JUDGMENT
Torfaen County Borough Council (Appellant) v
Douglas Willis Limited (Respondent)
before
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Toulson
JUDGMENT GIVEN ON
31 July 2013
Heard on 9 July 2013
Appellant
Jonathan Kirk QC
Iain MacDonald
(Instructed by Chief Legal
Officer and Monitoring
Officer, Torfaen County
Borough Council)
Respondent
The respondent did not
appear and was not
represented.
LORD TOULSON (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord
Carnwath agree)
1. Under the Food Safety Act 1990 the appellant local authority (“the
council”) has responsibility for the enforcement of food safety laws in its area,
many of which are contained in regulations made under the Act. We are concerned
in this case with the Food Labelling Regulations 1996 (SI 1996/1499) (“the
regulations”). The respondent (“the company”) carries on the business of buying,
processing and selling meat products.
2. On 29 June 2011 inspectors from the council’s trading standards department
visited the company’s premises where they found a number of packages of frozen
meat labelled with “use by” dates which had passed. An information was preferred
against it, including 23 charges under regulation 44(1)(d).
3. A sample charge was in the following terms:
“On 29 June [2011] at Cwmbran, you Douglas Willis Ltd, Unit 5,
Grange Road, Industrial Estate, Cwmbran, Torfaen, did sell food,
namely ‘Pork Pigs’ Tongues’ … labelled ‘Use by 27/7/09’, after the
date shown in the ‘use by’ date relating to it,
Contrary to Regulation 44(1)(d) of the Food Labelling Regulations
1996 made under the Food Safety Act 1990.”
4. The charges were dismissed by Gwent Justices on 1 September 2011 on a
submission by the company that it had no case to answer. The justices accepted the
company’s argument that the prosecution had to prove that at the date of the
alleged offence the food was highly perishable and likely after a short period to
constitute an immediate danger to human health.
5. The council appealed by way of case stated to the Divisional Court. From
the findings in the stated case, there was no evidence as to when the food items
had been labelled or frozen. However, the justices concluded that since they were
all frozen at the time of the inspection, they were not then highly perishable and so
did not require a “use by” date under the regulations. Therefore no offence was
committed under the relevant regulation.
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6. The appeal was heard by Aikens LJ and Maddison J, who delivered a joint
judgment: [2012] EWHC 296 (Admin), [2012] CTLC 16.
7. The company argued that the justices were right in their approach. The
council argued that the justices were wrong and that the prosecution had only to
show that the company was “selling” (within the meaning of the regulation) food
which was the subject of a “use by” label displaying a date which had passed.
8. The court did not accept either party’s argument. It held that the prosecution
did not have to show that the food was in a highly perishable state at the date of the
alleged offence, but that it did have to show that the food had at some stage been in
a state which required it to be labelled with a “use by” date and that the date had
passed. At the request of the council, the court certified that the case involved the
following point of law of general public importance:
“Does an offence under regulation 44(1)(d) of the Food Labelling
Regulations 1996 require the prosecution to prove that the label or
marking bearing the “use by” date, after which the food was sold,
was applied at a time when (1) the food was ready for delivery to
the ultimate consumer or to a catering establishment, and (2) from
the microbiological point of view it was highly perishable and in
consequence likely after a short period to constitute an immediate
danger to human health?”
9. Permission to appeal was given by this court. The company was not
represented on hearing of the appeal. The reasons are understandable but the result
is unfortunate. From the council’s viewpoint, the appeal raised a matter of general
importance. From the company’s viewpoint, the combination of the costs which it
would incur in contesting the appeal and its potential liability to pay the council’s
costs presented a bigger threat to it than the likely amount of any fines. It is a small
family company. In these circumstances the court asked a member of its legal staff
to prepare a note of points which might have been made on behalf of the company.
