Enforcement Policy - Food Safety

This Policy must be read in conjunction with the Environmental Health and Licensing Service Enforcement Policy.

Objective

It is our policy to ensure that as far as possible food and drink intended for sale for human consumption, which is produced, stored, distributed, handled or consumed within this borough, is without risk to the health and safety of the consumer.

General principles

The Council will carry out it’s duties in accordance with the Framework Agreement issued by the Food Standards Agency.

Officers taking enforcement action in the form of verbal warnings, written warnings, statutory notices, formal cautions or prosecution will base their action upon an assessment of risk to the health of consumers.

Officers will have regard to the guidance on enforcement action contained in the statutory Code of Practice issued under Section 40 of the Food Safety Act 1990 and guidance issued by the Food Standards Agency, the Local Authorities Co-ordinators of Regulatory Services (LACORS) etc.

Officers must treat everyone they deal with, with courtesy and respect and in accordance with the Council's Equal Opportunities Policy.

The Council aims to ensure that there is consistency of enforcement by officers:

• Within Rochdale Borough Council: through monitoring by the Food Safety Manager, by accompanied inspections carried out by the Senior Environmental Health Officer and through group discussion at Food Team meetings.
• Within the Greater Manchester Authorities through attendance and involvement with the Greater Manchester Food Liaison Group and Greater Manchester Food Quality System.

Officers will always aim for consistent enforcement action but absolute uniformity will never be expected, as individual circumstances may affect the action to be taken.

All officers must comply with this policy, when making enforcement decisions.  Any departure from it must be exceptional, capable of justification and be through full consultation with the Senior Environmental Health Officer unless there would be a significant risk to the public in delaying a decision.

Throughout this policy reference to the Senior Environmental Health can also include the Food Safety Manager in their absence.

All officers must be fully acquainted with the requirements of this policy.  In addition this policy will be discussed periodically at Food Team meetings.

This enforcement policy should be read in conjunction with the Work Instructions which form part of the Council's Food Quality System

Authorisation of Officers

We will ensure that officers who are authorised to initiate enforcement action are competent to do so, are suitably qualified and have relevant and adequate experience of food safety enforcement.  A training record will be kept for each officer.

Enforcement Officers consist of Environmental Health Officer (EHO's) and Food Safety Officers (FSO's).  Individual Officers’ enforcement roles will depend upon qualifications, experience etc and will be determined by the Senior EHO/Food Safety Manager.  Individual authorisations are issued and all officers will be advised of their precise responsibilities and powers.

Appeals

Proprietors may wish to query or appeal against our enforcement actions. Where requested, officers must provide the name and telephone number of the Senior Environmental Health Officer who will investigate and decide the issue, involving the enforcing officer at all stages.  This information will be included in all letters issued following food safety inspections.

Enforcement options

We recognise the importance of maintaining consistency in its approach to making all decisions which concern food safety enforcement action, including prosecution.  Officers must, therefore, always have regard to the guidance in Statutory Codes of Practice, LACORS circulars and advice offered in relation to the Home Authority Principal.

Our aim is that enforcement decisions should be consistent, balanced, fair and relate to common standards that ensure the public is adequately protected.  Therefore, in coming to any decision, an officer must consider the following criteria:

• The seriousness of any offence(s)
• The past history of the business
• Their confidence in the management of the business
• The consequences of non compliance
• The likely effectiveness of the various enforcement options
• The availability of statutory defences, for example, due diligence.

The choices for action are:

• To take no action
• To take informal action
• To use statutory notices
• To use a formal caution
• To prosecute
• To use prohibition procedures

If an Officer is considering taking action which may impact upon the operating practices of other local authorities, or is contrary to any advice issued by LACORS, they will ensure that the matter is discussed with the Senior EHO and, where appropriate, at the Greater Manchester Food Liaison Group prior to initiating action.  If the issue still remains unresolved the Group should ask LACORS to consider the issue to ensure consistent enforcement.

If an officer is considering taking action which may be contrary to any advice issued by the relevant home and/or originating authority they will ensure the matter is discussed with the relevant authorities before taking action.  Most importantly, the home authority must be consulted if the planned enforcement action impacts on aspects of an enterprise's policy which has been agreed centrally by the decision making base of the enterprise.

In general the overriding concern in taking enforcement action is: "Does this serve the public interest?"

Informal action

Informal action to secure compliance with legislation and to remove risk to health, includes offering advice, issuing verbal warnings and requests for action, the use of letters and the issue of food hygiene inspection reports, including those generated on a premises following an inspection.

