FOOD SAFETY ACT · 2012. 2. 10. · S21(1) requires the defendant to prove that he took all reasonable precautions AND exercised all due diligence. These are cumulative matters, not

HUMBER AUTHORITIESFOOD LIAISON GROUP

FOOD SAFETY ACT1990

Guidelines on the Statutory Defence of Due Diligence

FOREWORD

The aim of this document is to firstly explain the defence in S.21 of the FoodSafety Act which is known generally and hereafter as “due diligence.”Secondly, to give out some guidance on what a court is likely to require of adefendant seeking to use it in any proceedings. The document, however, hasno official standing as ultimately only the courts can interpret the law.

Much of the guidance provided is based upon judicial decisions in casesbrought under other consumer protection legislation having similar defences.What is apparent in all of these however is that each case is different and theoutcome may depend on its particular facts. Care should therefore be takenin using these guidelines and any person seeking to make use of the defenceshould take independent advice.

The sponsoring organisations accept no responsibility for the adequacy oraccuracy of the contents.

ACKNOWLEDGEMENTS

The original document entitled Guidelines on the Statutory Defence of Due Diligencewas prepared following discussion between the Institution of Environmental HealthOfficers, the Food and Drink Federation, the Local Authorities Co-ordinating Bodyon Food and Trading Standards (LACOTS), the National Consumer Council, theNational Farmers’ Union and the Retail Consortium.

P&S 770

FOOD SAFETY ACT 1990

THE ROLE OF THE HUMBER AUTHORITIESFOOD LIAISON GROUP

Enforcement of the Act in this region rests with the Humber Authoritiesconsisting of the Unitary Councils of North and North East LincolnshireCouncils, East Riding of Yorkshire Council and Kingston upon Hull CityCouncil.

The responsibility falls into two main areas. Trading Standards Officers dealwith food labelling, composition and most cases of chemical contaminationof food, whereas Environmental Health Officers deal with hygiene, themicrobiological contamination of food and food which is unfit for humanconsumption, including food which has been subject to chemicalcontamination.

In 1991 the Humber Authorities Food Liaison Group, made up of officersfrom the above-mentioned authorities, was formed with the following terms of reference:

(a) making arrangements for programmed inspections, especially in foodmanufacturing premises;

(b) arranging for co-ordinated advice on specific topics to be providedto businesses in the area;

(c) arranging for the transfer of any complaint and the associated sampleof food where that has been received at the offices of one foodauthority but is in fact the responsibility of the other;

(d) supplying information on the names and telephone numbers ofindividuals dealing with food law in his or her authority to anyother food authorities cover the same area;

(e) providing a channel for the resolution of any difficulties which mayarise;

(f) co-ordinating sampling programmes;

(g) recommending priorities for enforcement action;

(h) co-ordination on taking legal proceedings.

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CONTENTS

FOOD SAFETY ACT 1990 - INTRODUCTION 3

THE STATUTORY DEFENCE OF DUE DILIGENCE

PART 1 - THE LEGAL POSITION 4

PART 2 - GUIDELINES 6

APPENDIX 1

- A REVIEW OF APPEAL DECISIONS 15

APPENDIX 2

- CODES OF PRACTICE, ETC AND SOURCES OF OTHERINFORMATION 22

APPENDIX 3

- OFFICIAL FOOD CONTROL LABORATORIES 23

APPENDIX 4

- TRADING STANDARDS ANDENVIRONMENTAL HEALTH DEPARTMENTS 24

SOME USEFUL ADDRESSES 26

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FOOD SAFETY ACT 1990

INTRODUCTION

This report looks at three aspects of the defence of due diligence and howit affects those concerned with the production, processing, distribution andretailing of food in the United Kingdom.

First, most traders are law-abiding people, but may not be familiar with thedetail of the legislation itself. They need to know why the burden of proofin consumer protection law is different from that for the sort of crime theyread about in newspapers. The principles of the “absolute offence” areexplained.

Secondly, it reviews the way that courts deciding appeals have analysedwhat is meant by taking reasonable precautions and exercising due dili-gence in other consumer legislation: potential defendants need to knowhow this defence has been perceived by judges.

Finally, it outlines for farmers, growers, food processors, wholesalers,importers, distributors and retailers what system might satisfy a court thatall steps have been taken to avoid committing an offence.

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THE STATUTORY DEFENCE OF DUE DILIGENCE

PART 1 - THE LEGAL POSITION

The “absolute” offence

The general principle in criminal law is that the prosecution has the burdenof proving that the person accused of an offence was guilty beyond reason-able doubt. If a defendant pleads not guilty, the prosecution has to prove thatthe material facts in the case are true.

It is normally also necessary to show that the defendant had the intention ofbreaking the law (what is known as “mens rea”).

Despite the general rule, there are a number of offences created by variousstatutes which contain an absolute prohibition against doing something.These are known as “strict liability” offences. In such a case, it does not matter that the person accused did not intend to break the law. The mere factthat there is clear evidence that the particular statute has been contravened issufficient for a conviction to be inevitable. The Food Safety Act creates anumber of these offences.

This regime of strict liability can cause injustice if a person was held to havecommitted an offence for which he had no responsibility at all, or because ofan accident or some cause completely beyond his control. In order to createa balance of fairness in such cases, a defence is normally included in consumerprotection statutes which contain such offences. This has come to be knownas the “due diligence” defence and examples are contained in S24 TradeDescriptions Act 1968, (Consumer Protection Act 1961, Consumer SafetyAct 1978, both now repealed), S168 Consumer Credit Act 1974, S34 Weightsand Measures Act 1985, and S39 Consumer Protection Act 1987.