This was disclosed to Jonathan Kirk QC, who represented the council. In addition,
mindful that he was appearing for a public authority against an unrepresented
respondent, Mr Kirk himself invited the court to consider those points which he
would have regarded as fairly capable of argument if he had been instructed on the
other side. This was in accordance with the best tradition of the bar and we believe
that it has enabled us fairly to evaluate all the arguments. Nevertheless, it is still
unfortunate that the court did not the have the benefit of hearing argument on both
sides.
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The regulations
10. There are EU Directives about food labelling but the UK regulations go
further than European law requires and it is not necessary to refer to the European
provisions.
11. Part 1 of the regulations contains definitions. Under regulation 2, “sell” is
defined as meaning “offer or expose for sale or have in possession for sale”. The
term “appropriate durability indication” is defined as meaning:
“(a) in the case of a food other than one specified in sub-paragraph
(b) of this definition, an indication of minimum durability, and
(b) in the case of a food which, from the microbiological point of
view, is highly perishable and in consequence likely after a short
period to constitute an immediate danger to human health, a “use by”
date.”
The term “ultimate consumer” is defined as meaning any person who buys
otherwise than for the purposes of resale, for the purposes of a catering
establishment or for the purposes of a manufacturing business. The term “catering
establishment” has a definition which it is unnecessary to set out but it includes
restaurants, schools and hospitals.
12. Part II sets out labelling requirements. Regulation 4(1) provides:
“Subject to [exceptions which are immaterial in the present case],
this Part of these Regulations applies to food which is ready for
delivery to the ultimate consumer or to a catering establishment.”
13. Regulation 5 contains a general labelling requirement. It provides:
“Subject to the following provisions of this Part of these
Regulations, all food to which this Part of these Regulations applies
shall be marked or labelled with –
…
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(c) the appropriate durability indication …”
14. Regulation 21 deals with cases where a “use by” date is required by virtue
of regulations 2 and 5. Regulation 21(1) provides:
“Where a “use by” date is required in respect of a food it shall be
indicated by the words “use by” followed by –
(a) the date up to and including which the food, if properly stored, is
recommended for use, and
(b) any storage conditions which need to be observed.”
15. Regulation 35 prescribes the manner in which food is to be marked or
labelled. It provides:
“When any food other than [immaterial exceptions] is sold, the
particulars with which it is required to be marked or labelled by these
Regulations shall appear –
(a) on the packaging, or
(b) on a label attached to the packaging, or
(c) on a label that is clearly visible through the packaging,
save that where the sale is otherwise than to the ultimate consumer
such particulars may, alternatively, appear only on the commercial
documents relating to the food where it can be guaranteed that such
documents, containing all such particulars, either accompany the
food to which they relate or were sent before, or at the same time as,
delivery of the food, and provided always that the particulars
required by Regulation 5 … (c) … shall also be marked or labelled
on the outermost packaging in which that food is sold.”
16. Part IV deals with offences and legal proceedings. Regulation 44 (1)
provides:
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“If any person –
(a) sells any food which is not marked or labelled in accordance with
the provisions of Part II of these Regulations, or
…
(d) sells any food after the date shown in a “use by” date relating to
it, or
(e) being a person other than whichever of ―
(i) the manufacturer,
(ii) the packer, or
(iii) the seller established within the European
Community,
was originally responsible for so marking the food,
removes or alters the appropriate durability indication
relating to that food,
he shall be guilty of an offence and shall be liable on summary
conviction to a fine …”
17. Regulation 46 provides that it is a defence to a charge under regulation
44(1)(e) to show that the removal or alteration was effected with the written
authorisation of a person who could himself have effected the removal or alteration
without committing an offence under that regulation.
18. Regulation 48 confirms that the extended meaning of “sale” referred to
above applies to offences under the regulations.
19. Section 21 of the Act enables a person charged with an offence under the
regulations to advance a defence of due diligence, ie that he took all reasonable
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precautions and exercised all due diligence to avoid the commission of the offence
by himself or by a person under his control.
