R (on the Application of Barons Pub Company Ltd) v Staines Magistrates' Court Runnymede Borough Council (Interested Party) DPP (Intervener)

JurisdictionEngland & Wales
JudgePresident of the Queen's Bench Division
Judgment Date18 April 2013
Neutral Citation[2013] EWHC 898 (Admin)
Docket NumberCase No: CO/5035/2012
CourtQueen's Bench Division (Administrative Court)
Date18 April 2013

[2013] EWHC 898 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

President of the Queen's Bench Division

and

Mr Justice Simon

Case No: CO/5035/2012

Between:
R (on the Application of Barons Pub Company Limited)
Claimant
and
Staines Magistrates' Court
Defendant

and

Runnymede Borough Council
Interested Party

and

Director of Public Prosecutions
Intervener

Mr David Lamming (instructed by Horsey Lightly Fynn) for the Claimant

Mr Ethu Crorie (instructed by Solicitor, Runnymede Council) for the Interested Party

Mr Tom Little (instructed by CPS) for the Intervener

President of the Queen's Bench Division

This is the judgment of the court.

1

In these appeal proceedings by way of Judicial Review the claimant (the Owners) challenged the decision of District Judge Workman given on 19 April 2012 refusing to stay as an abuse of process the prosecution of the Owners for breach of regulations under the Food Hygiene (England) Regulations 2006 (the Regulations) made to implement EU Regulations, in particular regulation EC 852/2004.

The background facts

2

The Owners operate a food business at four pubs; one of those pubs is the Rose and Crown Public House, Green Road, Thorpe in Surrey. The regulation of the hygiene of its food business under the Regulations is the responsibility of the Runnymede Borough Council (the Council) and in particular its Environmental Protection Division.

3

On 28 March 2011, one of the Senior Environmental Health Technicians, Mr Ashton, who had been employed by the Council in this capacity since April 1992, visited the Rose and Crown to carry out a routine food hygiene inspection. It was apparent to him that the Owners had not registered as a Food Business Operator since taking over the pub in June 2007. That was confirmed by the staff at the premises.

4

Mr Ashton then carried out an inspection of the pub. In his report he set out six matters that were Hazards, including the potential for the growth and survival of pathogenic micro-organisms due to the lack of cleaning of food equipment and food contact surfaces, the potential for physical contamination of food due to the lack of cleaning of structural surfaces and food equipment, the potential for physical contamination due to food being stored uncovered in the refrigerators and freezers, the potential for cross-contamination due to the use of dirty cloths in the food preparation area, a potential for contamination of food due to lack of training of food handlers and a potential for cross-contamination due to hand contact surfaces being in a dirty condition. The report then went on to set out how much of the kitchen area, floors and walls were dirty, greasy or contained a significant amount of food debris and how equipment was dirty and heavily grease-stained. His statement with accompanying photographs sets out the detail of what he contended were the dirty conditions of the kitchen.

5

Mr Ashton then said he told the Chef Manager of the contraventions of the Regulations that had been found and stated that the kitchen required deep cleaning. He explained that the Owners had the option to close the kitchen voluntarily.

6

He then said he spoke to Mr Price, the Managing Director of the Owners. Mr Ashton said he told him that if the Owners continued to serve food and any complaints were received, then the Owners could face further statutory action; he suggested voluntary closure. Mr Price disputes he was told of voluntary closure. We cannot resolve that issue, but must proceed on the assumption that the prosecution case can be proved.

7

Mr Ashton noted that customers came in and food was prepared for them without any cleaning taking place, even though he had clearly explained the Hazards involved. He said he informed the Chef Manager and the head chef that he would return the following day, by which time all cleaning issues should have been addressed, unless voluntary closure was considered. Later in the day he was told by Mr Price that they would voluntarily clean the kitchen overnight.