Enforcement authorities and those concerned in non-food distribution arefamiliar with the principles by which such a defence may be permissible. Eachof these Acts contains a “by-pass” provision so as to enable the real culprit tobe brought before the court even though a retailer was found in possessionof the offending goods.

Prior to the Food Safety Act, food legislation contained the so-called “warranty” defence. A person accused of an offence would escape convictionif he could prove that, when he bought the product, he obtained a writtenwarranty from his supplier that the product could be lawfully sold or dealtwith; that there was no reason to believe, when the offence was committed,

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that the true position was otherwise, and that the product was in the samestate as when he bought it. There was also a form of “due diligence” defencein S100 Food Act 1984 linked to the defence of an act of default of someother person.

The Food Safety Act has removed the specific “warranty” defence andreplaced it with an extended version of the “due diligence” defence. It alsocontains a “by-pass” provision.

The “new statutory defence

In S21 of the Food Safety Act, the new version of the “due diligence”defence is as follows:

“.....it shall.....be a defence for the person charged to prove that he took allreasonable precautions and exercised all due diligence to avoid the commis-sion of the offence by himself or by a person under his control.”

In addition, for traders who neither manufactured nor imported the food,accused of offences under S8 (selling food not complying with food safetyrequirements), S14 (selling food not of the nature or substance or qualitydemanded) or S15 (falsely describing or presenting food); the new statutorydefence shall be deemed to have established if they prove either sub-section(3) -

“(a) that the commission of the offence was due to an act or default ofanother person who was not under his control, or to reliance oninformation supplied by such a person;

(b) that he carried out all such checks of the food in question as werereasonable in all the circumstances, or that it was reasonable in all thecircumstances for him to rely on checks carried out by the personwho supplied the food to him; and

(c) that he he did not know and had no reason to suspect at the time ofthe commission of the alleged offence that his act or omission wouldamount to an offence under the relevant provision.”

OR, as contained in sub-section (4) -

“(a) that the commission of the offence was due to an act or default ofanother person who was not under his control, or to reliance oninformation supplied by such a person;

(b) that the sale or intended sale of which the alleged offence consistedwas not a sale or intended sale under his name or mark; and

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(c) that he did not know, and could not reasonably have been expectedto know, at the time of the commission of the alleged offence thathis act or omission would amount to an offence under the relevantprovision.”

S21(1) requires the defendant to prove that he took all reasonable precautions AND exercised all due diligence. These are cumulative matters,not alternatives. In any case, the courts will still have to consider whetherthe steps taken by the defendant for each element are sufficient to show taking of all reasonable precautions and the exercise of due diligence.

It is essential to realise that, for the statutory defence to be successful, theremust have been some positive action by the trader who hopes to rely uponit. He cannot simply sit back and do nothing and expect to be able toconvince a court that he has acted reasonably.

As previously stated, the defence has parallels with those in other consumerprotection legislation, but some of the features of the Food Safety Act - inparticular the “deemed” provisions outlined above - make the S21 defenceunique. Whilst therefore care needs to be taken when examining casesdecided under other statutes, these provide the most useful and authorita-tive guidance available of the way the new defence may be viewed. Some ofthe most important cases are included in Appendix 1 and an analysis ofthese enable certain basic principles to be established which provide thefoundation for the guidance in Part 2.

PART 2 - GUIDELINESIf there is a single consistent thread in the judgements of cases described inAppendix 1 it is that every case is different and each will be decided uponits own particular facts. It is important therefore not to rely too closely onany single decision but rather to extract any common features.

This part of the report outlines first some general points that apply univer-sally before going on to provide additional guidelines for particular sectorsof the food chain.

General

1. Sitting back and doing nothing can never enable a person to makeout the defence. Some positive steps will always be required.

2. Taking reasonable precautions involves the setting up of a system ofcontrol having regard to the nature of the risks involved, whilst duediligence involves securing the proper operations of that system.

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3. To be successful the defence requires all reasonable precautions tohave been taken and the exercise of all due diligence. The courts haveconsistently decided that where there was a reasonable precautionthat could have been taken but was not then the defence would notsucceed.

4. What is reasonable depends on the particular circumstances.Operating an inherently high risk process for example will requiregreater precautions than operating one which is by its nature safe.Similarly, what is reasonable for a large-scale food business may notbe so for a much smaller business.

5. The control system must cover all aspects of the operations of thebusiness which concerns compliance with legal requirements. Asystem which is adequate to control foreign bodies in food will notensure that compositional requirements are adhered to. It shouldspecifically address:

(a) Hygiene of both staff and premises(b) Raw materials - including packaging(c) Production(d) Recipe, specification, or compositional standards compliance(e) Packing and storage(f) Labelling and advertising(g) Staff training(h) Monitoring of customer complaints

Note: the above list is not meant to be exhaustive and each business must make their own assessment of the areas to be controlled.