The Divisional Court’s judgment
20. The reasoning of the Divisional Court may be summarised as follows:
i) The labelling requirements in Part II together with the definitions in
Part I are fundamental to the scheme of the regulations.
ii) The offence under regulation 44(1)(a), ie selling food which is not
marked or labelled in accordance with Part II of the regulations, is
committed if food is sold which at the point of sale is not marked or labelled
in the way that Part II requires it to have been marked or labelled.
Accordingly, if a time had previously come when the food required to be
labelled with a “use by” label, but there was a failure to do so, an offence
would be committed by thereafter selling it without such a label, regardless
of the condition of the food at the point of sale.
iii) Likewise, the offence of selling food after the date shown in a “use
by” date relating to it, contrary to regulation 44(1)(d), would be committed
if food were sold after the date shown in a “use by” label which Part II
required it to have had.
iv) The need for the prosecution to show that Part II required the food to
have had a “use by” label was implicit in the words a “use by” date relating
to it. The court said at para 27:
“A “use by” label cannot, in our view, “relate” to the
food if the food does not require that type of label to be
attached to it”.
The court went on to say that if, as a result of a misunderstanding, a person
put a “use by” label on food that was in a frozen state at the point when it
became ready for delivery to the ultimate consumer or a caterer, an offence
could not be committed under regulation 44(1)(d) by selling the food after
the expiry of its supposed “use by” date.
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v) The court noted, as the prosecution had pointed out, that regulation
44(1)(d) did not include the words “in accordance with the provisions of
Part II of these Regulations”, by contrast with the language of regulation
44(1)(a). However, it observed that the obligation to label food with a “use
by” date could only arise by reason of the earlier provisions, and it
considered that the reference in regulation 44(1)(d) to a “use by” date must
be construed in accordance with the provisions of regulations 2, 4 and 5.
vi) The court also noted the prosecution’s concern that the court’s
construction would encourage widespread evasion of the regulations by
freezing food after its “use by” date had passed and then selling it without
committing any offence. However, the court considered that the fact that
there was a “use by” label would be prima facie evidence that it was
required, and that an evidential burden would lie on a person who sold the
food after the relevant date to show that it had not in fact required a “use
by” label.
Discussion
21. The Divisional Court was right to reject the company’s argument that the
prosecution had to prove that the food was in a highly perishable state at the time
of the alleged offences under regulation 44(1)(d). On the wording of the
paragraph, all that the prosecution had to prove was that (i) the food was in the
company’s possession for sale (and therefore “sold” within the extended meaning
of that term), (ii) that the food had a “use by” mark or label “relating to” it, and
(iii) that the date shown had passed.
22. To read into paragraph (d) an additional requirement that the food was in a
highly perishable state at the time of the alleged offence would seriously weaken
the regulatory scheme and the protection provided to consumers. It would enable a
retailer of perishable food, which had passed its “use by” date, to freeze it and then
sell it without the consumer knowing how long it had been unfrozen.
23. Mr Kirk submitted that it was similarly wrong for the Divisional Court to
read into the paragraph a requirement for the prosecution to show not only that the
product had a “use by” mark or label, showing a date which had passed, but that it
was required to have such a marking. In his submission, this construction gave the
paragraph, and in particular the word “relating”, a meaning which it did not
naturally bear and which did not accord with the scheme and purpose of the
regulations.
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24. As a matter of ordinary English, I would read “relating to” in the phrase
“sells any food after the date shown in a “use by” date relating to it” as
synonymous with “referring to”; or, in other words, as meaning simply that the
food sold is the subject of a mark or label with a “use by” date. It denotes a factual
connection rather than a legal requirement. The word “relating” is similarly used,
for example, in regulation 35. Dealing with the ways in which marking may be
done, that regulation permits certain particulars to appear on the “commercial
documents relating to the food”. (In fairness to the Divisional Court, Mr Kirk
acknowledged that its attention was not drawn to this point or to other examples in
the regulations where “relating to” is used in the sense of “referring to”.)
25. The next question is whether contextual considerations should lead to the
conclusion that the words of regulation 44(1)(d) are intended to import an
additional connection between the “use by” marking and the food, namely a
requirement for the food to have such a marking under the provisions of Part II.
