The Food Hygiene (Wales) Regulations 2006

PART 3 ADMINISTRATION AND ENFORCEMENT

Procurement of samples

12.  An authorised officer of an enforcement authority may—

(a)purchase a sample of any food, or any substance capable of being used in the preparation of food;

(b)take a sample of any food, or any such substance, which—

(i)appears to the officer to be intended for placing on the market or to have been placed on the market, for human consumption, or

(ii)is found by the officer on or in any premises which the officer is authorised to enter by or under regulation 14;

(c)take a sample from any food source, or a sample of any contact material, which is found by the officer on or in any such premises; and

(d)take a sample of any article or substance which is found by the officer on or in any such premises and which the officer has reason to believe may be required as evidence in proceedings under any of the provisions of these Regulations.

Analysis etc. of samples

13.—(1) An authorised officer of an enforcement authority who has procured a sample under regulation 12 must—

(a)if he or she considers that the sample should be analysed, submit it to be analysed—

(i)by the public analyst for the area in which the sample was procured, or

(ii)by the public analyst for the area which consists of or includes the area of the authority;

(b)if he or she considers that the sample should be examined, submit it to be examined by a food examiner.

(2) A person, other than such an officer, who has purchased any food, or any substance capable of being used in the preparation of food, may submit a sample of it—

(a)to be analysed by the public analyst for the area in which the purchase was made; or

(b)to be examined by a food examiner.

(3) If, in any case where a sample is proposed to be submitted for analysis under this regulation, the office of public analyst for the area in question is vacant, the sample must be submitted to the public analyst for some other area.

(4) If, in any case where a sample is proposed to be or is submitted for analysis or examination under this regulation, the food analyst or examiner determines that he or she is for any reason unable to perform the analysis or examination, the sample must be submitted or, as the case may be, sent by him or her to such other food analyst or examiner as he or she may determine.

(5) A food analyst or examiner must analyse or examine as soon as practicable any sample submitted or sent to him or her under this regulation, but may, except where—

(a)he or she is the public analyst for the area in question; and

(b)the sample is submitted to him or her for analysis by an authorised officer of an enforcement authority,

demand in advance the payment of such reasonable fee as he or she may require.

(6) Any food analyst or examiner who has analysed or examined a sample must give to the person by whom it was submitted a certificate specifying the result of the analysis or examination.

(7) Any certificate given by a food analyst or examiner under paragraph (6) must be signed by him or her, but the analysis or examination may be made by any person acting under his or her direction.

(8) In any proceedings under these Regulations, the production by one of the parties—

(a)of a document purporting to be a certificate given by a food analyst or examiner under paragraph (6); or

(b)of a document supplied to him or her by the other party as being a copy of such a certificate,

will be sufficient evidence of the facts stated in it unless, in a case falling within sub-paragraph (a), the other party requires that the food analyst or examiner be called as a witness.

(9) In this regulation where two or more public analysts are appointed for any area, any reference in this regulation to the public analyst for that area will be construed as a reference to either or any of them.

(10) The Food Safety (Sampling and Qualifications) Regulations 1990(1) apply in relation to a sample procured by an authorised officer of a food authority under regulation 12 as if it were a sample procured by an authorised officer under section 29 of the Act.

(11) The certificate given by a food analyst or examiner under paragraph (6) must be in the form set out in Schedule 3 to the Food Safety (Sampling and Qualifications) Regulations 1990.

Powers of entry

14.—(1) An authorised officer of a food authority will, on producing, if so required, some duly authenticated document showing his or her authority, have a right at all reasonable hours—

(a)to enter any premises within the authority’s area for the purpose of ascertaining whether there is or has been on the premises any contravention of the provisions of the Hygiene Regulations;

(b)to enter any premises, whether within or outside the authority’s area for the purpose of ascertaining whether there is on the premises any evidence of any such contravention within that area; and

(c)to enter any premises for the purpose of the performance by the authority of their functions under the Hygiene Regulations,

but admission to any premises used only as a private dwelling-house may not be demanded as of right unless 24 hours' notice of the intended entry has been given to the occupier.

(2) An authorised officer of the Agency will, on producing if so required some duly authenticated document showing his or her authority, have a right at all reasonable hours to enter any premises for the purpose of—

(a)ascertaining whether there is or has been on the premises any contravention of the provisions of the Hygiene Regulations;

(b)ascertaining whether there is on the premises any evidence of any such contravention; and

(c)the performance by the Agency of its functions under the Hygiene Regulations,

but admission to any premises used only as a private dwelling-house may not be demanded as of right unless 24 hours' notice of the intended entry has been given to the occupier.

(3) If a justice of the peace, on sworn information in writing, is satisfied that there is reasonable ground for entry onto any premises for any such purpose as is mentioned in paragraph (1) or (2) and either—

(a)that admission to the premises has been refused, or a refusal is apprehended, and that notice of the intention to apply for a warrant has been given to the occupier; or

(b)that an application for admission, or the giving of such a notice, would defeat the object of the entry, or that the case is one of urgency, or that the premises are unoccupied or the occupier is temporarily absent,

the justice may by warrant signed by him or her authorise the authorised officer to enter the premises, if need be by reasonable force.

(4) Every warrant granted under this regulation will continue in force for a period of one month.

(5) An authorised officer entering any premises by virtue of this regulation, or of a warrant issued under it, may take with him or her such other persons as he or she considers necessary, and on leaving any unoccupied premises which the officer has entered by virtue of such a warrant must leave them as effectively secured against unauthorised entry as that in which they were found.

(6) An authorised officer entering premises by virtue of this regulation, or of a warrant issued under it, may inspect any records (in whatever form they are held) relating to a food business and, where any such records are stored in any electronic form—

(a)may have access to, and inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records; and

(b)may require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford the officer such assistance as he or she may reasonably require.