6. The operation of the system must be kept under review and be amended as necessary.

Hazard Analysis and Quality Assurance

Point 5 above stressed the need to critically examine the nature of thebusiness being conducted to identify areas of risk, which can then be madesubject to suitable controls. This approach has been refined in a systemknown as HACCP - Hazard Analysis Critical Control Points - which isincreasingly being used in the food industry. The system involves theidentification and weighing of risks and matching these to appropriatecontrol measures. It is perhaps best suited to food manufacturing but theunderlying principle remains true for all in the food chain, in that thecontrol system should:

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(a) Identify main risk area(b) Adopt appropriate controls(c) Ensure the proper operation of these controls

Note: risk does not simply mean risk of food poisoning or contamination,but extends to cover the risk of any requirement, legal or otherwise, notbeing met.

Quality Assurance is another approach increasingly finding favour in thefood industry. It builds upon the technique of Hazard Analysis above andmay follow the guidance provided in British Standard BS 5750 (ISO 9000series). Whilst firms should have regard to this approach, it is important torealise that following Quality Assurance techniques will not necessarilyensure that the statutory defence can be made out.

Codes of Good PracticeIn addition to the many statutory requirements which have to be met, there are a number of published Codes of Practice of guidelines which containprinciples of good practice for the production of food, the processing offood products and for their treatment, storage, handling, distribution andlabelling. Many companies have their own internal codes. It will no doubtassist any farmer, processor or retailer faced with an investigation to shownot only that he knows of relevant Codes of Practice but follows them.(Appendix 2 to this report lists examples of relevant codes).

How far it will assist him in making out a defence will depend principallyon how appropriate, complete and authoritative that code is.

Written RecordsWhere a defendant seeks to make use of the statutory defence, the burdenlies upon him to prove on the balance of probabilities that he has taken allreasonable precautions and exercised all due diligence. It is essential there-fore that he has available written records of his system and controls to dothis. These will include not just “quality control” type records but willextend to invoices, specifications, correspondence, training schedules,cleaning regimes and any other documents which show that possible riskshave been addressed.

Moreover, in addition to the need to retain documents for evidentialreasons, it is an important part of any precautions that the defendant canshow that he has clearly defined the responsibilities of staff and importantinstructions to them are in writing.

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Records should be kept for a period which would have to have regard notonly for the anticipated life of the foodstuff, but to the timescale duringwhich proceedings could potentially be initiated and to the need to be ableto demonstrate continuity of compliance.

Note: the above are intended to be generally applicable and all sectors ofthe food chain should use them as the basis for comparing their own procedures with what it is expected a court would want to see. Somefurther guidance is provided below for particular sectors of the food chainwhich, it should be noted, is additional to and not in substitution for thatabove.

Even under the best systems, operational breaches may occur on occasions.Written records can help to identify where such breaches occur and act asa diagnostic device in monitoring whether the system is being operated asit should be. An important element is the keeping of a written record ofremedial action taken in response to such incidents.

Farmers and GrowersFor the first time the new Act extends food law to cover food sources whichare defined as “any growing crop or live animal, bird or fish from whichfood is intended to be derived (whether by harvesting, slaughtering, milking,collecting eggs or otherwise)” and empowers the Ministers to make regulations, e.g. “for securing the inspection of food sources.”

Farmers and growers of basic agricultural products must ensure that theycomply with rules governing the application of fertilisers, pesticides, veteri-nary medicines, etc. and that they can show that proper and effective stepsare taken to prevent any unsuitable food sources and food from enteringthe food chain. Since they may, according to the circumstances, be similarto small processors or retailers, farmers and growers must, in addition toensuring the wholesomeness of the products they produce, comply fullywith the rules governing their labelling and description.

They must also be able to show, for example that staff handling chemicalsare properly trained and qualified, that proper systems are in place toensure that chemicals are applied strictly in accordance both with the man-ufacturers’ instructions and with regard for the health and safety of thosewho will eventually eat the resulting food product.

Food ProcessorsMost food processors will be well aware of the responsibilities they have aspart of the food chain and the importance of having effective quality assur-ance systems. In addition to any criminal liability that may arise, producers

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of goods may be strictly liable to compensate consumers who suffer illnessor injury caused by their products. They must therefore develop andimplement systems of control which go to the heart of their managementand operations.

In particular they must ensure:

(a) that all relevant levels of management are aware of all relevant foodsafety, hygiene, composition, labelling and quality legislation, Codesof Practice, etc. which affect their business, and are kept informedabout changes in these requirements;

(b) that suitable information and guidance is available to all staff;

(c) that adequate supervision of staff, methods and machinery is in place.

(d) that all staff are appropriately qualified and trained;

(e) that all raw food and other ingredients are obtained from reliablesuppliers. When using a supplier for the first time, checks should bemade as to the way in which his business is run and that he conforms to all legal requirements;

(f) that they submit suppliers to periodic checks on their own systems,hygiene and quality control;

(g) that all machinery is inspected for cleanliness and works properly.

WholesalersWholesalers have been prone to prosecution for other consumer protectionoffences because they have tended to be responsible for the selection ofstock and the range of goods which are available to small retailers. In thecase of food wholesalers, the same considerations would apply as for largeretailers - see later. They may be able to rely on the statutory defenceand point to the act or default of their suppliers; and if they have notmanufactured or imported the food, the alternative “triple-factor” defencesin S.21(3) and (4) are available.

Importers and DistributorsIt may not be appreciated that importers are as much affected by the Act asthe more obvious trade sectors. Although their function may be limited tomaking administrative arrangements for food to be brought from abroadinto the United Kingdom, as the person responsible for the food until itreaches the manufacturer or retailer, an importer must ensure that hecomplies with all relevant safety, hygiene, composition, labelling andquality legislation in this country.

