Practice and Procedure


PUBLISHED November 21, 2003

In a prosecution under s.8(1) Food Safety Act 1990, the question to be asked in order to determine whether "discovery" of the offence had occurred under s.34 of the Act was whether the facts disclosed, objectively considered, would have led the prosecuting authority to have reasonable grounds to believe that the offence might have been committed by some person who had been identified to it.Appeal by way of case stated against the conviction by Harrow Magistrates' Court on 2 January 2003 of the appellant ('Tesco') of selling a bread roll that was not fit for human consumption contrary to s.8(1) Food Safety Act 1990. The roll was purchased on 15 February 2001 and found to contain a piece of metal. The purchaser telephoned the environmental health services on 19 February 2001 and left a message for the environmental health officer ('EHO') which stated: "Food complaint. Bought: baps. Found: a piece of metal. Shop: Tesco, Station Rd, Harrow". On the same day, by coincidence and after receiving the message, the same EHO had a meeting with the store manager at which the latter indicated that he was already aware of the complaint. On 23 February 2001, the EHO spoke to the purchaser and took possession of the packets of rolls and their receipt. There followed an investigation concluding with the supply of the public analyst's report on 23 April 2001. The information was laid on 21 February 2002. The magistrates' court considered the date upon which "discovery" of the offence had occurred for the purpose of ascertaining whether the information had been laid within the one year time limit in s.34 of the Act. The court held that the relevant date was not 19 February 2001 on the basis that the quality of the evidence available on that date was insufficient to disclose the elements of the offence. The court considered it unnecessary to consider the respondent's ('H') submission that the correct date was 23 April 2001 but merely held that the claim was not statute-barred. On this appeal Tesco argued that: (i) the magistrates' court had wrongly directed itself in considering the quality of the information available on 19 February 2001 and had confused the issue of quality of evidence with the fact that primary facts existed on that date to show discovery of the offence; (ii) all the steps taken after that date were investigative and merely directed towards obtaining evidence to support the initial complaint; and (iii) accordingly, the proceedings should have been statute-barred.HELD: (1) Although the magistrates' court appeared not to have stated an explicit view as to when the offence had been disclosed, the conclusion to be drawn from the case stated was that it must have been after 21 February 2001. Since the only possible options left for the date of discovery were 23 February 2001 or 23 April 2001 and the latter date had been explicitly excluded, the date for discovery as found by the magistrates was the former date. It was then necessary to discern whether discovery of the offence had taken place on or before that date. (2) Part of the aim of the legislation was to bring about an efficient and timely investigation. Parliament would have intended that the appropriate time for the prosecution to assume a duty to investigate was once the offence had been disclosed. Relevant discovery was one that gave rise to a future investigation, which might or might not lead to a prosecution. It did not involve a consideration of the actions of the prosecuting authorities at the time. (3) Given parliament's intention, whilst the authority cited in R v Beaconsfield Justices, ex parte Johnston & Sons Ltd (1985) JPR 149, where it was held that discovery occurred when all the facts material to found the relevant charge under the Act disclosed the appropriate offence, was good authority, further guidance was useful. The question to be asked was whether the facts disclosed, objectively considered, would have led the prosecuting authority to have reasonable grounds to believe that the offence might have been committed by some person who had been identified to it. It was at that point that an investigation began and time began to run. (4) In this case, H had argued that it was not before 23 February 2001 that it was in a position to say that the degree of contamination was such that the offence had been discovered on the basis that the wording of s.8(1) was that the item had to be "so contaminated... that it would not be reasonable to expect it to be used for human consumption". However, that merely meant, in context, that a sale had to have taken place of goods in a contaminated state. Insofar as the magistrates' court had thought it necessary to make some judgment about the degree of contamination, they had erred. It was sufficient if the prosecuting authority had information from which it could be inferred, if a complaint had been made, that the food in question was unfit for human consumption. Moreover, it was not to be inferred that a purchaser had made an idle complaint. In any event, there was no evidence that the mere possession of the roll brought about any real change in the state of the information available to the EHO. (5) In those circumstances, it was clear that such information had been available on 19 February 2001 and accordingly since more than a year elapsed before the information was laid, the proceedings were statute-barred.Appeal allowed.