In 2002, a coronavirus named SARS erupted in southern China, causing severe pneumonia in some victims.  It rapidly spread to other countries. It infected more than 8,000 people and killed 774.  Ten years later, MERS hit Saudi Arabia, causing and more than 850 deaths.  The latter disease still lingers in the region.

Now, in 2020, we have 2019-nCoV, which has, at the time of writing, led to 2,000 deaths and has infected around 74,000 people; with two patients confirmed in the UK.

What do these strains of coronavirus (which include the common cold) have in common?  They have leapt from animals to humans.  The first patients of the 2020 Coronavirus visited or worked at a seafood market in the Chinese city of Wuhan.  SARS was originally thought to have transferred from civet cats sold in a Chinese live animal market; however, scientists later established that the virus originated in bats who infected the cats.  Bats are also thought to have infected camels, leading to the MERS outbreak.

Dr Ian Lipkin of Columbia University, who assisted the World Health Organisation (WHO) and China during the SARS outbreak and advised Saudi Arabia about MERS, told the New York Times, “These wildlife markets are a risk.”

Indeed they are.  Bats, civets, porcupines, turtles, bamboo rats, many kinds of birds and other animals are piled together in markets such as the one in Wuhan, providing fertile ground for viruses to mutate and transfer to other species, including humans.

Alongside the tragic deaths and sickness caused, the latest virus stemming from an open market[1], has resulted in a storm of headlines across the world, leading to fear and the risk of panic.

We seldom think about the importance of food hygiene regulations.  Situations like we are experiencing at present (as I write I note that Singapore has just closed its border with China), serve as a strong reminder of how robust laws protect us.  Those who operate food manufacturing plants, restaurants, market stalls, and takeaways need to ensure they are fully aware of their duties and responsibilities under food hygiene regulations.  Otherwise, the consequences can be grave, not only for their commercial operation but for the public at large.

A summary of food hygiene prosecution

Much of the UK’s current food hygiene laws derives from the European Union and will therefore not change during the transition period which may or may not end in December 2020.

The two main food offences are found under sections 7 and 8 of the Food Safety Act 1990:

• Section 7 – Rendering food injurious to health by adding any article or substance; using any article or substance as an ingredient; abstracting any constituent; or subjecting it to any other process or treatment, with the intent that it shall be sold for human consumption
• Section 8 – Selling food not complying with food safety requirements.

‘Injurious to health’ is broadly defined in Article 14(4) of Regulation (EC) No 178/2002 and refers to:

• Not only to the probable immediate and/or short-term and/or long-term effect of that food on the health of a person consuming it, but also on subsequent generations.
• To the probable cumulative toxic effects.
• To the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers.

Article 14(2) to (5) of Regulation (EC) 178/2002 provides that it is an offence to market a product after the expiry of its ‘use by’ date.

Defences to food prosecution matters

Both a company and individuals can be prosecuted under the Food Safety and Hygiene (England) Regulations 2013.  A statutory defence is available if the Accused can prove that they or someone under their control (such as a manager) took all reasonable precautions and exercised all due diligence to avoid the offence occurring.

High risk equals harsh penalties

The maximum sentence following conviction after trial on indictment, in the Crown Court, is an unlimited fine, two years’ custody or both.  Following summary conviction in the Magistrate’s Court, the maximum sentence is an unlimited fine.

The Welsh regulations provide for slightly different maximum penalties.

Under regulation 17(1) of the Food Hygiene (Wales) Regulations 2006, the maximum penalty following conviction on indictment is an unlimited fine, two years’ custody or both. Following summary conviction, it is an unlimited fine.

Under regulation 4 of the General Food Regulations 2004, the following maximum conviction on indictment is an unlimited fine, two years’ custody or both. Following summary conviction, it is an unlimited fine, six months’ custody or both.

If a conviction occurs, the judge will work from Sentencing Guidelines to decide a punishment.  This will include examining any aggravating and mitigating factors stemming from the Defendant’s behaviour/operations.  Therefore, even if a guilty plea is the only realistic route, your legal team will be responsible for arguing any mitigating circumstances and will seek to persuade the Court that the culpability and harm caused was low.

The risk of business-breaking fines cannot be underestimated.  In Ealing LBC v Bakshi unreported 16 October 2017 (MC (Ealing)), the Court gave a fine of more than £155,000 to the owner of a restaurant for several food hygiene offences under the Food Safety and Hygiene (England) Regulations 2013.  Two local authority inspections had uncovered breaches, and the restaurant had demonstrated a history of low food hygiene performance since 2009.

For the welfare of humanity, food safety must be prioritised by all those in food-related industries.  And only by ensuring compliance with rules and regulations will you have a statutory defence available should you face prosecution.  Although it may not be an exciting element of your work, understanding your food safety duties and responsibilities will protect your business and your customers.  And that makes good commercial sense.

Tanveer Qureshi specialises in health and safety, food hygiene, and environmental law.  If you require legal representation, please contact Tanveer directly at tqureshi@4-5.co.uk or via his chambers, 4-5 Gray’s Inn Square. for more about Tanveer or to subscribe to his newsletters, please go to www.tqlegal.co.uk 

[1] Open markets occur in other nations aside from China.