Food Hygiene - challenging a prosecution

A very recent case in relation to a food hygene prosecution has recently been in the High Court.  It centred on the questions of abuse of process and the policy of when to prosecute.  It was not a case in which we were involved.

The High Court was given three questions to determine as follows:

1. whether the operator being prosecuted could challenge the decision to prosecute otherwise than through an abuse of process application;
2. whether the Local Authority had failed to have regard to its enforcement policy in deciding to prosecute; and
3. whether the operator had to show there had been oppression.

The High Court found on each as follows;

First the Magistrates' Court had no power of review of a prosecutorial decision other than through an abuse of process application. A challenge to a decision to prosecute had to always be made in the criminal proceedings unless there was some reason why it could not be. An abuse of process application in the magistrates' court was itself an exceptional remedy, and it was only in the very rare circumstances where that was not possible that there could be an application to the instant court.

Secondly the local authority's enforcement policy set out what their Code of Practice described as a "hierarchy" of enforcement measures. It had followed that hierarchy and fully complied with its policy. A warning had been given and an opportunity to clean the premises. The operator had failed to clean them to an acceptable standard and had desisted from voluntarily closing the premises to do so. They had been given sufficient time. Given the grave risks to health that could arise from a kitchen in the state found, the enforcing officer was entitled to consider that there had been a serious breach of the Regulations that an informal warning had failed to remedy. There was strong evidence of a serious breach of the Regulations which justified prosecution.

Third and finally the court held that proof of oppression was essential if an abuse of process application was to succeed.  Where a policy had been considered but wrongly applied, oppression above and beyond the ordinary consequences of initiating a prosecution would have to be shown.

Save in an exceptional case, decisions to prosecute were for the prosecutor. The task of a criminal court was to determine whether the prosecution had proved its case on the merits. Such matters as an operator might establish about the way in which it conducted its premises and the attempts it made to clean them constituted mitigation.

Rather unusually the Court apparently suggested that it was far from helpful to the operator that its solicitors had engaged in lengthy correspondence aimed at finding fault with the decision to prosecute instead of defending the case on the merits. Justice in the magistrates' court was meant to follow a fair, swift summary procedure and diversions such as those achieved by the operator’s solicitors were to be strongly discouraged as inimical to the proper administration of justice.

R (on the application of BARONS PUB CO LTD) (Claimant) v STAINES MAGISTRATES' COURT (Defendant) & RUNNYMEDE BOROUGH COUNCIL (Interested party) & DIRECTOR OF PUBLIC PROSECUTIONS (Intervener) [2013] EWHC 898 (Admin)