Most proprietors wish to comply with legal standards and officers should be prepared to offer advice where it is appropriate or is requested, and to encourage these proprietors to adopt good food hygiene practice.  In these cases the officer's role will be to guide and support rather than enforce.

The use of informal action should be considered where one or more of the following apply:

• The action or omission is not serious enough to warrant formal action.
• The individual's/enterprise’s past history has been one of co-operation and it can be reasonably expected that informal action will achieve compliance.
• Confidence in the individual's/enterprise's management is high/or the problem was revealed by an approach for advice from the business.
• The consequences of non-compliance will not present a risk to public health.
• When dealing with voluntary organisations using volunteers, informal action will be used providing there is no risk to public health.
• Where it is appropriate to seek adjudication on an issue (e.g. through LACORS).
• Reluctance of witnesses to testify.

Officers will issue an inspection report (Q.Doc.900) after every food safety inspection as required by the FSA Code of Practice.

When using an informal approach, whether verbal or written, officers must clearly differentiate between legal requirements and recommendations.

In the case of written documentation officers must ensure it:

• Makes clear what work is required and why it is necessary
• Makes clear which legislation has been contravened and the measures necessary to achieve compliance
• Makes clear that alternative measures will be acceptable if they achieve the same effect.
• Clearly differentiates between legal requirements and recommendations.
• Includes details of the senior officer they should contact if they are not satisfied with the required course of action

Statutory notices

Improvement Notices - The use of Improvement Notices should, in general, be related to risk to health, therefore they should not be used for minor technical contraventions.  Only officers who are authorised may serve an Improvement Notice.

The use of Improvement Notices should be considered where one or more of the following apply.

• There are significant contraventions of legislation
• There is a lack of confidence in the proprietor or enterprise to respond to an informal approach.
• There is a history of non-compliance with formal action
• Standards are generally poor with little management awareness of statutory requirements.
• The consequences of non compliance could be potentially serious to public health.
• Although it is intended to prosecute, effective action also needs to be taken as quickly as possible to remedy conditions that are serious or deteriorating.

Officers serving Improvement Notices should, where appropriate, consult with the Senior EHO.

Authorised officers should not sign an Improvement Notice on behalf of another officer unless they have witnessed the offence and are satisfied with this chosen course of formal action.

Officers will follow all relevant guidance in statutory Codes of Practice and LACORS advice; and they must use the relevant work instruction.  In particular realistic time limits for compliance must be set and wherever possible discussed with the proprietor prior to service.  The following factors should be considered:

• The risk to public health
• The nature of the problem
• The availability of solutions

Failure to comply with an Improvement Notice will normally result in court proceedings and the recipient should be made aware of this.  Officers must therefore be satisfied that:

• They have sufficient evidence to justify the notice
• They are prepared to pursue non-compliance in Court
• That proceedings are likely to succeed

The responsible 'home authority' and 'originating authority' must be advised of improvement notices in which they are likely to have an interest i.e. those which affect the centrally decided policies or procedures of an enterprise.

Emergency Prohibition Notices (EPN) - It should only be necessary to consider the use of an EPN in one or more of the following circumstances:

• The consequences of not taking immediate and decisive action to protect public health would be unacceptable.
• An immediate risk of injury to health can be demonstrated.  This may include evidence from relevant experts, including a food analyst or food examiner.
• The guidance criteria specified in the relevant statutory Code of Practice, concerning the conditions when prohibition may be appropriate, are fulfilled.
• There is no confidence in the integrity of an offer made by a proprietor voluntarily to close premises or cease the use of any equipment, process or treatment associated with the imminent risk. 
• A proprietor is unwilling to confirm in writing their offer of a voluntary prohibition.

Only authorised officers can serve an EPN.  Officers will be authorised by the SEHO/Food Safety Manager depending upon experience and training.  Their authorisation will indicate this and be updated as necessary.  The officer must follow the relevant Work Instruction, which emphasises the need to refer to the relevant Code of Practice and LACORS guidance.

Authorised officers should where appropriate consult with the Senior EHO prior to service of the EPN.

Where appropriate the officer should seek expert advice.  Advice is available from the Consultant for Communicable Disease Control, Food Standards Agency, Public Health Laboratory Service, Public Analyst.

