Hygiene Prohibition Procedures · Prohibition Overview Hygiene Emergency Prohibition If Authorised...

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Hygiene Prohibition Procedures A webinar presented by: Dr Andy Bowles Attendee Notes Page0

Transcript of Hygiene Prohibition Procedures · Prohibition Overview Hygiene Emergency Prohibition If Authorised...

Page 1: Hygiene Prohibition Procedures · Prohibition Overview Hygiene Emergency Prohibition If Authorised Officer is satisfied that an Imminent Risk of injury to health exists in respect

Hygiene Prohibition Procedures

A webinar presented by:

Dr Andy Bowles

Attendee Notes

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Hygiene ProhibitionProcedures

Dr Andy Bowles

Hygiene Prohibition Procedures

In this webinar I will discuss Prohibition Orders issued by the Court Hygiene Emergency Prohibition Notices Procedural matters The court hearing

Prohibition Orders

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Overview

Food Safety and Hygiene (England) Regulations 2013 (Food Hygiene (Wales) Regulations 2006) provide for: Prohibition Orders (Regulation 7) Emergency Prohibition (Regulation 8)

OverviewProhibition Orders Issued by Magistrate. On conviction of Food Business Operator For offences under the regulations If satisfied “Health Risk Condition” fulfilled Prohibit: Premises, process or equipment Person from participating in management of business

Sentencing Guidelines

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Sentencing guidelines

Available at:https://www.sentencingcouncil.org.uk/

Apply to Individual offenders(over 18 yrs) Organisations Sentenced on or after 1st February 2016

Step 1OffenceCategory

Step 2Starting point/Category

range

Step 3Financialelement

Step 4RelevantfactorsStep 5

Reductionfor guilty

plea

Step 6Compensation

and Orders

Step 7Totality

Step 8Reasons

Step 9Bail

allowance

Application of Guidelines

Individuals

Prohibition Orders“If -

(a) a food business operator is convicted of an offence underthese Regulations; and(b) the court by or before which he is so convicted is satisfiedthat the health risk condition is fulfilled with respect to the foodbusiness concerned, the court shall by an order impose theappropriate prohibition.” Reg 7(1)

Key terms: Food Business Operator Offence under these Regulations Health Risk Condition Appropriate prohibition

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Offence under these Regulations

Any breach of: Food Safety & Hygiene (England) Regulations 2013 Equivalent Regulations in Wales, Scotland and NI

Non compliance with: 852/2004- General Hygiene requirements 853/2004- Specific hygiene requirements for POAO 2073/2005- Microbiological Criteria of foodstuffs Regs

Health Risk Condition

This requirement is met if any of thefollowing involves a “Risk to Health”

Use for the purposes of the business of any: Process or treatment

Construction of any premises used for businessor use of any equipment.

State or condition of any premises or equipment

Appropriate Prohibition Prohibition of: Use of process or treatment for the purpose of the business

Use of premises or equipment for purposes of the business or any other business of

same class or description.

Use of premises or equipment for the purposes of any food business

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Summary of health risk condition andappropriate prohibition

The Health Risk Condition is met if any of thefollowing involves the risk of injury to health:

Regulation 7(2)

Appropriate Prohibition

Regulation 7(3)

The use for the purposes of the business of anyprocess or treatment

A prohibition on the use of the process ortreatment for the purposes of the business.

The construction of any premises used for thepurposes of the business, or the use for thosepurposes of any equipment

Prohibition on the use of the premises orequipment for the purposes of the business orany other food business of the same class ordescription.

The state or condition of any premises orequipment used for the purposes of thebusiness

Prohibition on the use of the premises orequipment for the purposes of any foodbusiness.

Prohibition of Persons“If —

(a) a food business operator is convicted of an offenceunder these Regulations; and(b) the court by or before which he is so convicted thinks itproper to do so in all the circumstances of the case, thecourt may, by an order, impose a prohibition on the foodbusiness operator participating in the management of anyfood business, or any food business of a class ordescription specified in the order.” Reg 7(4)

Prohibition of Persons

Lifting of order: Application to the court required After a minimum of 6 months from issue. If refused Must wait 3 months to apply again.

