APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lady Paton Lord Clarke	[2011] HCJAC 57 Appeal No: XJ95/11 OPINION OF THE COURT delivered by LORD EASSIE in Appeal under section 174 of the Criminal Procedure (Scotland) Act 1995 by BLUESHELL MUSSELS LTD Appellant; against PROCURATOR FISCAL, LERWICK Respondent: _______

Appellant: Summers QC; Mackinnons, Aberdeen

Respondent: Harper, solicitor-advocate AD; Crown Agent

12 April 2011

[1] This is an appeal under section 174 of the Criminal Procedure (Scotland) Act 1995 brought against a decision of the sheriff at Lerwick in which he rejected a challenge by the appellant to the competency of the two charges contained in the summary complaint upon which the procurator fiscal proceeds against the appellant.

[2] The first of those charges alleges that between 23 June 2009 and 14 July 2009 the appellant, being a food business operator, failed to comply with article 18(2) or with article 18(3) of Regulation (EC) No. 178/2002 in certain respects, the details of which it is unnecessary to rehearse. This failure is said to be contrary to "General Food Regulations 2004, Regulation 4(d), Food Safety Act 1990, Section 16(1) and European Communities Act 1972, Section 2(2)". The second charge on the complaint alleges a failure to ensure compliance with the requirements set out in article 3(1) of another European regulation, namely Regulation (EC) No. 853/2004, which failure is made a criminal offence by Regulation 17(1) of the Food Hygiene (Scotland) Regulations of 2006. At the start of the hearing of the appeal counsel for the appellant intimated that he conceded the competency of the second charge and did not insist in the appeal as respects that charge. It is thus not necessary to set out its details.

[3] Following the hearing of the appeal, confined thus to the competency of charge (1), we intimated our decision that the appeal should be refused but that we would provide in written form a short exposition of our reasons for reaching that decision. This we now do.

[4] Articles 18(2) and (3) of Regulation (EC) No 178/2002 provide as follows:

"2. Food and feed business operators shall be able to identify any person from whom they have been supplied with a food, a feed, a food-producing animal, or any substance intended to be, or expected to be, incorporated into a food or feed.

To this end, such operators shall have in place systems and procedures which allow for this information to be made available to the competent authorities on demand.

3. Food and feed business operators shall have in place systems and procedures to identify the other businesses to which their products have been supplied. This information shall be made available to the competent authorities on demand."

Being contained in an EC Regulation those articles are directly applicable in the member states. However, the manner in which member states ensure the enforcement of the standards laid down in that regulation is a matter left to them. The United Kingdom has made failure to comply with certain provisions of Regulation EC 178/2002 a criminal offence pursuant to regulation 4 of the General Food Regulations 2004 (SI 2004/3279) - "the GFR". That provision of the GFR states that a person who contravenes or fails to comply with certain provisions of Regulation (EC) 178/2002, which include those pertinent to this prosecution, namely articles 18(2) or (3), shall be guilty of an offence. Regulation 5(1)(b) of the GFR provides that a person guilty of an offence under regulation 4 (of the GFR) shall be liable on summary conviction "to a fine not exceeding the relevant amount or to imprisonment for a term not exceeding six months or to both." The phrase "the relevant amount" is defined in paragraph (2) of regulation 5 as being (in the circumstances of the present case) "the statutory maximum".

[5] The argument advanced by counsel for the appellant was directed to the validity of the combined effect of regulations 4 and 5 of the GFR, and hence to the competency of charge 1 on the complaint and was founded on the European Communities Act 1972 - "the 1972 Act" - and in particular the provisions of paragraph 1(1)(d) of Schedule 2 to the 1972 Act. As originally enacted those provisions read:

"1 - (1) The powers conferred by section 2(2) of this Act to make provision for the purposes mentioned in section 2(2)(a) and (b) shall not include power -

....

(d) to create any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than £400 (if not calculated on a daily basis) or with a fine of more than £5 a day."