8

The following day, 29 March 2011, Mr Ashton re-inspected the kitchen. He said he was disappointed that very little effort had been made to clean the kitchen. The conditions were so unacceptable that he took another series of photographs. He noted that in the storeroom the floors, walls, shelves and ceiling surfaces were still dirty; in the kitchen the food equipment was still dirty and the floor still contained food debris. The ceiling had not been cleaned. He then used paper towelling to run over the floor and wall surfaces and some equipment; the dirt came off with ease. He said he told the Chef Manager that no effort had been made to clean the kitchen effectively. According to Mr Ashton the Chef Manager stated they had cleaned that night but later thought it was not good enough. Mr Ashton said he told them that voluntary closure would have allowed them more time to clean and there were still hazards present. Mr Ashton said he informed them that he considered the training to be inadequate, if they thought they had cleaned the kitchen to any reasonable standard.

9

He then compiled his report and sent a copy to the Owners under cover of a letter dated 29 March 2011. In that letter he stated:

"As I noted a significant amount of contraventions of the above legislation I must caution you:

"You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.""

After summarising in the letter the matters we have set out above, he told the Owners that little or no attempt had been made to clean parts of the pub; this highlighted the importance of closing the premises to clean it thoroughly — advice that had been ignored. He asked the Owners to inform him in writing by Friday, 8 April 2011 why the kitchen and equipment was in such a dirty condition and why there were no permanent procedures in place at the time of his inspection. He also wanted to know why the kitchen was not adequately cleaned prior to his re-visit. The letter concluded with the sentence:

"I have therefore passed this report to my manager with a recommendation for further statutory action."

10

On 6 April 2011 Mr Price on behalf of the Owners wrote to Mr Ashton. The letter explained the efforts that had been made to clean and what else had been done.

The decision to prosecute

11

On 18 April 2011 Mr Ashton sent a "Prosecution Report" recommending prosecution. It summarised the matters we have set out, the offences which, on that evidence, he considered had been committed and a comment that a defence of due diligence under Regulation 11 would not be successful due to the dirty kitchen structure and dirty food equipment, the lack of effective training and the lack of any up-to-date documented procedures. He recommended prosecution for offences on 28 and 29 March 20Mr Ashton's recommendation was approved by Mr D Speight, the Head of Environmental Protection. The report then continued:

"Under the scheme of delegation, authority to issue proceedings rests with the Corporate Head of Governance and Assets in consultation with the Director of Technical Services. (Council Constitution, Scheme of Delegation April 2011).

I, PETER SIMS, director of Technical Services, Runnymede Borough Council, and an officer authorised by the said Council in this behalf:

Having considered the current Environmental Services enforcement policy and the breach of Regulation 17 of the Food Hygiene (England) Regulations 2006 by The Barons Pub Company Ltd at the Rose and Crown, Green Road, Thorpe, Surrey, TW20 8QL, the extent of the breach, and in particular the witness statement of Stephen Charles Ashton together with the supporting evidence in respect of 28 March and 29 March 2011 and being satisfied that the offence has been committed, recommend prosecution.

Signed P Sims Dated 18.4.11

Peter Sims

Director of Technical Services Runnymede Borough Council

Authorisation to proceed with this prosecution is hereby given:-

Signed Mario LeoDated 21/04/11

Corporate Head of Governance and Assets Runnymede Borough Council"

12

On 5 May 2011, a summons was issued requiring the Owners to answer eight alleged contraventions (only on 28 March) of Regulation 17 of the Regulations and various provisions of the EU Regulations.

13

It appears that in the meantime the Owners set about taking further steps to improve the hygiene at the pub. In a statement made by Mr Price on behalf of the Owners for the hearing in the Magistrates' Court he sets out what he described as his attempts to follow, "the informal appeal procedure", to make complaints about the way the case was being handled and the progress they were making.

The attempts by the Owners to stop the prosecution

14

The summons issued on 5 May was returnable on 10 June 2011. Prior to and at that hearing, the solicitors acting for the Owners appeared to have attempted to persuade the Council either to abandon the prosecution or to come to some sort of "plea bargain". That hearing was adjourned.

15

On 17 June 2011 the Owners' solicitors wrote a six page letter to the Council seeking a review of the decision to prosecute; it was suggested that the public interest test and the policies relating to prosecution had not been followed. There might therefore be an abuse of process. That letter was followed on 27 June 2011 by another letter to the Council pointing out a report of a prosecution of another restaurant which it was said gave rise to inconsistency.

16

...

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