Legal action and enforcement

Monday 21 November 2005

During routine imported food and feed control work there are a number of enforcement actions that a local authority may take. These are detailed below with options available to importers of food and feed from outside the European Union into the United Kingdom who are not content with actions taken or service provided by local authority enforcement officers at points of entry.

Formal request for information
Authorised officers have legal powers under a number of pieces of legislation to require further information from importers, agents or others connected to the import of food and feed. You may be committing an offence if you do not supply the information requested or otherwise obstruct authorised officers from carrying out their duties.

• Redress: You may complain to the local authority and if the authority does not resolve your concerns you may complain to the Ombudsman.

Detention of goods
Authorised officers have powers under legislation to formally detain imported foods or feeds for a specified period to enable them to carry out investigations and/or examine the products. If they exercise these powers they should inform you and/or your appointed agent in writing. In some cases this will be in the form of a formal legal notice. The document will usually be posted or handed to the relevant people. The document will usually contain details of the items detained, why they are being detained, where they are being detained and will sometimes show a maximum time limit for which they are to be detained. In some cases you are entitled to appeal against detention of the goods. Information on how to appeal should be provided to you with the notice if this is the case. You should not remove your goods in breach of any notice until the goods are released or your appeal has been heard in Court and the Court has decided to overrule the detention.

• Redress: You may complain to the local authority and if the authority does not resolve your concerns you may complain to the Ombudsman. Most (but not all) Legal Notices will offer a right of appeal, this will normally be to a Magistrate or in Scotland the Sheriff.

Sampling/Analysis of Goods
Authorised officers have powers under legislation to take samples of imported foods and feeds in order to determine compliance with legal requirements. Sometimes quite large quantities of food or feed will be taken to ensure that the sample taken is representative of the whole load, however the officer should always provide a receipt or notification of the samples taken. The samples may be subject to a number of tests and/or observations, including laboratory analysis. These may include checks on labelling, ingredients, microbiological contaminants (checks for bacteria, viruses etc.), chemical contaminants, moulds, fungus, physical contaminants and banned antibiotics. This list is not exhaustive and tests carried out are usually required by legislation, carried out for surveillance purposes, carried out because of risks associated with the type of product or at the discretion of the officer. In many cases the costs of these tests will be passed on to the importer of the products. In normal circumstances you are not entitled to payment or compensation for samples taken, but you may be able to collect unused/untested verification samples in some situations. If you wish to collect unused samples please contact the authorised officer as soon as possible otherwise these samples may be disposed of by the authority. Sampling should be carried out in accordance with legislation, guidance and/or advice available to enforcement officers. This will help them decide what samples to take and in what quantity. Sampling should be carried out in a way that avoids contamination of the sample or the rest of the product and should endeavour to preserve commercial value of the goods as far as is possible.

• Redress: If you are concerned about sampling carried out on your consignments you should discuss this with the enforcement officer, who should explain what has happened and why it was done. You may complain to the local authority and if the authority does not resolve your concerns you may complain to the Ombudsman.

Voluntary Surrender of Goods
In some circumstances it is possible for you to voluntarily surrender contaminated foods or feed to the local authority who should issue you with a receipt which may be used for insurance purposes. This procedure should be arranged in consultation with the relevant enforcement officer and is usually a chargeable service. You should not be pressured into voluntary surrender. If you choose not to surrender goods, the officer may take enforcement action dependent on the circumstance.

• Redress: It is your decision to voluntarily surrender goods. If you choose to use this service of a local authority they may charge for the work.

Rejection/Destruction of Goods
In some cases where the authorised officer believes that the imported food or feed does not comply with relevant regulations, they will prevent the goods from being imported. Usually you will be asked to either destroy or re-export the goods outside the EU. It is possible that the enforcement officer will give you a choice to decide between these options and exceptionally they may offer further options. These may include allowing import of the goods on the basis that the consignment will be for animal feed use only or is to be rendered to meet animal feed use standards. The options given will normally be based on legal rules, guidance and the judgement of the enforcement officer regarding the risk posed by the product. If goods are rejected you should receive a formal legal notice that requires you to do certain things e.g. destroy the goods by incineration within a certain time limit. You should not ignore the requirements of such a notice as you may commit an offence if you don't comply with it.