Note: that for the purpose of the defence the importer is regarded as a person who brings goods into Great Britain and not as an importer into theEuropean Community as in some other legislation.

Furthermore, the “deemed” provisions in sub-sections (3) and (4) of S.21are not available to an importer who would need to be able to establish the“all reasonable precautions and all due diligence” defence of sub-section (1).

Distributors and operators of warehouses must ensure that all storage premisescomply with relevant hygiene and safety requirements and in particular areadequately protected against risk of damage of contamination of foods bypests. Vehicles must be in a clean and hygienic state, properly maintainedand for chilled distribution all refrigeration equipment should be adequateto maintain product temperatures. Staff should be appropriately trained,including an understanding of the importance of maintaining the coldchain.

Small Scale Retailing

Small retailers (including farm shops) are only likely to be prosecuted wherethey themselves are responsible for any breach of food safety legislation -for example by operating dirty premises or applying misleading descrip-tions to foods.

In the case of branded pre-packed food, or other food which is unsafebefore it reaches the small retailer (e.g. a loaf with a piece of metal in it),the offence is not the responsibility of that retailer, though his shop may becited as the place of offence. So long as he uses reputable suppliers whomhe can identify by keeping proper records, proceedings would almost certainly be taken against the supplier or processor as the actual offender.

However, even the smallest food retailer must be able to show that he isaware of current legislative requirements for food safety, hygiene, composi-tion, labelling and quality and that he takes adequate and appropriate stepsto inform and train his staff - and to keep them up-to-date with relevantchanges.

Most Local Authorities are happy to provide free advice and assistance totheir local traders to help them understand and comply with legal require-ments and some even run training courses (though usually for a modest fee)in areas of particular interest. Making use of the considerable expertise oftheir Trading Standards Officers and Environmental Health Officers is thena sensible approach - but note that doing so does not in itself demonstrate“due diligence.”

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If, nonetheless, the retailer is prosecuted, then so long as he neithermanufactured nor imported the offending food, the alternative “triplefactor” defences in S.21(3) and (4) which enable it to be “deemed” that hehad shown due diligence will apply. It should be noted, however, that if aretailer changes the state of the food supplied to him, for example bybreaking down bulk foodstuffs and applying his own labelling, he may notbe able to rely on these provisions.

Larger Scale Retailing

Larger retailers must devise and operate systems in two directions. First,“downwards” through the company:

(a) they should ensure that all relevant levels of management are awareof all food safety, hygiene, composition, labelling and quality legis-lation, Codes of Practice, etc., which affect their business and are keptinformed about changes in these requirements;

(b) they must prepare information and guidance for all key staff atbuying, distribution and branch functions;

(c) they must operate a careful system for the selection of managers andsee that control is exercised throughout management to make surethat proper steps are taken to ensure compliance with the law;

(d) adequate supervision of systems must be provided at all levels, fromboard to area, district and to individual branches - especially in thehandling and packing of open food.

(e) training is a fundamental requirement and refresher courses areessential.

Secondly, “upwards” as far as their suppliers are concerned.

(a) they must be able to show that they use reliable suppliers who followaccepted Codes of Practice and have effective quality and quantitycontrol procedures.

(b) that they require suppliers to provide written confirmation that foodmeets the quality required, (a warranty). This should be as specificas possible as the courts have criticised “blanket” assurance.

For the sale of branded goods the above steps are likely to be sufficient,except perhaps where a large retailer is purchasing from a previouslyunused supplier or one outside the EC when they might require detailsto be provided of the suppliers’ own control systems or the results of anytesting.

Retailers’ Own Brand

Large food retailers sell many items under their own labels, although theproduction and processing may have been carried out by someone else. Theretailers may have considerable influence in the choice of raw materials,other ingredients, what standards are to be followed and the way the productis treated before their label is applied.

Many retailers, including those operating on a small scale (e.g. butchers,bakeries and delicatessens), engage in on-site processing activities. In thesecircumstances, they would also need to have regard to the section on foodprocessors.

All retailers of own-brand products must understand that the more theydictate their requirements to a processor the closer they are to being theperson responsible for the end-product. The further guidelines set outbelow will apply to own-brand retailers, who will not be able to avoid liability by simply pointing to their suppliers or processors.

In addition to the general points and the specific guidance relating to thesale of branded goods, “own-labellers” should also:

(a) ensure the product to be made for them is described in a detailedspecification which is not unlawful nor inconsistent with any compo-sitional standards or good manufacturing practice;

(b) satisfy themselves that the intended supplier is competent to produceand/or process the product as specified, that he complies with allrelevant legal requirements and that he operates systems of prod-uction control in accordance with good manufacturing or agriculturalpractice;

(c) from time to time make visits to suppliers wherever practical toverify point (b) or to receive the result of any other audit of thesuppliers’ systems for that purpose;

(d) devise a programme - having regard to the relative hazards of theproduct - for random samples to be taken for examination, testing oranalysis to check continuing compliance with specifications;

(e) to monitor any customer complaints about own-label products andto take necessary action when failures are so disclosed.

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Testing Samples - A Warning

In a number of cases, defendants had tried to show that as part of theirdiligence they had relied on sample testing by other people either in theUnited Kingdom or abroad. This was not attractive to the courts. Foreigncompanies operating abroad are beyond the risk of prosecution and socannot be punished for putting British consumers at risk. In such a case, it isalways advantageous for the UK importing company to institute its owntesting, though reliance on tests conducted by accredited laboratories, par-ticularly within the EC is likely to be regarded as satisfactory. See Hicks v.Sullam, Rotherham v. Raysun, Hurley v. Martinez.

