Regulatory Group Spring Newsletter

Welcome to the St Philips Regulatory Group’s Spring newsletter.

We hope you are well in what are undoubtedly testing times for legal practitioners.

We are all having to adapt, take on and get used to new technology, and, in short, work differently to maintain our practices.  But here at St Philips we are doing our upmost to ensure that our solicitors still receive the best service. All our regulatory barristers are available for telephone and video conferences and hearings, whilst our clerking team, headed up by Alan Durham, remains in a position to fully meet the needs of solicitors and their clients.

As people may have a little more time on their hands than is usual, we thought you might enjoy reading some articles on areas of Regulatory Law. So, in this edition, Ben Williams draws on his knowledge of the law relating to food hygiene and discusses Hygiene Emergency Prohibition Notices. Catherine Ravenscroft provides an insightful article on the use of police intelligence in Licensing cases. Meanwhile, Olivia Beesley sets out her experience of ‘Fitness to Practice’ proceedings and the relationship between ‘Misconduct’ and ‘Impairment’. Finally, Ben Mills discusses the case of R v Andrew Smith [2020] EWCA Crim 38 and the applicability of an offence contrary to the Fraud Act 2006, section 6 to ‘Trading Standards’ cases where an accused tries to mislead an investigation by using fraudulent articles.

Enjoy and stay safe.

Jonathan Barker is a member of the St Philips Regulatory Group and is editor of the team’s newsletter. He read law at UCL and was called to the Bar in 2006. He is recommended by the latest edition of the Legal 500 for Crime. He is on the Attorney General’s List of Specialist Regulatory Advocates in Health & Safety and Environmental Law (Band B).

To find out more about any aspect of the Regulatory Group, please contact Alan Durham (Senior Regulatory Clerk) on 0121 246 2065 or adurham@st-philips.com.

HEPN’s

1. An officer of a food hygiene enforcement authority can issue a Hygiene Emergency Prohibition Notice (‘HEPN’) under reg. 8 of the Food Safety and Hygiene (England) Regulations 2013 (‘the 2013 Regulations’) if satisfied that the “health risk condition” is fulfilled in respect of a food business.
2. Under r.7 (re non-emergency Hygiene Prohibition Orders) the “health risk condition” is defined in sub-clause (2):

(2) The health risk condition is fulfilled with respect to any food business if any of the

following involves risk of injury to health (including any impairment, whether permanent or temporary), namely —

1. the use for the purposes of the business of any process or treatment;
2. the construction of any premises used for the purposes of the business, or the use for those purposes of any equipment; and
3. the state or condition of any premises or equipment used for the purposes of the business.

1. However, for the purposes of r.8 the risk must be “imminent” (r.8(4)).
2. “Imminent” is probably understood quite readily as an ordinary word. An apt definition would be: “coming or likely to happen very soon” (Cambridge Dictionary (https://dictionary.cambridge.org/dictionary/english/imminent)).
3. Reg.8(10) of the 2013 Regulations reads:

Where a hygiene emergency prohibition notice is served on a food business operator, the enforcement authority must compensate the operator in respect of any loss suffered by reason of complying with the notice unless —

1. an application for a hygiene emergency prohibition order is made within the period of three days beginning with the service of the notice; and
2. the court declares itself satisfied, on the hearing of the application, that the health risk condition was fulfilled with respect to the food business at the time when the notice was served,

and any disputed question as to the right to or the amount of any compensation payable under this paragraph is to be determined by arbitration.

1. A declaration may be sought under r8(10)(b) irrespective of whether a Hygiene Emergency Prohibition Order (‘HEPO’) is still thought necessary, as a matter of principle as well as to establish whether the authority may be liable to compensate the food business.

Test & Evidence

1. The test to be applied is whether the court, on the hearing of the application, is satisfied that there was an imminent risk of injury to health. The question is not, for example, whether it was reasonable for the officer to conclude that there was. That much is plain from the wording of the regulation.
2. Furthermore, the court is entitled to apply that test by reference to any relevant evidence available at the time of hearing the application.
3. In HMIHS v Chevron North Sea Ltd [2019] 1 WLR 964, the Supreme Court considered an analogous situation from Health & Safety law.
   1. Under s22 of the Health & Safety at Work etc Act 1974, an inspector can issue a prohibition notice regarding activities if he or she is “of the opinion that… the activities involve or, as the case may be, will involve a risk of serious personal injury”.
   2. On appeal an employment tribunal may either cancel or affirm the notice.
   3. Before the Supreme Court it was common ground between the parties, implicitly approved by the court, that the tribunal on appeal had been required to form “its own view of the facts, paying due regard to the inspector’s expertise” and determine whether the risk existed at the time the notice was served.
   4. The issue before the Supreme Court was whether the tribunal was entitled to take into account evidence, in particular an expert report, which had (for obvious reasons) not been available to the inspector at the time.
4. The conclusion of the Supreme Court was that a tribunal on appeal against such a notice:

“must… be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was. If, as in this case, the evidence shows that there was no risk at the material time, then, notwithstanding that the inspector was fully justified in serving the notice, it will be modified or cancelled as the situation requires.”