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Summary

Prohibition Order can be issued: To prohibit premises, equipment or process Where use involves risk to health and; Health risk condition remains. Or; To prohibit food business operator from participating

in management If food business operator convicted under the

Regulations

Hygiene EmergencyProhibition

OverviewHygiene Emergency Prohibition If Authorised Officer is satisfied that an Imminent

Risk of injury to health exists in respect of Premises, piece of equipment or process

May serve Hygiene Emergency ProhibitionNotice (HEPN)

This will ensure immediate closure of premises or; prohibition of equipment/process

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Overview

Application must then be made to MagistratesCourt, for a Hygiene Emergency Prohibition Order (HEPO) within 3 days.

Magistrate Shall impose Hygiene Emergency Prohibition Order (HEPO) if satisfied on application that Health Risk condition fulfilled

HEPO supersedes the HEPN.

Overview of procedure

Day 1

• HEPN

• Notice ofintention toapply forHEPO

Day 2 Day 3

• Applicationfor HEPO

Possibly Day 3• Hearing• Issue of

HEPO

Hygiene Prohibition

Three important areas to consider: Determination of “imminent risk” Procedural matters Court hearing

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Hygiene Emergency Prohibition

Determination of Imminent Risk

Definitions

“If an authorised officer of an enforcement authority issatisfied that the health risk condition is fulfilled withrespect to any food business he may by a noticeserved on the relevant food business operator (inthese Regulations referred to as a “hygieneemergency prohibition notice”) impose theappropriate prohibition. Reg 8(1)

Key terms: Authorised Officer Satisfied Health risk condition Appropriate prohibition

Satisfied

The officer should have made reasonableenquiry and have adequate evidence.

Decision can be made by one officer Best practice to consult Colleagues Experts if necessary

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Health Risk Condition Same as Reg 7 (2) except that need to prove

“Imminent risk to health” If any of the following involves an “Imminent

Risk to Health” Use for the purposes of the business of any: Process or treatment

Construction of any premises Use of any equipment State or condition of any premises or equipment

Imminent Risk Imminent risk of injury to health It is the risk of injury that is imminent, injury itself

may occur sometime later. Essential to show that injury could occur

Examples: Defective process or treatment Condition of premises or equipment which carries

high risk of causing food poisoning

Food Law Code of Practice7.2.4.1 When to use HEPNs

very poor structural condition and poorequipment and/or

poor maintenance or routine cleaning and/orserious accumulations of refuse, filth or otherextraneous matter, resulting in the actualcontamination of food or a significant risk offood contamination

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Food Law Code of Practice7.2.4.2 Health risk conditions

Health risk conditions where prohibition of aprocess may be appropriate Serious risk of cross contamination. Failure to achieve sufficiently high processing

temperatures. Operation outside critical control criteria, for example, incorrect pH of a product which may

allow Clostridium botulinum to multiply.

The use of a process for a product for whichit is inappropriate.

(

Appropriate prohibition

Prohibition of: Use of process or treatment for the purpose of the business

Use of premises or equipment for purposes of the business or any other business of

same class or description. Use of premises or equipment for the purposes of any food business

Voluntary ClosureFood Law Code of Practice 7.2.5

May be offered by officer Only in circumstances where HEPN appropriate. FBO must be advised to take independent legal advice

Officer should: Consider risk of premises reopening Explain to the FBO that rights to compensation relinquished Ensure terms of closure are written down and that person

has authority to enter into such an agreement. Ensure frequent checks carried out on premises

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Hygiene EmergencyProhibition

Procedural Matters

Overview Once “imminent risk” established HEPN served on food business operator Copy of HEPN affixed to premises/equipment ‘Notice of intention to apply for a hygiene

emergency prohibition order’ served on food business operator

Application for HEPO within 3 days (Excl Sat, Sun & Bank Holidays)

CompensationWhere a hygiene emergency prohibition notice is served on a food

business operator, the enforcement authority shall compensate him inrespect of any loss suffered by reason of his complying with the noticeunless —

(a) an application for a hygiene emergency prohibition order is madewithin the period of three days beginning with the service of the notice;and

(b) the court declares itself satisfied, on the hearing of the application,that the health risk condition was fulfilled with respect to the foodbusiness at the time when the notice wasserved, and;

any disputed question as to the right to or the amount of anycompensation payable under this paragraph shall be determined byarbitration. Reg 8 (10)

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Service of Documents

HEPN should be served On food business operator in accordance with Regulation 30

If food business operator not present Copy of notice served on person responsible