Where in-house laboratories are used, steps should be taken to verify themethodology and accuracy of results either obtaining independent accredi-tation (e.g. under the NAMAS scheme), by conducting paired audit testswith other laboratories or by some other appropriate method.

Conclusions

In practically all the cases outlined in Appendix 1 of this report, the defendanthad either failed to do anything, or had tried to shift the burden onto some-one else. The cases show, time and again, that only positive action will satisfya court that a person knows and understands what is meant by taking allreasonable precautions and exercising all due diligence. It will mean thecontinuous assessment of risk and the allocation of resources to eliminatethem.

Having demonstrably sound systems will have two distinct advantages. First,higher standards of safety and hygiene mean that the risk of unsafe foodbeing supplied to the public by accident or neglect is kept to the minimumand will help build customer confidence. Secondly, the risk of prosecution isreduced to a minimum.

The larger the company the more important it is to demonstrate workablesystems of control, and of the selection and training of staff. Moreover, aconstant awareness of the need to take all possible steps to avoid breakingthe law is required.

For everyone engaged in the production, processing, distribution and retailingof food it cannot be over emphasised that concentration on hygiene, safetyand composition is a paramount consideration and one which will bescrutinised by the courts whenever the statutory defence of “due diligence” isset up.

APPENDIX 1A REVIEW OF APPEAL DECISIONS

1. A leading case on due diligence is the House of Lords’ decision in TescoSupermarkets Ltd. v. Nattrass (1972) AC 153. It was principally concernedwith the ability of a company charged under the Trade Description Act1968 to be able to rely on the “act or omission of another person” - in thatcase a shop manager, who had failed to supervise an assistant putting outpackets of washing powder marked with a higher price that that at whichthey were on offer. In the course of a long and detailed judgement, theHouse of Lords also had to decide whether Tesco had established “due dili-gence” by showing that it was one of their employees who had failed toobey the law and not the company itself. The House of Lords reversed theCourt of Appeal’s judgement and acquitted Tesco.

This decision has been widely criticised because it enables a company toavoid criminal liability for an offence committed by its local manager. It isarguable that public policy might consider it appropriate where an offenceindicates that there has been a failure of control by a company, that it isdesirable for the company to be prosecuted.

Lord Diplock said that what amounts to the taking of reasonable precau-tions and the exercise of due diligence “depends on all the circumstancesof the business carried on” a remark which was echoed by Lord Lane inGarret v. Boots Chemists Ltd (16th July 1980 unreported): “what might bereasonable for a large retailer might not be reasonable for the villageshop.”

Cases Involving Retailers2. Nonetheless, recognising lower standards for the smaller trader stillrequires them to do the maximum that can be expected of them, havingregard to their size and resources.

In Sherratt v. Gerrards the American jewellers (1970) 114 Sol Jo 147, thedefendants sold a “waterproof” watch which filled with water after anhour’s immersion in water. They claimed that, by relying on the reputationand experience of the wholesaler, they came within the defence. This wasrejected by the Divisional Court, who said that the defendants had takenno precautions; had they taken the elementary precaution of dipping onewatch in a bowl of water they would have avoided the offence.

3. In Sutton LBC v. Perry Sanger & Co. Ltd. (1971) JP Jo 239 the defendantswere dealers in dogs. They sold a dog as a “Sheltie” which was in fact across-breed. They were not experts in Shelties. They pleaded the defence by

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saying that they relied on the description given them by the supplier, anunsigned pedigree certificate and the fact that a vet had not queried that thedog was a Sheltie. The justices held that as the defendants were not experts,by relying on the information supplied, they had exercised due diligence.The Divisional Court rejected this view and said that the steps necessary toestablish both limbs of the defence were greater because they were dealersand inexpert. No precautions had been taken and no diligence exercised.

4. In Haringay LBC v. Piro Shoes the defendants sold shoes which thoughmarked “All Leather” were not entirely made of leather. Circulars weresent to the branch manager telling him to ensure that no shoes left the shopstill bearing the false label. A pair of shoes was sold and the word “All”crossed out at the till. The Divisional Court held that the company oughtto have told the manager to ensure that the false label was removed beforethe shoes were displayed because that was the time the offence was com-mitted.

5. In Unwin v. Toole (1976) Crim LR 583 (a case under the Weights andMeasures Act 1963), an employee of the defendant coal merchant wasstopped while carrying a sack of coke which was not labelled with the quantity as required by the Act. The sacks were normally checked eachmorning, but had not been on the day in question: employees wereinstructed to report missing labels.

Although the defendant convinced the magistrates that the statutorydefence was proved, the Divisional Court concluded that there was insuf-ficient evidence to justify such a conclusion. The defendants had not shownthat the label was missing because of an accident, nor that there was a proper system of regular checking.

6. In Garrett v. Boots Chemists Ltd. 16th July 1980 unreported, thedefendant retailers were charged with an offence under the Pencils andGraphic Instruments (Safety) Regulations 1974. They pleaded the statu-tory defence saying that they had informed their suppliers of the existenceof the regulations and made it a condition of their order that pencilsshould conform to the standard in the regulations. The magistrates heldthat to take random samples was unreasonable.

