Barry Richard Holmes and Another v Ministry of Agriculture and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MORISON |
| Judgment Date | 19 May 2000 |
| Judgment citation (vLex) | [2000] EWHC J0519-4 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1017/99 |
| Date | 19 May 2000 |
[2000] EWHC J0519-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
The Strand
London
Mr Justice Morison
CO/1017/99
MR F A PHILPOTT (instructed by Messrs Heyman & Co, Leigh, Lancs
WN7 1AZ) appeared on behalf of THE APPELLANT
MR DAVID GEEY (instructed by the Solicitor for the Ministry of
Agriculture, Fisheries & Food) appeared on behalf of THE RESPONDENT
Friday 19 May2000
This is an appeal by way of case stated. The background to the appeal may be shortly summarised. Mr Barry Holmes is the proprietor of a meat processing business which trades under the name BR & M Holmes. It is a family business engaged in meat processing, that is the mincing of meat for items such as hamburgers and the cutting or dicing of meat for other types of food. The latter activity occupied between 10-20% of the business' output, but in order to carry on this business the proprietor was required to obtain a licence to carry on this trade from their premises at Golborne, near Warrington, Lancashire.
Although there are several sets of regulations made under the Food Safety Act 1990, this case is concerned with the Fresh Meat (Hygiene and Inspection) Regulations 1995, to which I shall refer hereafter simply as "the Regulations".
These Regulations were made pursuant to various enabling provisions in the Act. In particular, and relevantly, they were made pursuant to various paragraphs in section 16(1), (2)(a) and (3) and to paragraphs under Schedule 1 and also pursuant to section 19 of the Act. Subsections (1), (2) and (3) of section 16, together with the stipulated paragraphs of Schedule 1, are concerned with food safety and food hygiene matters. Ministers were given the power to make regulations. Section 16 of the Act provides:
"(1) The Ministers may by regulations make —
….
(b) provision for securing that food is fit for human consumption ….
(c) provision for requiring, prohibiting or regulating the use of any process or treatment in the preparation of food;
(d) provision for securing the observance of hygienic conditions and practices in connection with the carrying out of commercial operations with respect to food or food sources;
….
(2) The Ministers may also by regulations make provision —
(a) for securing the observance of hygienic conditions and practices in connection with the carrying out of commercial operations with respect to contact materials which are intended to come into contact with food intended for human consumption;
…."
The relevant provisions of Schedule 1 to the Act, pursuant to which these Regulations were made, are at paragraph 5:
"(1) Provision for imposing requirements as to —
(a) the construction, maintenance, cleanliness and use of food premises, including any parts of such premises in which equipment and utensils are cleaned, or in which refuse is disposed of or stored;
(b) the provision, maintenance and cleanliness of sanitary and washing facilities in connection with such premises; and
(c) the disposal of refuse from such premises.
(2) Provision for imposing requirements as to —
(a) the maintenance and cleanliness of equipment or utensils used for the purposes of a food business; ….
….
6(1) Provision for imposing responsibility for compliance with any requirements imposed by virtue of paragraph 5(1) above in respect of any premises —
(a) on the occupier of the premises;….
….
7(1) Provision for securing the inspection of food sources by authorised officers of enforcement authorities for the purpose of ascertaining whether they —
(a) fail to comply with the requirements of the regulations; or
(b) are such that any food derived from them is likely to fail to comply with those requirements.
(2) Provision for enabling such an officer, if it appears to him on such an inspection that any food source falls within sub-paragraph (1)(a) or (b) above, to give notice to the person in charge of the food source that, until a time specified in the notice or until the notice is withdrawn —
(a) no commercial operations are to be carried out ….
…."
It will be seen therefore that the Regulations were made pursuant to powers designed to ensure that premises used for food preparation, such as the premises in question in this case, should be kept clean and that all the equipment or utensils used for this food business should be kept clean and hygienic. But the Regulations were also made pursuant to the Minister's licensing powers. Thus the Regulations were dealing with regulatory matters relating to the use of premises, in addition to the hygiene and cleanliness requirements.Regulation 20(1) provides:
"The occupier of any licensed premises —
….