1. This involves no necessary criticism of the inspector / officer. It reflects the different factors at play at a different stage in the process.
2. Such an approach is also consistent with the approach taken in licensing appeals – the court conducts a rehearing, taking account of all available evidence, albeit directed to the issue of whether the licensing committee’s decision was ‘wrong’ (R (Hope & Glory Public House Ltd) v City of Westminster MC [2011] EWCA Civ 31).

Observation

1. The question of whether the officer objectively correctly identified an imminent risk to health plainly has significance beyond the procedural implications regarding availability of a full HEPO and compensation. A declaration in support or contradiction of an officer’s assessment could have substantial reputational significance for either party. That aspect will matter whether or not the original perceived failings have been dealt with by the time the application comes to be heard.

Ben Williams is specialist in Criminal & Regulatory law. He is ranked in Chambers & Partners as a Leading Individual and in the Legal 500 as a Leading Junior (Crime). He has extensive experience in Regulatory cases including Food Hygiene. He is on the Attorney General’s List of Specialist Regulatory Advocates in Health & Safety and Environmental Law (Band B).

I acted recently in a licensing committee hearing where a Licensing Authority was asked to consider the premises licence of a nightclub under s53C Licensing Act 2003. The police made representations against the Licence Holder and sought to rely on police intelligence of gang affiliation. It struck me that, while the use of such information is not uncommon, it can occasionally raise questions of confidentiality, fairness and reliability. Yet such material is rarely directly referred to in the procedural rules or guidance applicable to licensing hearings. With the space I have available here, the aim is to introduce the topic and consider the broad, basic principles which apply. I will seek to develop this further in a future piece… watch this space.

First of all, it is important to remember the nature of licensing hearings. These are not hearings designed to test the credibility or reliability of police intelligence. The starting point is well established. Decisions of Local Authority Licensing Committees are administrative decisions. Hearings take the form of “a discussion led by the authority” and in the vast majority of instances cross-examination is not allowed (The Licensing Act 2003 (Hearings) Regulations 2005 (‘the Regulations’), regulation 23).  The question the committee must determine is always what steps should be taken to promote the licensing objectives. It is not for the committee to determine the truth of any allegations or police intelligence. The function of Licensing Authorities is to decide how, in their own view, the information provided in the hearing relates to the licensing objectives and the steps which should be taken to further those objectives.

Second of all, the Licensing Authority can take into account any information presented by a party which is relevant to the effect of the licence on the promotion of the licensing objectives (Paragraph 9.4 of the Home Office Revised Guidance issued under section 182 of the Licensing Act 2003 (‘Home Office Guidance’). It is not therefore wrong in principle for the police to place intelligence before the Licensing Authority where it is relevant to a licensing objective. Indeed, the police are usually to be considered as the “licensing authority’s main source of advice” in relation to the crime and disorder objective (paragraph 9.12 Home Office Guidance). It is therefore anticipated that they will have access to information and sources that are not accessible to the ordinary public.

The Licensing Authority are however encouraged to scrutinize the representations made on behalf of responsible authorities and this must include the police (Paragraph 9.12 Home Office Guidance). Such scrutiny takes the form of questions which may be asked by the authority, and questions asked by another party, through the authority, after seeking permission of that authority (regulation 16(b)). Questions in relation to the source and reliability of police intelligence are clearly within the realms of foreseeable scrutiny the Licensing Authority may exhibit. The answer to these questions may raise issues of confidentiality and the police may be unwilling to answer such questions in the public arena of the hearing. They may have legitimate reasons to wish to protect the source or detail of that intelligence from the public eye.

The procedural rules make provision for withholding information from the public eye where this is deemed necessary. The basic principle governing this area is that meetings of Licensing Authorities shall be conducted in public. Underpinning this principle are notions of openness and transparency. Licensing functions are functions of the local authority conducted for, and on behalf of, the public. The public should therefore be able to follow the exercise of those functions and the local authority should be fully accountable to the public. The Licensing Authority does however retain a power to exclude the public from all or part of a hearing where it “considers that the public interest in so doing outweighs the public interest in the hearing, or that part of the hearing, taking place in public” (regulation 14(2)). Regulation 14(3) extends this power to exclude a party and representative or assistant of that party. At least at the committee hearing, it therefore seems that the procedural rules are sufficiently flexible to allow sensitive issues of police information and intelligence to be discussed out of public view in private discussion between the Licensing Authority and the police.