With respect to the Divisional Court, I do not think that comparison with
regulation 44(1)(a) supports such a conclusion. Rather, the reverse. It is
significant that regulation 44(1)(a) contains the words “marked or labelled in
accordance with the provisions of Part II of these Regulations”, which are missing
from regulation 44(1)(d), and there is an intelligible reason for those words to
appear in paragraph (a) but not in paragraph (d).
26. Paragraph (a) deals with the sale of food which ought to have been, but was
not, marked or labelled under Part II. Once food has been marked with a “use by”
date, the regulations protect the consumer by prohibiting the removal or alteration
of the marking, except by or with the written authority of the person originally
responsible for it, and by prohibiting the sale of the food after the “use by” date
shown. These prohibitions serve a parallel purpose and are set out in paragraphs
(d) and (e).
27. Consider the example given by the Divisional Court of a “use by” label
being placed on food by a mistake. A retailer who bought the food in that state
would commit an offence under paragraph (e) if he removed the label without the
written authority of the original labeller. This is rational because the person
responsible for the labelling will know, first hand, the relevant facts and
circumstances. There would be a lacuna or anomaly if the retailer could
nevertheless sell the product to a consumer after the relevant date had passed.
Paragraph (d) prohibits him from doing so. If, therefore, there has in truth been a
mistake, the way of correcting it within the scope of the regulations is to obtain
written authorisation for removing or altering the label from the person who was
originally responsible for it.
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28. As to the practical problems of enforcement if the Divisional Court’s
construction is correct, the potential complications would be significantly greater
than in a case under paragraph (a). Where food inspectors find food which they
consider has not been marked in accordance with the provisions of Part II,
evidence will be available as to its actual condition at the time of inspection. The
situation would be different in a prosecution under paragraph (d) if the food was
frozen at the time of the inspection. On the Divisional Court’s construction,
questions would arise as to when the marking had been done and what had been
the state of the food at the time of the marking, which would be matters unknown
to the inspectors. Mr Kirk argued persuasively that it is not unrealistic to imagine a
defendant being able to obtain expert evidence sufficient to raise an issue about
whether the state of the food at the time of its marking (whenever that may have
been) would have been such that from a microbiological point of view it was likely
after a short period to constitute an immediate danger to human health. He referred
to literature showing that this is potentially a complex and controversial topic.
Realistically, an enforcement authority might be understandably reluctant to incur
the expense of launching a prosecution if it were likely to become involved in
issues of that kind.
29. There was some discussion in argument about the position if a “use by”
marking was applied maliciously by somebody who had no business to do so.
Suppose that a disaffected customer, or a customer with a warped sense of
humour, were to put labels with expired “use by” dates on meat in a supermarket
before being noticed and stopped. Or suppose that an anonymous employee put
false labels on food products as an act of industrial sabotage. We are not concerned
with cases of that kind. It may be possible as a matter of common sense to construe
paragraph (d) as not intended to apply to a marking made by someone who had no
responsibility at the time of so doing for the production or custody of the food (ie
the opposite of a person envisaged by paragraph (e) as having had such
responsibility and therefore having authority to alter or remove a label) but who
was merely acting as an interfering mischief-maker. However, it is unnecessary to
decide that point, about which the court did not hear argument, and I do not
consider that such a remote consideration should affect the question of
construction with which the court is concerned.
30. I conclude that under regulation 44(1)(d) it is sufficient for the prosecution
to prove that the defendant had food in its possession for the purpose of sale which
was the subject of a mark or label showing a “use by” date which had passed. The
justices were therefore wrong to accept the company’s submission of no case to
answer in relation to the 23 charges brought under that regulation. The answer to
the question certified by the Divisional Court is no. In view of the passage of time,
it would be inappropriate to remit the case to the original justices to continue the
hearing. The Divisional Court ordered that the case should be remitted to a
different panel of justices for a rehearing, and that order will stand, but the
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rehearing will be in accordance with the law stated in this judgment. To that
extent, this appeal is allowed.
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