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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Association of Independent Meat Suppliers & Anor, R (On the Application Of) v Food Standards Agency [2015] EWHC 1896 (Admin) (02 July 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1896.html Cite as: [2015] PTSR 1383, [2015] EWHC 1896 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
1 Oxford Row, Leeds, LS1 3BG |
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B e f o r e :
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The Queen on the application of: (1) Association of Independent Meat Suppliers (2) Cleveland Meat Company Ltd |
Claimants |
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and |
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Food Standards Agency |
Defendant |
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Mr Adam Heppinstall (instructed by Ms Bryony Dean) for the Defendant
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Crown Copyright ©
Mr Justice Simon:
Background
The Claimants' case in summary
The legislative and regulatory regimes
1. This Regulation provides the basis for the assurance of a high level of protection of human health and consumers' interest in relation to food, taking into account in particular the diversity in the supply of food including traditional products, whilst ensuring the effective functioning of the internal market.
Food business operators shall not place on the market a product of animal origin unless it has a health mark applied in accordance with Regulation 854/2004
in particular as regards (d) decisions concerning meat.
(a) the health mark is applied only to animals having undergone ante-mortem and post-mortem inspection in accordance with the Regulation and when there are no grounds for declaring the meat unfit for human consumption
(f) derives from animals affected by a generalised disease, such as generalised septicaemia, pyaemia, toxaemia or viraemia.
(q) derives from emaciated animals;
(s) shows soiling, faecal or other contamination;
(u) in the opinion of the [OV], after examination of all relevant information, it may constitute a risk to public or animal health or is for any other reason not suitable for human consumption.
(43) Operators should have the 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.
1. When the competent authority identifies non-compliance, it shall take action to ensure that the operator remedies the situation
2. Such action shall include, where appropriate, the following measures:
(b) the restriction on the prohibition of the placing on the market, import or export of feed or food;
(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 with, 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.
Section 9 of the 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.
(1) An authorised officer of [an enforcement] authority may at all reasonable times inspect any food intended for human consumption which -
(a) has been sold or is offered 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 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 [2013 National Regulations], so far as relating to the second entry in the list of specified EU provisions set out in column 1 of Schedule 2 of this Regulations might be liable to 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 first ground
(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.
Conclusion on first ground
The second ground
Every natural and legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions shall not in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
The Court reiterates, however, that, although the second paragraph of Article 1 of Protocol No.1 contains no explicit procedural requirements, it has been construed to require that persons affected by a measure interfering with their possessions be afforded a reasonable opportunity of putting their case to the responsible authorities for the purpose of effectively challenging those measures. In ascertaining whether this condition has been satisfied, the Court must take a comprehensive view of the applicable procedures (see AGOSI, cited above, §55; Bowler Internationals Unit, cited above, §§44-45; Jokela v. Finland, no 28856/95, §45 ECHER 2002-1V, and Denisova and Moiseyeva v. Russia, no.16903/03, P59, 1 April 2010).
In the Court's view, the lack of any judicial review of the contested measure was undoubtedly a result of deficient domestic legislation, because the relevant law did not provide for such a review, which put the applicant company in a situation of having no safeguards capable to protect it against unjustified interference
and at [49];
Having regard to the above considerations, and in spite of the wide margin of appreciation afforded to the State in this domain, the Court finds that the Government failed to establish that the applicant company's inability to challenge the measures interfering with its rights under Article 1 of Protocol No.1, and the lack of safeguards against arbitrariness, was necessary in a democratic society for the achievement of the legitimate aim pursued.
Conclusion on Ground 2
The third ground.
Conclusion