Voluntary procedures to remove an imminent risk of injury to health may be used, at the instigation of either the proprietor or manager of a business. An officer may also suggest this option but in circumstances where they would be unable to use an EPN.

Prosecution policy

Officers may consider prosecution when one or more of the following situations arises:

• Where the alleged offence involves a flagrant breach of the law such that public health, safety or well being has been put at risk.
• Where the alleged offence involves a failure by the suspected offender to correct an identified serious potential risk to food safety having been given a reasonable opportunity to comply with the lawful requirements of the Officer.
• Where the offence involves a failure to comply in full or in part with the requirements of a statutory notice.
• Where there is a history of similar contraventions or offences related to risk to public health.

The officer, in conjunction with the SEHO, must consider all relevant evidence and information to enable a consistent, fair and objective decision to be made.

There must be relevant, admissible, substantial and reliable evidence that an offence has been committed by an identifiable person or company.  There must be a realistic prospect of conviction, a bare prima facie case is not enough.  Where an officer has any doubt about the evidence associated with a case they must discuss the case with Legal Services Section.

In addition to sufficient evidence, it must also be in the public's interest to prosecute.  The Code for Crown Prosecutors includes the following factors:

the seriousness of the alleged offence:

• The risk of harm to public health
• Identifiable victims
• Failure to comply with a statutory notice served for a significant breach of legislation
• Disregard of public health for financial reward

The previous history of the party concerned.

• Offence following a history of similar offences
• Failure to respond positively to past warnings
• Failure to comply with statutory notices

The likelihood of the defendant being able to establish a due diligence defence the officer must refer to relevant guidelines on due diligence from LACORS, CIEH case law and so on. 

The ability of any important witnesses and their willingness to co-operate.

The willingness of the party to prevent a recurrence of the problem.

The probable public benefit of a prosecution and the importance of the case - e.g. whether it might establish a legal precedent.

• The general advice is, the graver the offence, the less likelihood there will be that the public interest will allow anything other than a prosecution.

Whether other action e.g. formal caution, improvement notice or imposing a prohibition, would be more appropriate or effective.

Any explanation offered by the company or the suspected offender.

• Suspected offenders must be invited to offer an explanation in writing, before the case is considered by the Chief Environmental Health and Licensing Officer.

The officer must follow the relevant Work Instruction and prepare the prosecution file as soon as possible - this matter taking priority over other routine work.  The file must be considered by the Chief Environmental Health and Licensing Officer and if legal proceedings are approved delivered without delay to the Legal Services Section.

A Court may impose a Prohibition Order following certain prosecutions, if it is satisfied that there is a risk of injury to health.  In these instances the officer must be able to produce sufficient evidence to assist the Court in their decision.  This may include evidence in form of photographs, samples, reports from relevant experts including a food analyst or food examiner.  Evidence produced must satisfy the guidance criteria in the relevant Code of Practice.

Where appropriate, the officer must notify the 'Home' and 'Originating' authorities of the outcome of any prosecutions taken.

Formal cautions

There will be instances where a formal caution can be used as an alternative to a prosecution.

The Home Office Circular 59/1990 states that the purpose of the formal caution is:

• To deal quickly and simply with less serious offences
• To divert less serious offences away from the Courts
• To reduce the chances of repeat offences

Officers must ensure the following:

• There must be evidence of the suspected offender's guilt sufficient to give a realistic prospect of conviction
• The suspected offender must admit the offence
• The suspected offender must understand the significance of a formal caution and give an informed consent to being cautioned

A formal caution must not be used if:

• There is insufficient evidence to consider taking a prosecution
• Where the suspected offender does not make a clear and reliable admission of the offence

Officers must never apply any pressure on a person to accept a caution.

Before proposing a formal caution the officer must discuss the case with the Senior EHO.  They must then follow the relevant Work Instruction.

Formal cautions will be issued by a representative our Legal Section.

Where a formal caution is issued, officers must ensure that the 'Home Authority' and the 'Originating Authority' are notified where appropriate.

If a person declines the offer of a formal caution, the officer will normally proceed with a prosecution.  Any exception to this must be agreed with the Senior EHO.

Enforcement within Local Authority run premises

We will ensure that appropriate action is taken in relation to premises where the authority is itself the proprietor of a food business.

Where matters can appropriately be dealt with by informal means, these will be brought to the attention of the relevant manager.

Where Formal action is required, this will be brought to the attention of the Chief Executive of the Council in accordance with the requirements of the FSA Framework Agreement.

Reviewed August 2005

  
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