Written by James Claughton, 10th November 2023
What is a Hygiene Emergency Prohibition Notice?
Regulation 8 of The Food Safety and Hygiene (England) Regulations 2013 enables an Environmental Health Officer (‘the Officer’) to serve a Hygiene Emergency Prohibition Notice (‘a Notice’) on a Food Business Operator (‘the Operator’). A notice may be served on the Operator if the Officer considers that there are hygiene concerns that pose an imminent risk of injury to public health.
This means that the Officer intends to apply for a court order to stop the Operator from trading in any food-related activity immediately. The notice will set out the circumstances of the case and detail what the Operator is prohibited from doing. For those businesses with food as the primary operation it may well mean complete closure.
When will a notice be issued?
A notice will be served where the health risk condition is met, that is where an Officer has identified an imminent risk of injury to public health. The most common reasons for a notice being served includes where an Officer has identified pest infestations on the premises where food is prepared/handled. They may also be issued where there is evidence of poor cleaning practices, poor structural standards, and where there is a risk of food contamination or evidence of actual contamination.
What happens when a Hygiene Emergency Prohibition Notice is issued?
Once a Notice has been served the Officer must apply for a Hygiene Emergency Prohibition Order (‘an Order’) from the Magistrates’ Court. This application must be made within three days of service of a Notice; if no application is made for an Order, the Notice will lapse.
The Officer must notify the Operator of the application for an Order at least one day before the application. The application will ordinarily include a witness statement or report from the Officer, as well as, photographs or other material which supports their case for asserting that an imminent risk exists.
A hearing will then take place as soon as possible at the Magistrates’ Court to determine whether to issue an Order. The Operator can attend and/or be represented and will be entitled to make representations.
The Order will be issued if the magistrates are satisfied on the balance of probabilities that the health condition is met, and that requisite notice was given to the Operator.
If the Order is granted it should be posted in a clearly visible position on the premises so that members of the public are aware. If the Order is not granted, then the Operator may be entitled to compensation for any loss suffered as a consequence of complying with the original Notice.
It is worth noting that given that there is often a delay before a case is actually heard in the Magistrates’ Court, the Officer or Local Authority will continue to monitor the premises and will record any further issues or breaches of the Notice. Any delay may, however, also be used to good effect by the operator as the time can be used to make improvements and address the concerns raised and it is sometimes possible to avoid a hearing.
Consequences of breaching a Hygiene Emergency Prohibition Notice
Breaching the notice is an offence. A prosecution is likely to follow if the Officer finds evidence of the Notice being breached. Any individual who knowingly breaches a Notice could be fined and/or sent to prison for up to 2 years.
Removal of hygiene emergency prohibition notices and orders
A Food Operator may request that a Notice or Order be lifted although for obvious reasons there would be little merit in doing so until they have addressed the risks identified.
If an Officer receives a request, they need to make a decision within 14 days. Should the officer agree that the imminent risk of injury to health no longer exists, a Certificate of Satisfaction must be issued by the Officer within three days. A certificate is confirmation that the Officer is satisfied that that there is no longer an imminent risk of injury to health and all necessary steps have been taken by the Operator.
Appeal
In the event that an Order is made, Regulation 23 provides that there is a right of appeal to the Crown Court against the decision of the Magistrates’ Court. An Operator should consider their position carefully and seek appropriate legal advice and assistance before lodging an appeal. An unsuccessful appeal which is considered to be without merit, will inevitably lead to increased costs and further hardship for the Operator.
What should I do if served with a Hygiene Emergency Prohibition Notice?
As mentioned, the Notice will be displayed in the premises informing the public what has happened. It is, therefore, very likely that there will be financial and reputational consequences for any business not only immediately, if the business has to close, but also longer term.
A Notice may also give rise to significant remedial works to address the issues prior to removal of the prohibition allowing the premises to reopen but it is important to deal with the same as soon as possible to ensure that the impact is as short-lived as possible.
The serving of a notice will also often lead to a criminal investigation and a prosecution may follow, therefore it is important to not only act expeditiously but it is also sensible to seek legal advice at the earliest possible stage.
The team at Olliers are specialist criminal and regulatory lawyers. Please do not hesitate to get in touch for an initial discussion about your legal needs should you find yourself or your business subject to investigation or proceedings by the local authority or any other regulatory body.