On appeal, the Divisional Court held that the defence failed. It was in thiscase that the Divisional Court distinguished large shops from small. Whatmight be reasonable for a large retailer might not be so for a village shop.One obvious precaution which a company as large as Boots could havetaken would be to have arranged for random sample, whether statisticallyconrolled or not. Failure to take random samples - whether or not theywould have detected the offending pencils - amounted to failure to take aprecaution which should reasonably have been taken.

Cases Involving Wholesalers

7. In Riley v. Webb (1987) 151 JP 372 (a case under the ConsumerProtection Act 1961 relating to the supply of “secretary sets” which con-travened the Pencil and Graphic Instruments (Safety) Regulations 1974) thedefendants were wholesalers of fancy goods and toys.

They sought to rely on the statutory defence. They produced evidence thattheir order forms contained a condition that orders were placed on theunderstanding that the goods conformed to any relevant statutory require-ments. They had dealt with the supplier for about 15 years; they had a staffof 50 and dealt in about 10,000 lines and satisfied the magistrates that itwould not have been reasonable for the defendants to have carried outrandom sampling.

The Divisional Court held that the defendants could have taken a simplestep to avoid their present trouble. They could have asked for a specificassurance about the goods in question; or they could have imposed contractterms by which their suppliers would have had to ensure that the Pencil andGraphic Instruments (Safety) Regulations had been complied with. Instead,nothing was done except for the imposition of the general condition and noassurance was sought that the particular safety regulations had been met.

8. The judgement is similar to an earlier one concerning the Toys (Safety)Regulations 1974, Taylor v. Lawrence Fraser (Bristol) Ltd. (1977) 121 SolJo 757. The defendant wholesalers supplied toys painted with a substancecontaining excess lead. Their defence was that the manufacturers had giventhem a written undertaking that the goods complied with regulations andthat local Trading Standards Officers had been invited to take samples at anytime for analysis. The Divisional Court held that there was no effectivedefence. The defendants could have had the paint analysed and they couldnot evade liability by passing responsibility onto the enforcement authorities.

Cases Involving Importers

9. In two other cases, importers were convicted despite attempts to provethat they met the statutory defence. In Hicks v. Sullam Ltd. the defence weresuppliers of light bulbs to British Home Stores. A false trade description wasapplied to a defective light bulb. The defendants had imported 110,000 lightbulbs from the Far East. They tested none of those supplied to British HomeStores; had no sampling procedure for safety tests and no independent testreports were obtained which might have revealed the serious fault. All thedefendants did was employ two firms in Taiwan and Hong Kong to checkbulbs; this had been satisfactory in the past. Since the defect had arisen, thedefendants had set up a sampling system.

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The magistrates held that all reasonable precautions had been exercised andthat the company was entitled to rely on the assurances of its agents. Onappeal the Divisional Court rejected the defence. The lack of a random sam-pling system and the absence of any independent expert examination in theUK showed that no precautions were being taken. Reliance on foreignchecking was insufficient.

10. A similar view was taken in Rotherham MBC v. Rayson (UK) Ltd. (1988)BTLC 292. Importers of Far East goods supplied a packet of crayonsbearing a false trade description (“poisonless”) and which contravened thePencils and Graphic Instruments (Safety) Regulations 1974.

The defendant, through its agents, had given the manufacturers details of theUK legal requirements, anticipating that only adverse reports would be sentto them. None had been received. The crayons were imported in a singleannual batch of between 7,000 to 10,000 dozen packets of 12 crayons. Fromone batch, one packet was randomly chosen for analysis. The sample hadbeen reported as satisfactory. The magistrates found that the defence hadbeen complied with. The Divisional Court rejected this view. The method ofreporting back only adverse analysis through agents did not prove that suchtests were taking place. Sampling in the UK of one packet out of such a largeconsignment was found to be insufficient. The court followed the view inRiley v. Webb that telling a manufacturer to follow general requirements didnot ensure compliance with the defence.

11. These cases need to be compared with the more recent decision of theDivisional Court in Hurley v. Martinez and Co. Ltd. (1990) TLR 31st March1990. In this case the defendants were not only directly the importers, buthad arranged to import German wine through an agent. The wine wasfound to be deficient of the stated alcohol content and the defendants werecharged under the Trade Descriptions Act. They had neither tested the winenor had sight of German governmental tests and had simply relied upon thereputation of their agent, the producer and the German wine regulatoryauthorities. The Court accepted that the Magistrates were entitled to findthe defence of due diligence made out in these circumstances. This caseillustrates therefore that whilst “sitting back and doing nothing” will beinsufficient, the nature of the more positive steps could in some cases befairly small.

Cases Involving Retailers

12. Two other cases involving the application of false trade descriptions are ofinterest. In Kinchin v. Haines (1979) Crim LR 329 a coal merchant was pros-ecuted for selling coal underweight (there was a deficiency of nearly 1.25 cwt

in 1.5 tons of coal). The defendant had loaded his lorry with sacks whichhad been exposed to heavy rain. He knew that as the moisture evaporated,the weight would decrease. It was argued that he could only provide for lossby over-weighing. The Divisional Court held that he should have tried toobtain the correct weight and that to do nothing could never amount to“taking precautions.”

Similarly in Barker v. Hargreaves (1980) 125 Sol Jo 165 a dealer sold a cardescribed as in “good condition throughout” although it had corroded floorpanels hidden by undersealing and by the battery. The defendant hadobtained an MOT and relied on the standard wording on the MOT certificate“a test certificate should not be accepted as evidence of the satisfactorymechanical condition of a used vehicle offered for sale.”