(7) Any officer exercising any power conferred by paragraph (6) may—

(a)seize and detain any records which the officer has reason to believe may be required as evidence in proceedings under any of the provisions of these Regulations; and

(b)where the records are stored in any electronic form, require the records to be produced in a form in which they may be taken away.

(8) If any person who enters any premises by virtue of this regulation, or of a warrant issued under it, discloses to any person any information obtained by him or her on the premises with regard to any trade secret, he or she will, unless the disclosure was made in the performance of his or her duty, be guilty of an offence.

(9) Nothing in this regulation authorises any person, except with the permission of the local authority under the Animal Health Act 1981(2), to enter any premises—

(a)on which an animal or bird affected with any disease to which that Act applies is kept; and

(b)which is situated in a place declared under that Act to be infected with such a disease.

Obstruction etc. of officers

15.—(1) Any person who—

(a)intentionally obstructs any person acting in the execution of the Hygiene Regulations; or

(b)without reasonable cause, fails to give to any person acting in the execution of the Hygiene Regulations any assistance or information which that person may reasonably require of him or her for the performance of that person’s functions under the Hygiene Regulations,

will be guilty of an offence.

(2) Any person who, in purported compliance with any such requirement as is mentioned in sub-paragraph (b) of paragraph (1)—

(a)furnishes information which he or she knows to be false or misleading in a material particular; or

(b)recklessly furnishes information which is false or misleading in a material particular,

will be guilty of an offence.

(3) Nothing in sub-paragraph (b) of paragraph (1) is to be construed as requiring any person to answer any question or give any information if to do so might incriminate him or her.

Time limit for prosecutions

16.  No prosecution for an offence under these Regulations which is punishable under paragraph (2) of regulation 17 may be begun after the expiry of—

(a)three years from the commission of the offence; or

(b)one year from its discovery by the prosecutor,

whichever is the earlier.

Offences and penalties

17.—(1) Subject to paragraph (4), any person who contravenes or fails to comply with any of the specified Community provisions will be guilty of an offence.

(2) Subject to paragraph (3), a person guilty of an offence under these Regulations will be liable—

(a)on summary conviction to a fine not exceeding the statutory maximum; or

(b)on conviction on indictment to imprisonment for a term not exceeding two years, to a fine or to both.

(3) A person guilty of an offence under regulation 15 will be liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months or to both.

(4) A person will not be considered to have contravened or failed to comply with Article 4(2) of Regulation 852/2004 as read with paragraph 4 of Chapter IV of Annex II to that Regulation (bulk foodstuffs in liquid, granulate or powder form to be transported in receptacles and/or containers/tankers reserved for the transport of foodstuffs) provided the requirements of Schedule 3 are complied with.

Offences by bodies corporate

18.—(1) Where an offence under these Regulations which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a)any director, manager, secretary or other similar officer of the body corporate; or

(b)any person who was purporting to act in any such capacity,

he or she as well as the body corporate will be deemed to be guilty of that offence and will be liable to be proceeded against and punished accordingly.

(2) In sub-paragraph (a) of paragraph (1) “director”, in relation to any body corporate established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or undertaking, being a body corporate whose affairs are managed by its members, means a member of that body corporate.

Offences by Scottish partnerships

19.  Where an offence under these Regulations which has been committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, that partner, as well as the partnership will be deemed to be guilty of that offence and liable to be proceeded against and punished accordingly.

Right of appeal

20.—(1) Any person who is aggrieved by—

(a)a decision of an authorised officer of an enforcement authority to serve a hygiene improvement notice;

(b)a decision of an enforcement authority to refuse to issue a certificate under paragraph (6) of regulation 7 or paragraph (8) of regulation 8; or

(c)a decision of an authorised officer of an enforcement authority to serve a remedial action notice,

may appeal to a magistrates' court.

(2) The procedure on an appeal to a magistrates' court under paragraph (1) is by way of complaint for an order, and the Magistrates' Courts Act 1980(3) will apply to the proceedings.

(3) The period within which an appeal under paragraph (1) may be brought is—

(a)one month from the date on which notice of the decision was served on the person desiring to appeal; or

(b)in the case of an appeal against a decision to issue a hygiene improvement notice, the period specified in sub-paragraph (a) or, if it is shorter, the period specified in the notice pursuant to sub-paragraph (d) of paragraph (1) of regulation 6,

and the making of a complaint for an order will be deemed for the purposes of this paragraph to be the bringing of the appeal.

Appeals to Crown Court

21.  A person who is aggrieved by—

(a)the dismissal by a magistrates' court of an appeal to it under paragraph (1) of regulation 20; or

(b)any decision of such a court to make a hygiene prohibition order or a hygiene emergency prohibition order,

may appeal to the Crown Court.

Appeals against hygiene improvement notices and remedial action notices

22.—(1) On an appeal against a hygiene improvement notice or a remedial action notice, the court may cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the court may in the circumstances think fit.

(2) Where any period specified in a hygiene improvement notice pursuant to sub-paragraph (d) of paragraph (1) of regulation 6 would otherwise include any day on which an appeal against that notice is pending, that day will be excluded from that period.

(3) Any appeal will be regarded as pending for the purposes of paragraph (2) until it is finally disposed of, is withdrawn or is struck out for want of prosecution.

Application of section 9 of the Food Safety Act 1990

23.  Section 9 of the Act (inspection and seizure of suspected food)(4) applies for the purposes of these Regulations with the modification that it applies in relation to an authorised officer of an enforcement authority as it applies in relation to an authorised officer of a food authority.