(b) shall take all practicable steps to secure compliance by any person employed by him or by any person invited on to the premises with the provisions of these Regulations;
….
(d) shall take all necessary measures to ensure that, at all stages of production, the requirements of these Regulations are complied with and carry out checks (including any micro-biological checks the Minister may require) on the general hygiene of conditions of production in his establishment to ensure that equipment and, if necessary, fresh meat, comply with the requirements of these regulations;
…."
Regulation 21 provides:
"(1) If any person contravenes —
(a) regulation 10(1); or
(b) regulation 12(1), he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(2) If any person contravenes —
(a) any other provision of these Regulations; or
(b) a condition imposed by the Minister under regulation 6(4),
he shall be guilty of an offence and shall be liable —
(i)on summary conviction, to a fine not exceeding the statutory maximum; or
(ii)on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both."
Part I of Schedule 7 provides relevantly as follows:
"The occupier of any premises shall keep them, or cause them to be kept, in such a state of cleanliness and otherwise so conduct them as to prevent the risk of contamination of any fresh meat in the premises …. and in particular shall —
….
(h) ensure that …. all fixtures, fittings and equipment are kept clean;
….
(j) cause the interior surfaces of any room or other place in which fresh meat or by-products are produced, cut up, handled, stored or packaged, and any room used for the retention of such meat rejected as being unfit for human consumption, to be cleaned and disinfected as often as may be necessary to maintain them at all times in a satisfactory state of cleanliness ….
….
(q) ensure that receptacles …. which contain …. refuse …. are kept covered with closely fitting covers; ….
…."
Finally, Schedule 1 provides:
"1. All …. cutting premises …. shall have —
….
(e) equipment and fittings —
(i)of a durable, impermeable and corrosion-resistant material (which may not be wood except in rooms where only packaged fresh meat is stored) not liable to taint fresh meat and of such construction as to enable them to be kept clean and disinfected;
…."
The appellant was charged with four separate offences following an inspection carried out at the premises by a qualified person. Photographs were taken and produced to the court. The first information read:
"Contrary to Regulation 21(2)(a) and Schedule 7, Part I, 1(j) of the Fresh Meat (Hygiene and Inspection) Regulations 1995 and to Sections 16 and 17 of the Food Safety Act 1990, being the occupier of licensed cutting premises, failed to cause the interior surfaces of factory premises at Wood Street, Golborne, near Warrington, Lancashire, to be cleaned and disinfected as often as was necessary to maintain them at all times in a state of cleanliness."
Five particulars of the alleged offence were given:
"(1) The tray wash area floor was covered in old wrapping material and meat.
(2) Large quantities of meat debris were on the floor of the clean storage tray area.
(3) Floors in the main production area were covered in quantities of waste meat and debris.
(4) Old minced meat was lying on the floor of the school meals area.
(5) The floor of the new cardboard storage was covered in debris and meat."
The second information read:
"Contrary to Regulation 21(2)(a) and Schedule 7, Part I, 1(h), of the Regulations and to sections 16 and 17 of the Act, being the occupier of licensed cutting premises, failed to ensure that all fixtures, fittings and equipment at the said premises were kept clean."
Eight particulars were given:
"(1) Storage pallets in the clean tray storage area contained quantities of meat debris.
(2) All surfaces of the Magurit machine in the main production area contained layers of old meat, encrusted fat and mould.
(3) Both Biro mincers in the main production area contained layers of old meat, encrusted fat and mould.
(4) The drain channel in the burger room was blocked with bits of old meat.
(5) Pieces of old burger meat were located at both ends of the nitrogen tunnel in the burger room.
(6) Trays in the burger packing room were contaminated with old meat.
(7) The table in the new cardboard storage room was dirty.
(8) The drains in the new cardboard storage room were dirty and uncovered."
The third information was expressed to be an offence contrary to Regulation 21(2)(a) and Schedule 7, Part I, 1(q) of the Regulations and to sections 16 and 17 of the Act
"being the occupier of licensed cutting premises, failed to ensure that receptacles containing waste located on the said premises were kept covered with closely fitting covers."
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