M Najib & Sons Ltd v Crown Prosecution Service

A guilty plea does not bar an appeal where the defendant irrevocably admits the alleged facts but challenges whether, in law, those facts constitute an offence. A conviction is unsafe if the admitted facts do not amount to a criminal offence.

Inspectors appointed under the Transmissible Spongiform Encephalopathies (England) Regulations 2010 may act only to enforce those Regulations. A duty to assist an inspector cannot be inferred from an EU obligation imposed on the United Kingdom where the national Regulations create no corresponding obligation on a slaughterhouse operator. Courts cannot fill that legislative omission by creating a criminally enforceable duty.

M Najib & Sons Ltd v Crown Prosecution Service concerned a slaughterhouse operator convicted at Derby Crown Court of failing, without reasonable cause, to assist an inspector taking sheep-brain samples for transmissible spongiform encephalopathy testing.

Following a preliminary ruling by His Honour Judge Egbuna on 12 January 2017, the company pleaded guilty while purporting to reserve its right to appeal the legal ruling. It was fined on 22 May 2017. The appeal raised whether the plea barred an appeal, whether the inspector’s request fell within the national Regulations, whether the inspector had the necessary authority, and whether DEFRA’s monitoring programme was unlawful.

1. Appeal allowed; conviction quashed. The guilty plea did not prevent the company from contending that the facts it admitted did not in law constitute an offence. The appeal did not seek to retract factual admissions. It challenged the legal consequence of those admissions. The court applied the reasoning in R v Asiedu [2015] EWCA Crim 714: a conviction is unsafe where admitted facts do not amount to a criminal offence.

2. Under the Transmissible Spongiform Encephalopathies (England) Regulations 2010, an inspector may be appointed only for the purpose of enforcing those Regulations. The expression “these Regulations” in regulations 12 and 17(b) refers to the national instrument, not to the separate EU TSE Regulation. An offence under regulation 17(b) therefore requires a request for assistance made in performing an enforcement function under the national Regulations.

3. The Regulations imposed no duty on a slaughterhouse operator to provide, or assist in taking, samples from sheep slaughtered for human consumption as part of the monitoring programme. Schedule 2, paragraph 14 imposed duties only after an animal had been selected and sampled. It did not create an earlier duty to assist sampling. Regulation 13(1) gave a right of entry but did not supply the missing obligation. Nor could the power in regulation 14(1)(f) to take samples be exercised to enforce an obligation which the Regulations did not impose.

4. The court rejected the submission that the appointment letter restricted inspectors to the listed bovine-related functions. Its additional authorisations enabled inspectors to act on the Secretary of State’s behalf and did not cut down their general enforcement appointment. That conclusion did not cure the absence of a relevant statutory duty.

5. Although unnecessary to the result, the court rejected the challenge to DEFRA’s selection of slaughterhouses. In the EU TSE Regulation, the reference to holdings with more than 100 animals concerned agricultural holdings with resident flocks, not slaughterhouses by annual throughput. Even a failure to require other operators to participate would not make the request made of this company unlawful.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2018] EWCA Crim 909.

• Derby Crown Court: Following a preliminary ruling rejecting the company’s legal arguments, the company pleaded guilty on 5 May 2017 to failing to assist an inspector and was fined on 22 May 2017.