The Divisional Court upheld the defendant’s conviction. There was nosystem for checking the condition of used cars and by merely referring to thedisclaimer on the MOT certificate he had neither taken any precautions atall nor exercised any diligence.

13. As indicated earlier, the courts continued to emphasise that each casedepends on its own facts. An example of what one bench of magistrateslooked for when deciding whether the defence is made out was reported inBaxters (Butchers) v. Manley (1985) 4 Tr L 219. The defendants wereconvicted of various offences involving short weight and mis-pricing whichwere due to the act or default of their shop manager. The company soughtto rely on the statutory defence. The bench rejected this claim for thefollowing reasons:

(a) the company did not establish that it had taken positive precautionsto avoid an offence; their meat checking and record system was onlyintroduce after the offence in question;

(b) no regular checks were made by the district manager and supervisionwas inadequate;

(c) although new rules were sent to shops, no instructions or guidelineswere given to managers;

(d) the shop manager only made two visits to the company’s residentialtraining school; this was insufficient for his position within thecompany; refresher courses were seldom used.

Following conviction, the defendants appealed but the Divisional Courtupheld the conviction on the basis that the magistrates were entitled to findas they did.

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Successful Use of Statutory Defence

14. This contrasts with Westminster City Council v. Turner Gow (1984) 4 TrL 130 where coal merchants were charged with short-weight offences. Thesehad been due to the act of their driver who was convicted. The companyrelied on the statutory defence and was acquitted. The prosecutorappealed. The Divisonal Court held that the company had displayed suffi-cient diligence. They had prepared written instructions for all drivers; a copywas displayed in the weighbridge office, another given to each driver.

The driver in question admitted that he had deliberately disobeyed clearorders which he knew. There was a system of checking at the weighbridge andthis infringement only occurred two months after the notice was firstdisplayed. The defence was successful.

15. There have been large numbers of cases relating to false odometer(mileometer) readings on used cars. Most relate to the way in which a dealerhas tried to avoid conviction by the use of so-called disclaimers. One case isrelevant to this report because it concluded that following a generallyrecognised and authoritative Code of Practice could help establish thatdue diligence had been exercised.

In Lewin v. Rothersthorpe Road Garage Limited (1984) 3 Tr IL 134 a usedcar salesman had applied a false trade description relating to the odometer;the company relied on the statutory defence and satisfied the magistrate onthree points:

(a) they had adopted the Motor Agents’ Assocation Code of Practicedrawn up in consultation with the Office of Fair Trading;

(b) they had instructed their salesmen in the operation of the Code ofPractice;

(c) that instruction was reinforced by regular meetings of salesmen wherethe importance of observing the Code was emphasised.

16. Finally, there is some guidance as to what happens when normally reliablemachinery fails to do its job properly. In Bibby-Cheshire v . Golden Wonder(1972) 1 WLT 1487 a manufacturer was prosecuted for selling short weightcrisps but satisfied the court that the statutory defence was made out byshowing:

(a) that the bags of crisps were filled by machines; that they used the bestavailable machines, but that none was sufficiently accurate to produce no underweight bags;

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(b) that it was economically impossible to weigh individually 20 millionbags a week;

(c) that there was an efficient system of random checking which ensuredthat no machine consistently produced underweight bags.

Footnotes:

(i) The above cases are by no means a complete list of court decisions ondue diligence. Care must be taken when looking at at cases indiv-idually as the courts have consistently stated that the decision reached is based on the particular facts before it.

(ii) Although most of the above cases have been decided on non-foodmatters, insofar as they establish general principles, they are likely tobe relevant to the interpretation of the Food Safety Act defence.

(iii) Attention is also drawn to the absence of any European Court /European Commission decisions on due diligence. This is particularlyimportant in the context of the completion of the Internal Marketand the free movement of foodstuffs.

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APPENDIX 2CODES OF PRACTICE ETC. AND

SOURCES OF FURTHER INFORMATION

1. Quality Systems

* Standard Number: BS EN 30011-1:1993 (ISO 10011-1:1990)* BS Handbook 22 - 1987* International Standards Organisation ISO 9000 Series* Quality Systems for the Food and Drink Industries* Guidelines for the use of BS 5750 (Leatherhead Food RA)

2. Hazard Analysis

* Guidelines for the Establishment of HACCP* Technical Manual 19 - 1987 (Campden FPRA)

3. Manufacturing

* Good Manufacturing Practice - A guide to its responsiblemanagement (IFST)

4. Agriculture

* Code of Practice for the Safe Use of Pesticides on Farms andHoldings (MAFF / HSE / FSA)

5. Hygiene

* Clean Food - A food handlers guide (Department of Health)* Food Safety - A guide from HM Government (Food Sense)* The Food Hygiene Handbook (IEHO)

6. Health and Safety

* Health and Safety in Kitchens and Other Food PreparationAreas, HS(G)55 - 1990

* Catering Safety - Food preparation machinery HS(G)35* Safety in Meat Preparation - guidance for butchers HS(G)45

(HSE)

7. Training

* Safe Food Handling - A training guide for managers of food service establishments - 1989 (WHO)

APPENDIX 3OFFICIAL FOOD CONTROL LABORATORIES

IN THE YORKSHIRE AND HUMBERSIDE REGION

1. ANALYSIS

Humber Authorities Scientific Services West Yorkshire Analytical Services184 High Street P.O. Box 11Kingston upon Hull Nepshaw Lane SouthHU1 1NE Morley Leeds

