Tesco Stores Ltd. v London Borough of Harrow

For the purposes of the prosecution time limit in section 34 of the Food Safety Act 1990, discovery occurs when the prosecuting authority has objectively disclosed to it facts sufficient to found a reasonable belief that an identified person may have committed an offence. It is unnecessary for the authority to investigate, confirm the facts, obtain the suspected article, or determine the viability of a defence before time begins to run. The relevant facts are those capable of founding the charge, not facts proving the defendant’s responsibility for the contamination. Investigation follows discovery and cannot postpone it.

Tesco was prosecuted after a customer complained that a bread roll bought from its store contained wire. The customer contacted Harrow’s environmental health department on 19 February 2001. The information was laid on 21 February 2002.

The magistrates concluded that discovery had not occurred by 19 February 2001, apparently treating 23 February, when the investigating officer spoke to the customer and obtained the roll, as the relevant date. Tesco appealed by way of case stated. The central issue was when the prosecutor had discovered the offence for the purposes of section 34 of the Food Safety Act 1990.

1. Appeal allowed. The magistrates’ conviction, sentence, fine and costs order were quashed. Tesco was granted a defendant’s costs order below, and its costs in the High Court were to be assessed if not agreed.
2. Section 34 imposes a limitation period running from the earlier of three years after commission of the offence or one year after its discovery by the prosecutor. The court adopted the formulation in John Charles Brooks v Club Continental [1981] Tr L 126 DC: discovery means disclosure to the appropriate officer of all facts material to found the relevant charge. Discovery does not import investigation or confirmation of those facts.
3. The material facts were the ingredients of the charge: that Tesco had sold food for human consumption which was so contaminated that it was unreasonable to expect it to be used in that state. It was unnecessary for the prosecutor to know that Tesco had caused the contamination, or to possess and inspect the roll.
4. The preferable practical approach was to ask whether the facts disclosed, viewed objectively, gave the prosecuting authority reasonable grounds to believe that an offence may have been committed by an identified person. Time begins at that point. The authority’s subsequent investigation, including investigation of a possible defence, cannot defer discovery. This approach was consistent with R v Bexley Justices ex parte Barratt Homes Limited.
5. The complaint received on 19 February objectively raised the issue that the food was unfit for human consumption because it contained wire or metal. The magistrates therefore erred in treating the later conversation with the customer or possession of the roll as necessary to discovery.

• Magistrates’ Court: Concluded that discovery had not occurred by 19 February 2001 and treated the prosecution as not time-barred.
• High Court (Administrative Court): Allowed Tesco’s appeal by way of case stated and quashed the conviction, sentence, fine and costs order.