If you are unsure of what you need to do then please contact the officer who issued the notice who will inform you of what to do to comply. For some notices there are rights to appeal, usually in the Magistrates or in Scotland the Sheriff Court. If you disagree with the notice and wish to appeal then please read the notes on the notice and you may wish to seek legal advice from a Citizens Advice Bureau, Solicitor or other independent legal advisor.

Where there are no rights of appeal provided it might be possible to seek Judicial Review of the case subject to time and legal limitations. If you intend to seek Judicial Review you are advised to seek legal advice as applications may require specialist legal knowledge.

• Redress: You may complain to the local authority and if the authority does not resolve your complaint you may complain to the Ombudsman if you have any concerns relating to the procedures or administration. Most Notices will offer a right of appeal against the substance of the decision made by the enforcement officer. This appeal will normally be to a Magistrate or in Scotland the Sheriff.

Search Warrants
If an enforcement officer has reason to suspect that offences may have been committed they can sometimes apply to a Magistrate (or in Scotland the Sheriff), for a Warrant of Entry to look for evidence of offences. If an officer executes such a warrant of entry they should explain what is happening, provide you with documentation, show you their identity card, leave a copy of the warrant with you and provide you with information on their powers. Warrants of entry will usually allow use of reasonable force if needed. You should not obstruct an officer who is executing such a warrant. If you physically prevent an officer from executing the warrant, or attack the officer, then a Police Officer will be asked to intervene to prevent a breach of the peace and a charge of obstruction could be brought against you. Enforcement officers may take items away with them if provided for in legislation and/or the Warrant of entry. This could include documents, computer files, order books, invoices etc. If they do take items away they will give you a receipt. If you need any of these items or copies of these items for other purposes such as returns to the Inland Revenue etc. then please discuss with the enforcement officer executing the Warrant. Invariably all items will be returned to you following the resolution of the investigation unless they are required as evidence or a Court orders them to be held/destroyed for any reason.

• Redress: Provided that a Warrant has been obtained, issued and exercised correctly, there is no means of appeal against this type of activity. However, the Warrant can be challenged in related criminal proceedings. If there are no related criminal proceedings and you consider that the legal process has not been correctly followed then you may seek damages in a civil action. If you intend to do this you would be advised to obtain your own legal advice.

Formal interview
If an enforcement officer is investigating possible offences relating to imported food or feed then they may interview you formally. If during this interview they have reason to believe that an offence has been committed, the officer should caution you that "You do not have to say anything, however it may harm your defence if you do not mention when questioned something that you later rely on in Court. Anything that you do say may be given in evidence." You will then be asked to confirm that you understand what has been said and if not a further explanation will be provided. The enforcement officer will advise you if you are under arrest or not and that you may seek legal advice before they start asking you questions. The interview may be tape recorded or written down by an officer. At the end you will be asked to sign to verify accuracy of any written record or to prevent tampering with any recording made.

In most cases you will not be detained or under arrest and will be free to leave at any time. However, there may be occasions where enforcement officers questioning you also have the power to detain or arrest you (e.g. Customs and Police Officers). Where you have been detained or arrested you will be told that you are detained or arrested and be able to seek legal advice (although this may be refused in Scotland). If detained or arrested you will be advised of your legal rights and, if you request, you will be given information on how to complain should you wish to do so.

• Redress: As per the caution read out by the enforcement officer, you do not have to say anything. If you are unhappy with the procedures used or by the conduct of local authority officer(s) then you may complain to the local authority and if the authority does not resolve your concerns you may complain to the Ombudsman. In respect of complaints relating to detention or arrest, the Police and Customs services will be able to advise you on how to complain. In Scotland you may also contact the Procurator Fiscal to complain about procedures used.