HEPN takes effect as soon as served Can be served by another Officer

Service of Documents“… an officer shall not apply for a hygiene emergency

prohibition order unless, at least one day before thedate of the application, he has served notice on therelevant food business operator of his intention toapply for the order.” Reg 8 (3)

Key points Notice is provided for in Code of Practice “At least one day” One clear day between service and application

Schedule of works The authorised officer should make clear to

the food business operator: The matters that constitute the imminent risk Measures necessary to remove this risk

Can be achieved by serving a schedule ofworks together with “notice of intent” Note: this is not a legal requirement

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Application to the court

“A hygiene emergency prohibition notice shall ceaseto have effect — (a) if no application for a hygiene emergency

prohibition order is made within the period ofthree days beginning with the service of the notice,at the end of that period; or

(b) if such an application is so made, on thedetermination or abandonment of the application.”Reg 8 (7)

Key point Application

Application

Application for a Hygiene EmergencyProhibition order means When application is made in writing to the court Not the hearing of the application itself.

Farrand v Tse, (1992) Times, 10 December

Overview of procedure

Day 1

• HEPN

• Notice ofintention toapply forHEPO

Day 2 Day 3

• Applicationfor HEPO

Possibly Day 3• Hearing• Issue of

HEPO

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Hygiene EmergencyProhibition

Court Hearing

Duty of the Magistrates

If a magistrates’ court is satisfied, on theapplication of such an officer, that the healthrisk condition is fulfilled with respect to any foodbusiness, the court shall, by an order (in theseRegulations referred to as a “hygieneemergency prohibition order”), impose theappropriate prohibition” Reg 8 (2)

Key Terms Satisfied Health Risk Condition Appropriate Prohibition

Satisfied

Burden of Proof Matter for court to decide but; Magistrates should be reminded that this is a Civil

not Criminal matter. Therefore burden on officer to prove health risk

condition is: Balance of probabilities

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Health Risk Condition

Same as Regulation 7 (2) except that need toprove “Imminent risk to health”

If any of the following involves an “ImminentRisk to Health” Use for the purposes of the business of any: Process or treatment

Construction of any premises Use of any equipment State or condition of any premises or equipment

Appropriate prohibition

Prohibition of: Use of process or treatment for the purpose of the business

Use of premises or equipment for purposes of the business or any other business of

same class or description. Use of premises or equipment for the purposes of any food business

Evidence

The court will need to be satisfied: That the health risk condition was satisfied At the time the HEPN was served

That the health risk condition still exists At the time of the hearing

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Gathering and handling Evidence Authorised officer should: Take detailed contemporaneous notes Photographs / video Samples Scrapings etc

Whilst rules of criminal evidence don’t apply These should be followed as best practice Ensure continuity, integrity and fairness of evidence

Preparing Evidence

Officer that signed HEPN should makeapplication to the court;

Statement should include: Details of Officer’s qualification/experience Definition of “imminent risk” Clear, precise details of conditions that led to

health risk condition being fulfilled. Use of process/treatment etc

Clear evidence of the Imminent risk to health. Evidence of proper service of notices. Details of current situation

Preparing Evidence

Statement may include: Hearsay Opinion evidence To a point (see Farrand v Tse)

Evidence of bad character It is a matter for the court to decide if they will

accept such evidence. Therefore ensure evidence is: Relevant Reliable

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Preparing evidence

Top tips1. Only include relevant evidence2. Be clear about imminent risk

1. Define term2. Identify elements of imminent risk3. Provide evidence on each element

3. Use headings

Case management

Consider Adjournment Length of hearing required District judge For complex cases Papers submitted in advance of hearing

Experts Schedule of agreements/disagreements

Presenting evidence

Similar process to criminal proceedings Use relevant witnesses:

Food examiner Public analyst CCDC

Ensure evidence covers: Reason for serving HEPN Current situation

Be prepared for evidence to be challenged.

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Issue of HEPO“As soon as practicable after the service of a hygiene emergency

prohibition notice, an authorised officer of an enforcementauthority shall affix a copy of the notice in a conspicuous positionon such premises used for the purposes of the food business ashe considers appropriate; and any person who knowinglycontravenes such a notice shall be guilty of an offence.”Reg 8 (5)

Should try to serve HEPO on food businessoperator in court

Place Order in appropriate place on premises

Lifting of HEPO“A hygiene emergency prohibition notice or a hygiene emergency

prohibition order shall cease to have effect on the issue by theenforcement authority of a certificate to the effect that they aresatisfied that the food business operator has taken sufficientmeasures to secure that the health risk condition is no longerfulfilled with respect to the food business.” Reg 8 (8)

Food Business Operator may request that HEPO is lifted. Enforcement Authority must:

issue a certificate within 3 days of being satisfied that health risk nolonger exists.

make decision within 14 days of application by Food BusinessOperator.

