Allan Rich Seafoods v Lincoln Magistrates' Court

Under the post-2006 European food-law regime, approval attaches to the food business or unit of a food business, not merely to premises. A new food business operator must obtain approval where the operator changes, even if the premises, activities, workforce and management remain substantially the same. Approval is not transferable between food business operators. A magistrates’ court must condemn food where a valid certificate under regulation 27 of the Food Hygiene (England) Regulations 2006 establishes non-compliance with the applicable hygiene requirements. The court has no discretion under section 9(6) of the Food Safety Act 1990 once the statutory conditions are met.

West Lindsey District Council applied to the Lincoln District Magistrates’ Court for condemnation of approximately 200 tonnes of fish and fish products stored at the claimant’s premises. The Council alleged that the claimant, a company formed after earlier companies had operated from the same premises, was not approved under the European food-hygiene regime.

The magistrates made a condemnation order under section 9 of the Food Safety Act 1990. The claimant, initially pursuing judicial review and subsequently proceeding by Case Stated, challenged the fairness of the hearing, the finding that approval was absent, the identity of the person or premises requiring approval, and the magistrates’ power to condemn the food.

1. Approval. The appeal was dismissed. Regulations (EC) 852/2004, 853/2004 and 882/2004 had to be read together and in light of their food-safety purpose. The obligations were imposed on food business operators, defined as the persons responsible for compliance within the food business. An establishment meant a unit of a food business, not simply premises. Approval therefore concerned the business or unit operated at the premises and the manner in which the premises were used. The post-2006 regime represented a deliberate change from the earlier law, under which establishment had been defined as premises.
2. There was no express provision permitting approval to be transferred from one food business operator to another. That conclusion was consistent with the legislative purpose and the obligation to assess whether the new operator complied with food law. The claimant, as a new food business operator, required approval notwithstanding the continuity of premises, activities and management. The Food Standards Agency guidance was incorrect to suggest otherwise.
3. The magistrates were entitled to find that no approval had been transferred and that the claimant had not been approved. The evidence before them contained no documentary proof of transfer or approval. Later evidence could not establish that the magistrates had erred in law or exceeded their jurisdiction.
4. The hearing was procedurally fair. The claimant’s managing director had notice, was asked whether he wished to proceed without legal representation or seek an adjournment, declined both, gave evidence, called witnesses and made submissions. The claimant had also been given sufficient opportunities before enforcement action to apply for approval or raise the legal issue.
5. Under section 9(6) of the Food Safety Act 1990, once it appeared on appropriate evidence that food failed to comply with food-safety requirements, the magistrates were required to condemn it. Regulation 27(2) of the Food Hygiene (England) Regulations 2006 treated food certified as non-compliant with the hygiene regulations as failing to comply with food-safety requirements. The valid certificate therefore required the condemnation order. R (on the application of the Food Standards Agency) v Brent Justices [2004] EWHC 459 (Admin) was applied.
6. The Case Stated questions were answered: (a) yes; (b) no; (c) no; (d) neither, for the reasons given; (e) yes; (f) not relevant; and (g) yes.

The claimant initially commenced judicial review proceedings. Permission was granted, but the Case Stated was directed to be heard first. The High Court dismissed the appeal from the magistrates’ condemnation order.