On appeal, however, the position becomes slightly more difficult depending on the nature of the information or intelligence referred to. Appeals against decisions of a Licensing Authority are generally appeals to the Magistrates Court and/or Crown Court. The regimes these courts can apply to exclude certain information from the public domain are more narrowly circumscribed. Examples such as Public Interest Immunity are also typically linked to the application of the criminal disclosure regime. The applicability of these regimes to appeals against the decisions of Licensing Authorities therefore raise parallel questions about the disclosure obligations of parties to a Licensing decision and also the Licensing Authority themselves at an appeal. In addition, while Appeal courts are generally seen as the emergency backstop to remedy any failings in the original decision of the Licensing Committee, at first glance it may seem that they may lack the same procedural flexibility available to the Committee in their discussions. It may be foreseeable that this lack of similar flexibility may impact on the ability of the Appeal Court to facilitate the evaluation and consideration of police intelligence in relation to the licensing objectives to the extent possible in the committee hearing.

Catherine Ravenscroft is a member of the St Philip’s Regulatory Group. She was called to the Bar in 2017. She has a first class degree in Law from the University of Durham. She welcomes instructions in all areas of Regulatory law.

I recently acted for the Registrant in Fitness to Practice proceedings under the Health and Care Professional Council Regulations. The young man, a paramedic, was only a handful of years into his practice when the incident occurred. It was a case of not completing paperwork, not checking a patient in within a timely manner, and one unfortunate decision involving transportation methods. The patient in his care, an elderly woman, died in Accident and Emergency.

Fortunately for the paramedic, an investigation concluded that her death was natural, and not caused by his omissions. From the outset of the four-day hearing, my client agreed with the majority of the alleged omissions. He did not undertake paperwork, he did not check her in at A&E.

The Sequential Approach

Fitness to Practice allegations operate on three layers during the hearing;

1. Establishing the Facts,
2. Deliberating on whether those Facts amount to Statutory Grounds of Misconduct,
3. Finally, whether Impairment is present for the Registrant; whether they are Fit to Practice

What I found to be forgiving about the proceedings, is that a finding of Misconduct by the panel does not automatically result in a finding of Impairment. If there is no finding of Impairment, no sanctions follow. The Registrant may leave the Hearing Centre with no caution, no conditions of practice, no suspension, and most importantly, with their name still on the Register.

Impairment

So how is it possible for Impairment to not naturally follow a finding of Misconduct? The answer is this: the test of Impairment is expressed in the present tense; that fitness to practise “is impaired.”

The case that lies at the foundation of this test is General Medical Council v Meadow (Attorney General intervening) [2006] EWCA Civ 1390 [2007] 1 QB 462. Sir Anthony Clarke MR stated it clearly;

“In short, the purpose of [fitness to practise] proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past” (para 32)

In addition, the case of Cohen v General Medical Council [2008] EWHC 581 established that evidence that a failing is remediable and has been remedied is relevant to consideration of impairment.

A Registrant may have been Impaired at the time of the failing identified in the allegation, however the Panel’s task is to form a view about the Registrant’s current fitness to practise, by taking account of the way in which the registrant has acted or failed to act in the past and, then looking forwards whether they consider that the Registrant’s ability to practise safely is compromised.

So, there must be acknowledgement that there are situations where the misconduct is unlikely to be repeated in the future or has been remedied by the time of the hearing. After all, in many cases, years have passed between the incident and the hearing.

A ‘personal’ component is considered in three questions:

1. Are the acts or omissions which led to the allegation remediable?
2. Has the registrant taken remedial action?
3. Are those acts or omissions likely to be repeated?

What about Public Policy?

The purpose of Fitness to Practice hearings lies in public protection and public policy issues. Importance is placed in protection, upholding standards of behaviour, and maintaining public confidence. Would public confidence in the profession be undermined if there was no finding of Impairment? Would they lose faith in the Regulatory process? The panel must also face the job of balancing this against current competence, in line with the test of impairment and the ‘personal’ component.

Factors Indicating Fitness to Practice

What then, are the key factors that the panel are looking for in the Registrant?