Telephone: 01482 327847 Telephone: 0113 383 7550Fax: 01482 223251 Fax: 0113 383 7551

A. H. Allen and Partners342 Coleford RoadSheffieldS9 5PH

Telephone: 0114 243 1061Fax: 0114 244 8432

2. MICROBIOLOGICAL EXAMINATION

Public Health Laboratory Public Health LaboratoryHull Royal Infirmary Bridal PathAnlaby Road York RoadKingston upon Hull LeedsHU3 2JZ Ls15 7TR

Telephone: 01482 323046 Telephone: 0113 264 5011Fax: 01482 212655 Fax: 0113 260 3655

Public Health LaboratoryHermes RoadSheffieldS5 7BQ

Telephone: 0114 271 4777Fax: 0114 242 1385

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APPENDIX 4TRADING STANDARDS AND

ENVIRONMENTAL HEALTH DEPARTMENTS

ADDRESS TEL. NO.

East Riding of Yorkshire Council (01482) 887700Public Protection,County Hall,Beverley,HU17 9BA.

N. E. Lincs Trading Standards (01472) 324800King Edward Street,Grimsby,DN31 3LU.

Kingston upon Hull City Council (01482) 615552Public Protection Department,33 Witham,Kingston upon Hull,HU9 1DB.

North Lincs Trading Standards (01724) 297664P.O. Box 42,Church Square House,High Street East,Scunthorpe, N. Lincs.DN15 6XQ.

North East Lincs Environmental Health (01472) 324770Freeman Way,Grimsby,DN32 7AU.

SOME USEFUL ADDRESSES

BSIBritish Standards Institution, 389 Chiswick Road, London, W4 4AL.Tel: 0208 996 9600.

CAMPDENCampden and Chorleywood Food Research Assocation, Chipping Camden,Gloucestershire, GL55 6LD. Tel: 01386 842000.

DAFSDepartment of Agriculture and Fisheries for Scotland, Pentland House,Robb’s Loan, Edinburgh, EH14 1TW. Tel: 0131 556 8400.

DoHDepartment of Health, Public Enquiry Office, Richmond House,79 Whitehall, London, SW1A 2NL Tel: 020 7210 4850.

FDFFood and Drink Federation, 6 Catherine Street, London, WC2B 5JJ.Tel: 0207 836 2460.

FOOD RALeatherhead Food Research Association, Randalls Road, Leatherhead,Surrey, KT22 7RY. Tel: 01372 376761.

HSEHealth and Safety Executive, Rose Court, 2 Southwark Bridge,London, SE1 9HS. Tel: 0207 717 6000.

IEHOInstitution of Environmental Health Officers, Chadwick Court,5 Hatfield, London, SE1 8DJ. Tel: 0207 928 6006.

IFSTInstitute of Food Science and Technology, 5 Cambridge Court, 210 Shepherds Bush Road, London, W6 7NJ. Tel: 020 7603 6316.

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ITSAInstitute of Trading Standards Administration, 3/5 Hadleigh Business Centre,351 London Road, Hadleigh, Essex, SS7 2BT. Tel: 01702 559922.

LACOTSLocal Authorities Co-ordinating Body on food and Trading Standards,10 Albert Embankment, London SE1 7SP. Tel: 0207 840 7200.

MAFFMinistry of Agriculture, Fisheries and Food, Ergon House, c/o Nobel House,17 Smith Square, London, SW1P 3JR. Tel: 0345 573012,

NCCNational Consumer Council, 20 Grosvenor Gardens, London, SW1W 0DH.Tel: 020 7730 3469.

NFUNational Farmers’ Union, 164 Shafesbury Avenue, London, WC2H 8HL.Tel: 0207 331 7200.

RETAIL CONSORTIUMBritish Retail Consortium, 5 Grafton Street, London, W1X 3LB.Tel: 0207 6071500.

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The Yorkshire and Humber Regional Food TechnopoleTelephone: (01472) 500350

“linking business needs with technical solutions”

Yorkshire and the Humber encompasses this country’s most prolific foodproduction and processing region. Some 3,500 regional food businesses(not including agricultural) employ 54,000 people in all parts of the foodchain from “gate to plate.” This is 16% of the country’s total “food work-force.” But the region is facing strong competition both in the UK andEurope; ranking five in terms of European competitiveness. It needs to bothdefend its existing base whilst attacking new markets.

Made possible through substantial MAFF and European RegionalDevelopment Funding, the Food Technopole aims to assist businesses in theYorkshire and Humber region by supporting the:

* stimulation of innovation and international competitiveness;

* achievement of profitable growth through inward investment;

* collective servicing of home and export markets;

* maintenance of effective and sustainable links between manufacturers,their customers, innovators and suppliers, facilitated by technical service providers.

The Yorkshire and Humber Regional Food Technopole has been set up tolink the needs of the 3,500 food manufacturing sector concerns in its clientdatabase with one or more of its 1,200 service-provider partners with estab-lished expertise in aspects of technology and commerce. Funding will beavailable, from MAFF (ex-Objective 5b) and ERDF (ex-Objective 2) to support up to 70% of the total identified costs for individual projects.

The Food Technopole assists regional food manufacturers in the areas of:

* food health quality systems

* process and product development

* hygienic design and organisation

* manufacturing efficiency

* environmental impact management

* staff development

- which have been the areas designated as paramount in the Regional Innovation Strategy to improve the competitiveness of the local food industry.