Hygiene Prohibition Procedures Prohibition Overview Hygiene Emergency Prohibition If Authorised Officer

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  • Hygiene Prohibition Procedures

    A webinar presented by:

    Dr Andy Bowles

    Attendee Notes

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    Hygiene Prohibition Procedures

    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)

    Overview Prohibition 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 1 Offence Category

    Step 2 Starting point/Category

    range

    Step 3 Financial element

    Step 4 Relevant factorsStep 5

    Reduction for guilty

    plea

    Step 6 Compensation

    and Orders

    Step 7 Totality

    Step 8 Reasons

    Step 9 Bail

    allowance

    Application of Guidelines

    Individuals

    Prohibition Orders “If -

    (a) a food business operator is convicted of an offence under these Regulations; and (b) the court by or before which he is so convicted is satisfied that the health risk condition is fulfilled with respect to the food business concerned, the court shall by an order impose the appropriate 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 the following involves a “Risk to Health”

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

     Construction of any premises used for business or 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 and appropriate prohibition

    The Health Risk Condition is met if any of the following involves the 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 purposes of 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 purposes of the business or any other food business of the same class or description.

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

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

    Prohibition of Persons “If —

    (a) a food business operator is convicted of an offence under these Regulations; and (b) the court by or before which he is so convicted thinks it proper to do so in all the circumstances of the case, the court may, by an order, impose a prohibition on the food business operator participating in the management of any food business, or any food business of a class or description 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 Emergency Prohibition

    Overview Hygiene 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 Prohibition Notice (HEPN)

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

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    Overview

     Application must then be made to Magistrates Court, 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 of intention to apply for HEPO

    Day 2 Day 3

    • Application for 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 is satisfied that the health risk condition is fulfilled with respect to any food business he may by a notice served on the relevant food business operator (in these Regulations referred to as a “hygiene emergency prohibition notice”) impose the appropriate prohibition. Reg 8(1)

     Key terms:  Authorised Officer  Satisfied  Health risk condition  Appropriate prohibition

    Satisfied

     The officer should have made reasonable enquiry 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 Practice 7.2.4.1 When to use HEPNs

     very poor structural condition and poor equipment and/or

     poor maintenance or routine cleaning and/or serious accumulations of refuse, filth or other extraneous matter, resulting in the actual contamination of food or a significant risk of food contamination

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    Food Law Code of Practice 7.2.4.2 Health risk conditions

     Health risk conditions where prohibition of a process 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 which it 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 Closure Food 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