Give notice to food business operator if not issuing certificate “Notice of Continuing risk to health”

Questions?

Dr Andy Bowles FIFSTSpecialist food law solicitor

[email protected] 274486

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Authority: ………………………………………………………………………………………………………………………………

The Food Safety and Hygiene (England) Regulations 2013 –Regulation 8

HYGIENE EMERGENCY PROHIBITION NOTICE

Reference Number: ………………………………………………………

1. To:……………………………………………………………………………………………………………………………………(Food Business Operator)

At:……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………(Address of Food Business Operator)

2.* I am satisfied that the health risk condition is fulfilled with respect to:

……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………(Name of Food Business)

At:……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………(Address of Food Business)

Because:…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………(* See Note 1 overleaf)

YOU MUST NOT USE IT FOR THE PURPOSES OF [THIS] [ANY] [THIS OR ANY SIMILAR]† FOOD BUSINESS.

[† Officer to delete as appropriate]

Signed: ……………………………………………………………………………………………………………………………………………(Authorised Officer)

Name in capitals: ………………………………………………………………………………………………………………………………………………………………………

Date: ………………………………………………………………………………………………………………………………………………………………………………………………………

Address: …………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

Tel: …………………………………………………………………………………………………… Fax: ……………………………………………………………………………………

E-mail: …………………………………………………………………………………………

Please read the notes overleaf carefully. If you are not sure of your rights or theimplications of this notice, you may want to seek legal advice.

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The Food Safety and Hygiene (England) Regulations 2013 –Regulation 8

NOTICE OF INTENTION TO APPLY FOR HYGIENE EMERGENCY PROHIBITIONORDER

Reference Number: ………………………………………………………

1. To: …………………………………………………………………………………………………………………………………(Food Business Operator)

At:……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………(Address of Food Business Operator)

2. You are the food business operator of the food business at:

………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

3. I give notice that I shall be applying to the Magistrates' Court sitting

at ……………………………………………………………………………………………………………………………………………………………………………………………………………on:………………………………………………………………………(Date)*at:………………………………………………………………………(Time)*[*Officer to insert if known]

for a Hygiene Emergency Prohibition Order because:…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………[Officer to state reason why the order is being sought in respect of the premises, process,treatment or equipment]

4. If an order is made by the court you will not be able to use the [premises] [process][treatment] [equipment]† described:

……………………………………………………………………………………………………………………………………………………………………………………………………………………for the purpose of [this] [any] [this or any similar]† food business.

[† Officer to delete as appropriate]

Signed: ……………………………………………………………………………………………………………………………………………(Authorised Officer)

Name in capitals: ………………………………………………………………………………………………………………………………………………………………………

Date: ………………………………………………………………………………………………………………………………………………………………………………………………………

Address: …………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

Tel: ………………………………………………………………………………………………… Fax: ………………………………………………………………………………………E-mail: ……………………………………………………………………………………Authority: ………………………………………………………………………………………………………………………………

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The Food Safety and Hygiene (England) Regulations 2013 –Regulations 7 and 8

CERTIFICATE THAT THE HEALTH RISK CONDITION NO LONGER EXISTS

1. To: …………………………………………………………………………………………………………………………………(Food Business Operator)

At:……………………………………………………………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………(Address of Food Business Operator)

Name of food business …………………………………………………………………………………………………………………………………………………

Address of food business …………………………………………………………………………………………………………………………………………

……………………………………………………………………………………………………………………………………………………………………………………………………………

2. The enforcement authority certifies that it is satisfied that you have taken sufficientmeasures to secure that the health risk condition described in the:

Hygiene Prohibition Order*

Hygiene Emergency Prohibition Notice*

Hygiene Emergency Prohibition Order*

[* Officer to delete as appropriate]

served on you on …………………………………………………………………………… (date) is no longer fulfilled with respectto the food business.

