Know your limits, show your limits: Lessons from Food Standards Agency v Bakers of Nailsea Ltd (2020)

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The Food Standards Agency (“FSA”) made three applications for the issue of a summons to commence proceedings against Bakers of Nailsea Ltd (“BNL”), the food business operator for an abattoir in Nailsea, near Bristol, for offences contrary to the Food Safety and Hygiene (England) Regulations 2013 (“the 2013 Regulations”).

The allegations related to BNL’s facilities for disinfecting tools, handwashing facilities and carcass trimming, alleged failures to comply with hygiene improvement and remedial action notices and alleged breaches of Regulations 6, 9 and 19 of the 2013 Regulations.

Regulation 18 of the 2013 Regulations provides:

“No prosecution for an offence under these Regulations, which is punishable under these Regulations under paragraph (2) of Regulation 19, shall be begun after the expiry of three years from the commission of the offence; or one year from its discovery by the prosecutor.”

BNL argued before a district judge that the applications were a nullity because the FSA had not complied with Criminal Procedure Rule 7.2(3)(b)(i), which provides that the application must demonstrate that it had been made in time, if the relevant legislation imposes a time limit.

The FSA conceded that the applications had not been validly laid by virtue of the failure to comply with CrimPR 7.2(3)(b)(i), and that any new applications would be out of time under Regulation 18 of the 2013 Regulations.

The district judge concluded that the applications were nullities and that he had no jurisdiction to try them. The FSA appealed by way of case stated, the question being whether the district judge had erred in law.

The FSA’s argument

On appeal, the FSA sought to resile from their concession as to the validity of the applications. It contended that CrimPR 7.2 did not impose a mandatory requirement on the prosecutor to identify the relevant legislation and dates for time limits. The FSA argued that once a summons had been issued, if it disclosed an offence and was within time, it was not a “nullity”, and that the remedy for non-compliance with a procedural rule was not to render otherwise valid proceedings irregular.

Decision

The Court considered two questions:

1.     Could the FSA resile from its concession?

2.     Was the FSA’s construction of CrimPR 7.2(3)(b)(i) correct?

Both were answered in the negative.

In answering “no” to the first question, the Court was clear that compelling circumstances would be required to persuade the Court to allow the FSA, a sophisticated and represented party, to resile from its position. Permission to change position on appeal should only be granted in exceptional circumstances (R v E [2018] EWCA Crim 2426), and there was no good, let alone exceptional, reason to allow the FSA to change its stance on appeal. Allowing a second bite of the cherry would be contrary to the overriding objective, and to tie the FSA to an express and considered concession was not contrary to the interest of justice.

In answering “no” to the second question, the Court ruled that the FSA’s interpretation of CrimPR 7.2(3)(b)(i) was contrary to the rule’s clear purpose to ensure that the court was fully assisted on a without notice application. The FSA’s interpretation would render the rule otiose, and ignored that some time limits run from the date of discovery (as may be the case under Regulation 18 of the 2013 Regulations). In such cases, the mere identification of the fact of an alleged offence would not demonstrate that the application had been served within the legislative time limit. An ordinary and natural interpretation of the rule’s language was that there had to be at least a reference to the applicable time limit, otherwise, without some positive action, it was not “demonstrated” that the application had been made in time.

The applications were a nullity and the district judge had had no jurisdiction to entertain them.

Conclusion

This case serves as a cautionary tale for prosecutors. In applying for a summons to commence a prosecution, it is clear that Criminal Procedure Rule 7.2(3)(b)(i) creates an obligation to demonstrate that the application is made in time, if legislation imposes a time limit.

It is not enough that the summons is issued within the time limit. Failing to at least refer to any legislative time limit applicable to the offence in an application for the issue of a summons will render the application a nullity. If the time limit then expires before such an omission is identified and rectified, as happened in this case, prosecutors can expect to find no sympathy from the magistrates’ court.

Called to the Bar in 2017, Alex is a member of the Regulatory and Criminal Groups at St Philips Chambers. He has experience of dealing with matters across the regulatory spectrum including, but not limited to, food hygiene/safety, taxi licensing, trading standards and Environmental Act offences.