• Acknowledgement of Fault: admissions at the first instance aids a finding that the Registrant is not Impaired, as this indicates reflective skills, and an ability to change.
• Honesty: a prerequisite to be able to change is to accept faults.
• Training, Courses and Education since the incident: this supports the former point, that the Registrant has strived for improvement since the event.
• Testimonials from Colleagues: a handful of these are appropriate to attest to the Registrant’s ability, skill and standard of practice. It is less relevant to provide ‘character references’, unless you are operating at the Sanction stage.
• Lack of Repetition of Incidents: if there have been no incidents since, this is key to highlight.
• Live Evidence from the Registrant: it is important to hear from the Registrant themselves as to what they would do differently now, and why their actions or omissions were risk inducing. There will always be one professional of the same field on the panel, who are able to assess these points and possibly ask further questions of them.
• Reflective pieces from the Registrant: focussing on the incident itself, or on further practice they have undertaken well.
• The presence of the 10 Health and Care Professional Standards in their work life. It is important to remember that a breach of the Standards themselves are a starting point, though not to be taken of itself as a constitute of misconduct.

All is Not Lost

Returning now to my own client; out of three allegations on three separate incidents, there was only a finding of misconduct in one of the incidents. He had admitted this from the outset. However, despite the finding of Misconduct, no Impairment followed, and therefore no Sanctions. Registrants should not shy away from admissions. Nor should they feel disheartened that a finding of Misconduct is likely in some or all of the allegations. The proceedings are structured to balance the ‘personal’ with the ‘public’; to ensure fitness to practice in the present tense, rather than assessing retrospectively. The proceedings bring fair proceedings for the Registrant, whilst also providing a reliable regulatory process for the service user.

Olivia Beesley is a member of the St Philips Regulatory Group. She was called to the Bar in 2018. She has a first class degree from the University of Birmingham. She welcomes instructions in all areas of Regulatory law.

Introduction

It’s not uncommon for suspected rogue traders or confidence tricksters to turn up for interview clutching a loose file of documents which purport to show a perfectly ordinary, fair and justifiable course of interaction with a complainant. But, often enough, the canny Trading Standards Officer will carry out a number of enquiries which establish that some of that documentation is false. The issue then arises whether to simply include those factors as part of the general evidence of dishonesty or take the substantial step of elevating the conduct to an allegation of attempting to pervert the course of justice.  However, the recent decision in R v Andrew Smith [2020] EWCA Crim 38 (Not our current Head of Chambers Mr Andrew Smith QC) has essentially clarified that, in those sorts of circumstances, the offence of ‘possession of an article for use in fraud’ contrary to section 6 (1) Fraud Act 2006 is also likely to apply.

Basic facts

In 2015 Mr Smith was operating a gardening business called All Seasons Tree and Garden Landscapes. In June 2015, having received one of his business flyers, the complainant Mr Sydney McFarlane, contacted Mr Smith and subsequently entered into a contract with him to complete some work in his garden. The work did not progress as planned and Mr McFarlane complained to Trading Standards. Amongst other things, Mr Smith had failed to inform the complainant of his right to cancel the contract and, when his conduct was assessed as a whole, it was said to amount to fraud rather than the simple summary only offence of failing to provide the required cancellation notice.

However, Mr Smith compounded this dishonesty when, at a later stage, he created a false cancellation notice apparently bearing the complainant’s signature. That was alleged to be a dishonest attempt to cover up the fraud and was reflected on the indictment by a charge under s6 Fraud Act 2006. That section reads as follows:

6 (1) A person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud.

The appeal

The issue on appeal was whether an offence under s6 (1) Fraud Act could include an article which was created after the fraud alleged had been committed. The court concluded that the words “in connection with” are broad. They are ordinary words of the English language and have no technical or restricted meaning. There was no reason why the relevant fraud could not be one which has already been committed in the past. What was important was that the defendant must intend to use the article either then or in the future in connection with fraud.

For example, the document such as the one created in this case, which included a forged signature, was intended to be used in connection with the fraud because it was designed to demonstrate falsely that a customer had in fact received and signed for the statutory notice.

Practical application

So, if in the future a suspected rogue trader is in possession of documentation that was used to mislead a victim, or is later found to have created one in order to disguise or mask the fraud and in that way promote a defence against criminal prosecution, s6 Fraud Act 2006 is likely to be apt. It is also likely to apply equally to a third party who is in possession of, or provides, such an article. In that way it may be a more attractive alternative to an allegation of attempting to pervert the course of justice.

Ben Mills is the Joint-Deputy Head of St Philips Regulatory Group. He is also a Recorder of the Crown Court. By his regular inclusion in Chambers and Partners and the Legal 500, Ben is recognised as a leader in the field of regulatory crime. He works predominantly in Consumer Protection, Health and Safety Law, Environmental Law, Fire Safety, Fraud and associated complex confiscation proceedings. He is on the Attorney General’s List of Specialist Regulatory Advocates in Health & Safety and Environmental Law (Band A).