Signed: ……………………………………………………………………………………………………………………………………………(Authorised Officer)

Name in capitals: ………………………………………………………………………………………………………………………………………………………………………

Date: ………………………………………………………………………………………………………………………………………………………………………………………………………

Address: …………………………………………………………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………………………………………………………………………………

Tel: …………………………………………………………………………………………………… Fax: ……………………………………………………………………………………

E-mail: ……………………………………………………………………………………………

THIS CERTIFICATE MEANS THAT YOU MAY NOW USE THE PREMISES, PROCESS, TREATMENT OR EQUIPMENTAGAIN.

Please read the notes overleaf carefully. If you are not sure of your rights or theimplications of this certificate, you may want to seek legal advice.

Authority: ………………………………………………………………………………………………………………………………

The Food Safety and Hygiene (England) Regulations 2013 –

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Regulations 7 and 8

NOTICE OF DETERMINATION THAT THE HEALTH RISK CONDITION REMAINSIN EXISTENCE

1. To: …………………………………………………………………………………………………………………………………(Food Business Operator)

At:……………………………………………………………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………(Address of Food Business Operator)

Name of food business …………………………………………………………………………………………………………………………………………………

Address of food business …………………………………………………………………………………………………………………………………………

2. The enforcement authority has determined that it is NOT satisfied that you have takensufficient measures to remove the health risk condition described in the:

Hygiene Prohibition Order*

Hygiene Emergency Prohibition Notice*

Hygiene Emergency Prohibition Order*

[* Officer to delete as appropriate]

served on you on …………………………………………………………………………… (date) and is satisfied that the healthrisk condition remains fulfilled with respect to the food business.

3. The enforcement authority is not satisfied because: …………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

Signed: ……………………………………………………………………………………………………………………………………………(Authorised Officer)

Name in capitals: ………………………………………………………………………………………………………………………………………………………………………

Date: ………………………………………………………………………………………………………………………………………………………………………………………………………

Address: …………………………………………………………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………………………………………………………………………………

Tel: …………………………………………………………………………………………………… Fax: ……………………………………………………………………………………

E-mail: ……………………………………………………………………………………………

THIS NOTICE MEANS THAT YOU MAY NOT USE THE PREMISES, PROCESS, TREATMENT OR EQUIPMENT UNTILTHE ENFORCEMENT AUTHORITY NOTIFIES THAT YOU MAY DO SO.

Please read the notes overleaf carefully. If you are not sure of your rights or theimplications of this notice, you may want to seek legal advice.

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Summary of health risk condition and appropriate prohibition

The Health Risk Condition is met if any of the following involvesthe risk of injury to health:

Regulation 7(2)

Appropriate Prohibition

Regulation 7(3)

The use for the purposes of the business of any process or treatment A prohibition on the use of the process or treatment for the purposesof the business.

The construction of any premises used for the purposes of the business,or the use for those purposes of any equipment

Prohibition on the use of the premises or equipment for the purposesof the business or any other food business of the same class ordescription.

The state or condition of any premises or equipment used for thepurposes of the business

Prohibition on the use of the premises or equipment for the purposesof any food business.

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SUMMARY OF HYGIENE EMERGENCY PROHIBITION PROCEDURE

(1) Premises (2) Equipment (3) Process

Establish imminent risk to healthFactors to consider

(1) (2) (3)Serious infestations Defective equipment Serious x contaminationPoor structural conditions contaminated equipment Poor temp controlSerious flooding Inadequate ccpsFood poisoning Inappropriate process

If any of the above criteria are met, consider service of HEPN. Make every effort to consult withanother authorised officer first.

Take detailed notes of conditions, food and evidence of imminent risk. Take photographs,samples etc and make sketches where appropriate.

Draft out HEPN

Serve on food business operator (FBO) or If food business operator not available,Copy to person in control every effort should be made to contact him.

Affix copy to premises/equipment

Serve “Notice of Intent” on FBO At least one day before application to Court.

Prepare schedule of works to remove Best practice to serve this onImminent risk. FBO asap

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Contact court to arrange application Application within 3 daysFor HEPO of HEPN service. One day after

Notice of intent.

Prepare detailed proof of evidence Can produce in S 9 format.

Monitor premises Ensure prohibition adhered to.

Revisit premises Gather evidence of existing conditions

Attend court to make applicationFor HEPO

Serve HEPO on FBO in court. Replace HEPNon premises with HEPO.

Monitor premises

On application by FBO, Make decision within 14 daysCertificate that no longer a health risk of application from FBOOr Notice of continuing risk. Issue cert within 3 days of being

Satisfied.

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