ultimate consumer or to a caterer, it was “highly perishable” and so needed then, and thereafter, to be labelled with a ‘use by’ date;(2) the defendant was, at the time of the alleged offence, selling the food, within the definition of “sell” in Regulation 2; and(3) at the time of the alleged offence, the date on the ‘use by’ label had passed. As noted above, the fact that food is, when being sold, labelled with a ‘use by’ date must be prima facie evidence that the food required to be so labelled in accordance with Regulations 2, 4 and 5. If food is so labelled when being sold, then there would be an evidential burden on the defendant to demonstrate that the label had not, in fact, been required.[31]Our answer to the second question put – viz. if food has been given a ‘use by’ date and then frozen so that it is no longer highly perishable, does that ‘use by’ date case to have effect – is “No”. For the reasons that we have given above, if food requires a ‘use by’ label at the point at which it is ready for delivery to the ultimate consumer or caterer, then it must be labelled with a ‘use by’ date at that point. If the food is subsequently frozen, it does not cease to require to have a ‘use by´ label attached to it.

Conclusion

(d) Conclusion

[32]With respect to the Justices, in our opinion they erred in their construction of the Regulations by posing the questions as formulated by Dr Rowell in his commentary. The Justices should have approached the issues in the manner set out in [30] above. Accordingly, we will order that the matter be remitted to a different panel of Justices to rehear the matter.[33]Although we have concluded that the Justices erred in their approach in law, it does not follow that either the appellant prosecution has won or that the respondent has won this appeal. We invite the parties to make submissions in writing as to the form of the Order to be drawn up and as to costs.

Cited in 1 later judgment