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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Association of Independent Meat Suppliers & Anor, R (on the application of) v The Food Standards Agency [2017] EWCA Civ 431 (20 June 2017) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2017/431.html Cite as: [2018] PTSR 1330, [2017] EWCA Civ 431, [2017] WLR(D) 422 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
The Hon Mr Justice Simon
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE RAFFERTY
and
LORD JUSTICE KITCHIN
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The Queen on the Application of the Association of Independent Meat Suppliers & Anor |
Appellants |
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- and - |
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The Food Standards Agency |
Respondent |
____________________
for the Appellants
Sir Alan Dashwood QC and Adam Heppinstall (instructed by FSA Legal) for the Respondent
Hearing date: 16 May 2017
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Crown Copyright ©
Lord Justice Kitchin:
Introduction
The legal framework
Regulation 178/2002
"'food law' means the laws, regulations and administrative provisions governing food in general, and food safety in particular, whether at Community or national level; it covers any stage of production, processing and distribution of food, and also of feed produced for, or fed to, food-producing animals;"
"1. Food shall not be placed on the market if it is unsafe.
2. Food shall be deemed to be unsafe if it is considered to be:
(a) injurious to health;
(b) unfit for human consumption."
Regulation 852/2004
Regulation 853/2004
"1. Food business operators shall not place on the market a product of animal origin handled in an establishment subject to approval in accordance with Article 4(2) unless it has either:
(a) a health mark applied in accordance with Regulation (EC) No 854/2004;"
or
(b) when that Regulation does not provide for the application of a health mark, an identification mark applied in accordance with Annex II, Section I of this Regulation."
Regulation 854/2004
"1. This Regulation lays down specific rules for the organisation of official controls on products of animal origin.
1a. This Regulation shall apply in addition to Regulation (EC) No 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."
"Member States shall ensure that official controls with respect to fresh meat take place in accordance with Annex I.
1. The official veterinarian shall carry out inspection tasks in slaughterhouses, game handling establishments and cutting plants placing fresh meat on the market in accordance with the general requirements of Section I, Chapter II, of Annex I, and with the specific requirements of Section IV, in particular as regards:
…
(d) post-mortem inspection;
…
2. The health marking of carcases of domestic ungulates … as well as half-carcases, quarters and cuts produced by cutting half-carcases into three wholesale cuts, shall be carried out in slaughterhouses … in accordance with Section I, Chapter III, of Annex I. Health marks shall be applied by, or under the responsibility of, the official veterinarian when official controls have not identified any deficiencies that would make the meat unfit for human consumption."
"1. The official veterinarian is to supervise health marking and the marks used.
2. The official veterinarian is to ensure, in particular, that
(a) the health mark is applied only to animals (domestic ungulates, farmed game mammals other than lagomorphs, and large wild game) having undergone ante-mortem and post-mortem inspection in accordance with this Regulation and when there are no grounds for declaring the meat unfit for human consumption. However, the health mark may be applied before the results of any examination for trichinosis is available, if the official veterinarian is satisfied that meat from the animal concerned will be placed on the market only if the results are satisfactory;" (Emphasis added)"
Regulation 882/2004
"Operators should have a right to appeal against the decisions taken by the competent authority as a result of the official controls, and be informed of such a right."
"This Regulation shall be without prejudice to specific Community provisions concerning official controls."
"1. When the competent authority identifies non-compliance, it shall take action to ensure that the operator remedies the situation. When deciding which action to take, the competent authority shall take account of the nature of the non-compliance and that operator's past record with regard to non-compliance.
2. Such action shall include, where appropriate, the following measures:
…
(b) the restriction or prohibition of the placing on the market, import or export of feed, food or animals;
(c) monitoring and, if necessary, ordering the recall, withdrawal and/or destruction of feed or food;
…
3. The competent authority shall provide the operator concerned, or a representative, with:
(a) written notification of its decision concerning the action to be taken in accordance with paragraph 1, together with the reasons for the decision;
and
(b) information on rights of appeal against such decisions and on the applicable procedure and time limits."
