The below content was written prior to May 2020 when Checkit launched a new website. This coincided with the use of updated terminology for solutions, concepts and company names. The companies Tutela, Axon and Next Control Systems are now Checkit. Checkit’s Real-time Operations Management is now referred to as Connected Workflow Management, Tutela solutions are now referred to as Automated Monitoring +, and Axon/Next Control Systems solutions are now referred to as Connected Building Management.
Civil Liability vs. Criminal Liability
In the UK legal system for food safety control, it’s possible, and not infrequently the case, for a Food Business Operator (FBO) to accept responsibility for producing food that has caused food poisoning, to acknowledge the fact, and even offer financial compensation to a victim, yet still elect to go to a Criminal Court and plead not guilty to a charge of causing it.
This may seem incongruous at first sight, but is actually a very important separation of civil liability for causing injury, from criminal liability for being culpably negligent.
Food safety law is criminal law. ‘Culpable negligence’ or ‘recklessness’ are specific levels of judicial sentencing seriousness, ultimately carrying a maximum imprisonment of two years. Good records can be a strong evidential support to any FBO faced with an unavoidable civil liability, but trying to defend against a charge of criminal liability.
EHOs can and do prosecute FBOs through the Magistrates’ and Crown Courts on the criminal basis of failure to meet legally required food hygiene and safety requirements.
This would invariably be based on demonstrable evidence of under processing, grossly poor sanitation, infestation and/or vermin activity, raw meat to cooked meat cross contamination, and ‘reasonable association’ of current food poisoning incidents with any specific food service outlet. For example:
September 2013; Coventry Crown Court; The owner of a Coventry Restaurant and Takeaway was imprisoned for 27 weeks for multiple breaches of food safety regulations, and his business partner given a suspended sentence of six months imprisonment and ordered to carry out 180 hours of unpaid work in the community. The restaurant was permanently closed.
Prosecution action such as this usually follows a sequence of advice and warnings given by EHOs, both verbally and in writing. This is their ‘enforcement pyramid’, and starts with ‘friendly’ informal verbal advice, followed by Improvement Notices, moving through Condemnation Orders and up to Closure and Prohibition Orders, including criminal prosecution (as in this example) enforced through the Criminal Courts. Good records can be used in defence mitigation arguments to demonstrate that the detail of the early advice and Improvement notices has actually been implemented by the FBO.
There is a recent marked trend for EHOs to enforce Closure Orders at an earlier stage, a trend that recent financial and resource cutbacks may only serve to maintain.
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