In so far as relating to the limit on the maximum amount of a fine which might be imposed on summary conviction, those provisions have been altered by subsequent legislation which counsel accepted as resulting essentially in a substitution of "the statutory maximum" as respects the maximum fine imposable on summary prosecution of a criminal offence, if the criminal offence were to remain within the limit set by the paragraph in question. So, on the basis that the vires restrictions in paragraph 1(1)(d) of Schedule 2 to the 1972 Act applied to the powers exercised by the Secretary of State under regulations 4 and 5 of the GFR, the objection taken by counsel was that regulation 5 of the GFR enabled the imposition of both imprisonment and a fine whereas the cap, or limits, set by those provisions of Schedule 2 to the 1972 Act referred disjunctively to imprisonment or fine and did not allow the "or both" combination which is found in GFR regulation 5. Thus, it was argued, regulation 5 of the GFR was ultra vires by reason of its incompatibility with the restrictions on the making of penal provision by way of subordinate legislation to be found in Schedule 2 to the 1972 Act.

[6] The provisions of paragraph 1(1) of Schedule 2 to the 1972 Act are couched as restrictions on the powers conferred in section 2(2) of the 1972 Act. At the time at which the GFR were made, section 2 provided:

"2 - (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this sub-section applies.

(2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision -

(a) for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or

(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force of the operation from time to time of sub-section (1) above;

..."

[7] Counsel for the appellant took us to passages in the Hansard Report of the Committee Stage discussion in the House of Commons of the Bill which became the 1972 Act in order to illustrate the thinking behind the terms of the restriction on the ministerial power to create offences under section 2 of the 1972 Act which was set by paragraph 1(1) of Schedule 2 to the 1972 Act. In our view, even without that illustration, it is not difficult to divine the intention, in a situation in which the United Kingdom was faced with implementing the then acquis communautaire and prospective Community measures, that in the exercise of the very wide power to make subordinate legislation enabled under section 2, the executive should, as respects the creation of criminal offences, be kept on a short leash and not enabled to roam too far without express Parliamentary sanction. Counsel accepted, in our view rightly, that the terms of Schedule 2 to the 1972 Act did not debar the legislature from according the executive, by means of primary legislation in any given domain, wider powers than those circumscribed by paragraph 1 of Schedule 2 to the 1972 Act.

[8] That brings one to the Food Safety Act 1990 - "the 1990 Act" - to which charge 1 on the complaint refers. The complaint served upon the appellant invokes section 16(1) which provides:

"16. - Food safety and consumer protection

(1) The Secretary of State may by regulations make -

(a) provision for requiring, prohibiting or regulating the presence in food or food sources of any specified substance, or any substance of any specified class, and generally for regulating the composition of food;

(b) provision for securing that food is fit for human consumption and meets such microbiological standards (whether going to the fitness of the food or otherwise) as may be specified by or under the regulations;

(c) provision for requiring, prohibiting or regulating the use of any process or treatment in the preparation of food;

(d) provision for securing the observance of hygienic conditions and practices in connection with the carrying out of commercial operations with respect to food or food sources;

(e) provision for imposing requirements or prohibitions as to, or otherwise regulating, the labelling, marking, presenting or advertising of food, and the descriptions which may be applied to food; and

(f) such other provision with respect to food or food sources, including in particular provision for prohibiting or regulating the carrying out of commercial operations with respect to food or food sources, as appears to them to be necessary or expedient-

(i) for the purpose of securing that food complies with food safety requirements or in the interests of the public health; or

(ii) for the purpose of protecting or promoting the interests of consumers."

In the argument before the sheriff the procurator fiscal pointed to paragraph (f) of sub-section 16(1) as the power available to the Secretary of State to make regulations 4 and 5 of the GFR.

[9] Counsel for the appellant submitted that section 16 of the 1990 Act was not apt to enable the making of regulations 4 and 5 of the GFR, the power conferred by that section being concerned with the making of substantive domestic regulations. In his written submission, at paragraph 7, counsel writes:

"It is submitted that this is an error since section 16(1) is the authority for the creation of domestic Regulations. The section that ought to have been invoked is section 17 which is the section that enables the Secretary of State to make regulations 'called for by any Community obligation'".