Formal Cautions
In some circumstances when you have committed an offence and you have indicated that you accept that you or the company represented by you are guilty of the offence, a formal caution may be offered by authorities in Wales, England and Northern Ireland instead of a prosecution. It is at the discretion of the prosecuting authority whether to offer a formal caution or not. A formal caution will not be offered for more serious offences. If you decline to receive a formal caution then the authority may initiate prosecution proceedings for the offence(s). A formal caution may be cited in Court if further similar offences are committed. If this happens then the Court may take the caution into account when sentencing, possibly resulting in increased penalties.

A written or personal warning may be issued by the Procurator Fiscal in Scotland. This type of warning does not depend on you admitting guilt. A warning will advise that repetition of the alleged behaviour will be likely to result in a prosecution.

In Scotland it is also possible that you may be offered a conditional fixed penalty of between £25-£100. If you decline the fixed penalty then criminal proceedings will be initiated.

• Redress: In England, Wales or Northern Ireland you have a choice to accept or decline a formal caution. If you are not happy to accept it then you will have the opportunity to lay your defence in Court. If you are unhappy with the procedures used or by the conduct of the officer(s) then you may complain to the local authority and if the authority does not resolve your concerns you may complain to the Ombudsman.
• In Scotland you may complain to the Procurator Fiscal if you are not content with conduct or procedures used in the issue of a written personal warning or fixed penalty.

Prosecution
If an enforcement officer in Wales, England and Northern Ireland believes that you or the company that you represent has committed an offence in breach of imported food or feed control legislation, then through their local authority, they may initiate criminal legal proceedings against you and/or the company. In these instances you will receive a summons from the Magistrates Court.

In Scotland the Procurator Fiscal will decide whether to initiate a prosecution following receipt of a report from an enforcement officer. Then you will receive a copy of the complaint and a citation to appear in either the district or Sheriff Court.

You should follow all instructions on such a citation or summons. The Court will hear evidence from the enforcement authority, yourself and/or your company and any witnesses called. Some cases (usually the most serious cases) may be referred on to other Courts. Ultimately the Magistrate, Sheriff or Jury will decide on the case and if you are found guilty they will impose penalties, as they deem appropriate, up to the legal maximums. Currently the maximum penalties for most breaches of imported food legislation are given in scale 5 on the standard tariff.

This means that:

• In relation to food not of animal origin (under the OFFC (England) Regulations 2005 (SI 2005/2626)):
  • (a). For summary offences there is generally a maximum fine of £5,000
  • (b). On indictment this rises to an unlimited fine and/or up to 2 years imprisonment.
• In relation to food of animal origin:
  • (a). For summary offences there is a maximum fine of £5,000 and/or 3 months in prison
  • (b). On indictment this rises to an unlimited fine and/or up to 2 years imprisonment.
• Similar penalties apply in relation to animal feeds.

• Redress: If you are prosecuted then you will have the opportunity to give your defence in Court. If you are unhappy with the procedures used in the investigation or by the conduct of the officer(s) then you may complain to the local authority and if the authority does not resolve your concerns you may complain to the Ombudsman.

Civil court actions
If you have not paid money owed to the enforcement authority that they have charged to you, then the authority may take Civil proceedings to recover the debt from you. In England, Wales or Northern Ireland this will be in a Civil Court such as the County Court. Again, if you receive a summons from a Civil Court you are advised to read this carefully and comply with the requirements of the summons.

In Scotland you will receive a small claim, summary cause summons or copy initial writ along with a citation to appear or to be represented in the Sheriff Court.

• Redress: If you are summonsed to Court then you will have the opportunity to provide your defence. If you are unhappy with the procedures used in the recovery of debt or by the conduct of the local authority officer(s) then you may complain to the local authority and if the authority does not resolve your concerns you may complain to the Ombudsman.