Food Safety in UK Law

However the test is formulated, the maintenance of public health must be regarded as a very important objective in the application of Article 36 EC and must carry great weight in the balancing exercise (paragraph 43). Nevertheless, the national legislature has a considerable margin of appreciation, especially in legislating on matters which raise complex economic issues connected with the community's fundamental policies (paragraph 46).

As Mr Heppinstall pointed out, 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.

The Guideline provides a structure within which to sentence for breaches of health and safety legislation. At Step One, the court is enjoined to determine the offence category. As part of that exercise it must first decide “culpability”. There are four levels of culpability: very high, high, medium and low.

Consideration of “harm” follows in the context that the offences under sections 2 and 3 of the 1974 Act are ones of creating a risk of harm. The Guideline requires the court to determine both the seriousness of the harm risked and the likelihood of that harm arising. Each of those factors may be ascribed to one of three categories. The hierarchy of harm is then divided into four categories by the Guideline, as set out in the following table:

Given the constitutional position as this court now holds it to be, a minister who reserves a decision to himself—and equally a civil servant who is authorised by him to take a decision—must know or be told enough to ensure that nothing that it is necessary, because legally relevant, for him to know is left out of account. This is not the same as a requirement that he must know everything that is relevant.

This approach to the matter searches for the assumed common intention of the supplier and the consumer as to whether it is a term of the bargain that the product be supplied in order to be eaten hot. By this entirely objective enquiry, the court derives the terms of the bargain from what each party to the contract says and does (including the presentation of the supply in the shop and in any advertising).

Injunctive relief may be sought (a) before any foreign proceedings have begun; (b) once they have begun; (c) within a relatively short time afterwards; (d) when the pleadings are complete; (e) thereafter but before the trial starts; (f) in the course of the trial; (g) after judgment. That being so, the longer an action continues without any attempt to restrain it the less likely a court is to grant an injunction and considerations of comity have greater force.