The Food Safety and Hygiene (England) Regulations 2013 (SI 2013 No. 2996)
"Application of section 9 of the Food Safety Act 1990
25. Section 9 of the [1990] Act (inspection and seizure of suspected food) applies for the purposes of these Regulations with the modification that it shall apply in relation to an authorised officer of an enforcement authority as it applies in relation to an authorised officer of a food authority."
"Food which has not been produced, processed or distributed in accordance with the Hygiene Regulations
29.—(1) On an inspection of any food, an authorised officer of an enforcement authority may certify that it has not been produced, processed or distributed in compliance with the Hygiene Regulations.
(2) Where any food is certified as mentioned in paragraph (1) it shall be treated for the purposes of section 9 of the Act as failing to comply with food safety requirements.
(3) Where any food certified as mentioned in paragraph (1) is part of a batch, lot or consignment of food of the same class or description, all the food in the batch, lot or consignment shall, until it is proved that it has been produced, processed or distributed in compliance with the Hygiene Regulations, be treated for the purposes of paragraph (2) as having been so certified."
The Food Safety Act 1990
"9 - Inspection and seizure of suspected food
(1) An authorised officer of a food authority may at all reasonable times inspect any food intended for human consumption which—
(a) has been sold or is offered or exposed for sale;
(b) is in the possession of, or has been deposited with or consigned to, any person for the purpose of sale or of preparation for sale; or
(c) is otherwise placed on the market within the meaning of Regulation (EC) No 178/2002.
and subsections (3) to (9) below shall apply where, on such an inspection, it appears to the authorised officer that any food fails to comply with food safety requirements.
…
(3) The authorised officer may either—
(a) give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it—
(i) is not to be used for human consumption; and
(ii) either is not to be removed or is not to be removed except to some place specified in the notice; or
(b) seize the food and remove it in order to have it dealt with by a justice of the peace;
and any person who knowingly contravenes the requirements of a notice under paragraph (a) above shall be guilty of an offence.
(4) Where the authorised officer exercises the powers conferred by subsection (3)(a) above, he shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he is satisfied that the food complies with food safety requirements and—
(a) if he is so satisfied, shall forthwith withdraw the notice;
(b) if he is not so satisfied, shall seize the food and remove it in order to have it dealt with by a justice of the peace.
(5) Where an authorised officer exercises the powers conferred by subsection (3)(b) or (4)(b) above, he shall inform the person in charge of the food of his intention to have it dealt with by a justice of the peace and—
(a) any person who under section 7, regulation 19(1) of the Food Safety and Hygiene (England) Regulations 2013, so far as relating to the second entry in the list of specified EU provisions set out in column 1 of Schedule 2 to those Regulations or regulation 4(b) of the General Food Regulations 2004 might be liable to a prosecution in respect of the food shall, if he attends before the justice of the peace by whom the food falls to be dealt with, be entitled to be heard and to call witnesses; and
(b) that justice of the peace may, but need not, be a member of the court before which any person is charged with an offence under that section in relation to that food.
(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; and
(b) any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food.
(7) If a notice under subsection (3)(a) above is withdrawn, or the justice of the peace by whom any food falls to be dealt with under this section refuses to condemn it, the food authority shall compensate the owner of the food for any depreciation in its value resulting from the action taken by the authorised officer.
(8) Any disputed question as to the right to or the amount of any compensation payable under subsection (7) above shall be determined by arbitration …"
The judgment of Simon J
"51. … to have this result the 2013 Regulations would have to have had a provision making substantial modifications to the operation of section 9 of the 1990 Act, which applies to food intended for human consumption which has been sold, offered for sale, or is in possession, has been deposited or consigned for the purpose of or in preparation for sale or is otherwise placed on the market. A carcase at a slaughterhouse which lacks a health mark fits into none of these categories. Furthermore it cannot properly be described as having been placed on the market, since a carcase cannot be placed on the market without a health mark, see article 5 of Regulation 853/2004. If it were placed on the market without a health mark the person who was responsible would be guilty of a criminal offence and the meat could be condemned under section 9. A carcase at the slaughterhouse, which the OV has refused to mark and which must be disposed of as animal by-product, cannot be treated as having been 'placed on the market' and is outside of the scope of a provision which is designed to deal with the inspection and seizure of suspected food."
The appeal
Conclusion
Lady Justice Rafferty:
Lord Justice Jackson: