A recent decision in the Court of Appeal could have significant repercussions for food businesses across the country after it confirmed that criminal Courts can consider banning organisations from operating any food business in the future if the circumstances merit it.
The ruling also sheds light on the level of fines imposed on businesses generally when convicted of food safety offences, drawing a parallel with health and safety offences.
What were the circumstances?
Crestdane Limited operated a successful restaurant in London, with an annual turnover of £2 million.
The company was prosecuted for offences under the Food Hygiene (England) Regulations 2006 due to dirty conditions in the kitchen, evidence of mouse droppings, a lack of proper hand washing facilities for staff and poorly completed kitchen records, amongst others. Conditions were poor enough to warrant temporary closure of the restaurant after a Local Authority Officer imposed a Hygiene Emergency Prohibition Order ("HEPO"), which is served in circumstances where there is an imminent risk of injury to health and is lifted once those circumstances no longer exist.
A HEPO should be contrasted with a Hygiene Prohibition Order ("HPO"), which the Court can make following conviction for a food hygiene offence if it is "proper to do so". A HPO can prevent a business from participating in the running of any food business in the future, or face further prosecution and potential imprisonment for individuals.
Why is the case important?
The case of Crestdane is the first case which provides guidance on the principles which should be applied when the Court comes to consider the imposition of HPOs. This will be welcome to the lower Courts who are routinely called upon by Local Authorities to fine businesses for food safety offences and are empowered to consider shutting down the business altogether.
Perhaps unsurprisingly, the Court in Crestdane reiterated that each case must turn upon its own facts but unusually decided to impose a HPO on the business, in addition to the fine of £50,000 for breaching the Regulations. Interestingly the Court held that the power to impose a HPO might be appropriate even where any immediate risk to health has passed but there is a risk of some future breach. The imposition of a hefty fine on the business would also not preclude the Court from considering a HPO.
But what if the breaches have been rectified?
What is clear is that food businesses cannot rest on...