[10] Section 17 of the 1990 Act is headed "Enforcement of Community Provisions". Sub-section (1) enables the Secretary of State to make provision by regulations for such provision with respect to, putting it very shortly, food safety matters as appear to him to be called for by "by any Community obligation". But more importantly for present purposes, sub-section (2) of section 17 provides:

"(2) As respects any directly applicable Community provision which relates to food, food sources or contact materials and for which, in his opinion, it is appropriate to provide under this Act, the Secretary of State may by regulations -

(a) make such provision as he considers necessary or expedient for the purpose of securing that the Community provision is administered, executed and enforced under this Act; and

(b) apply such of the provisions of this Act as may be specified in the regulations to the Community provision with such modifications, if any, as may be so specified."

[11] As counsel for the appellant of course agreed, article 18 of Regulation (EC) No. 178/2002 constitutes a "directly applicable Community provision"; and, equally he of course agreed that such a provision is one "which relates to food, food sources or contact materials". In our view it is therefore plain that the sanctioning of compliance with, among other articles, article 18 of Regulation (EC) No. 178/2002 by the penal provisions of regulations 4 and 5 of the GFR falls squarely within the terms of the power expressly conferred by section 17(2) of the 1990 Act.

[12] To that extent we agree with counsel that in framing the terms of charge 1 on the summary complaint the procurator fiscal's invocation of section 16(1) of the 1990 Act was erroneous and that the appropriate provision was section 17(2). We allowed a motion by the Advocate depute to amend charge 1 on the complaint so as to refer to section 17 of the 1990 Act.

[13] Against that examination of the 1990 Act, we turn to the GFR to see whether there is any provision within it which displaces the proposition that the source of the power deployed in the GFR to enforce compliance with article 18 of Regulation (EC) No 178/2002 by the criminal provisions of the GFR in issue was not section 17(2) of the 1990 Act but, instead, the wide general power conferred on a minister by section 2(2) of the 1972 Act.

[14] The preamble to the GFR does indeed refer to the power to make subordinate legislation created by section 2(2) of the 1972 Act. However, it does so in limited and express terms:

"...and, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to food (including drink) including the primary production of food, in exercise (as respects regulations 8 to 16 of the following Regulations) of the powers conferred by the said section 2(2)..."

Accordingly, section 2(2) of the 1972 Act is invoked only in respect of regulations 8 to 16 of the GFR (none of which involve the creation of any criminal offence). Consonant with that limited resort to section 2(2) of the 1972 Act, and the terms of the earlier discussion in this opinion, one finds in the same preamble, textually at an earlier point, express reference to among other sections of the 1990 Act, section 17(2). In our view, it is thus evident that the creation of the criminal sanctions to be found in regulations 4 and 5 of the GFR proceeds under the express parliamentary authority of section 17(2) of the 1990 Act.

[15] Recognising, while perhaps not wholly accepting, the force of those considerations, counsel for the appellant essayed a further argument. Since the penalty provisions in section 35(2) of the 1990 Act (the limitations on penalties being wholly consistent with the relevant limitations in the GFR) only applied to "an offence under this Act" and since the offence in question in the present case was created not by the 1990 Act itself but by regulations 4 and 5 of the GFR, the penalty limitations in section 35(2) did not apply. Therefore, it was said, the "cap" in paragraph 1(1)(d) of Schedule 2 to the 1972 Act applied.

[16] We are unable to accept that argument. Since, in our view, it is plain that the power to make subordinate legislation which is exercised in the making of regulations 4 and 5 of the GFR is the power conferred on the Secretary of State by section 17(2) of the 1990 Act, the "cap" on the exercise of powers under section 2(2) of the 1972 Act to be found in paragraph 1 of Schedule 2 does not apply. In making those regulations the Secretary of State is not exercising the general powers made available under section 2(2) of the 1972 Act but the domain specific powers under section 17(2) of the 1990 Act. The cap on the former does not apply to the latter. Further, while it is of course correct that section 35(2) talks of an "offence under this Act", it may, we think, readily be implied that in so far as use is made of the powers to make regulations conferred by the 1990 Act in order to create a criminal offence, the maximum penalties to be associated with such an offence are not to exceed the limits set out in section 35. The criminal offences created by regulations 4 and 5 of the GFR are accepted as being consistent with the provisions of section 35(2) of the 1990 Act.

[17] In these circumstances we concluded that the submission advanced by counsel for the appellant was unsound and that accordingly the appeal fell to be refused.