B Davies & Sons Ltd [2019] EWCA Crim 1624
Summary
R v B Davies & Sons Ltd [2019] EWCA Crim 1624 concerned an appeal against sentence by a food business operator which was dismissed by the Court of Appeal (Mrs Justice Farbey, Lord Justice Haddon-Cave and Sir John Royce sitting).
On 8 October 2018 in the Crown Court at Preston before His Honour Judge Parry, the appellant company pleaded guilty upon re-arraignment to five offences of breaching a European Community Regulation Relating to Food Safety, contrary to regulation 19(1) of the Food Safety and Hygiene (England) Regulations 2013. The judge imposed a fine of £50,000 and ordered the appellant to pay £20,000 towards prosecution costs. The single judge granted leave to appeal and a short extension of time.
The appellant was a food business operator trading in meat for human and animal consumption. In summer 2016 the appellant purchased 1,000 kilograms of frozen chicken at 50 pence per kilogram from 2 Sisters on the understanding it was to be used for pet food. The meat was out of date for human consumption by approximately 18 months, the correct use-by date being 21 January 2015. After delivery, false labels were put on the boxes showing a best before end date of 8 August 2016 and indicating the food was fit for human consumption. These actions constituted counts 4 and 5 on the indictment, relating to 41 boxes and nine boxes respectively. The 41 boxes were sold to a take-away supplier called Ahmed’s (count 2), whilst the nine other boxes were made available for sale (count 3). The appellant was unable to identify to environmental health officers the destination of those nine boxes (count 6) and they were never recovered. When the appellant’s premises were searched an invoice was produced suggesting the poultry had been purchased from a yard in Scotland, which was confirmed to be false when officers found the address was an abandoned yard.
The procedural history was prolonged. The appellant had initially accepted summary jurisdiction but later sought to reopen the question of jurisdiction and on 24 July 2017 elected trial at the Crown Court. No pleas were entered at the plea and trial preparation hearing on 23 August 2017 and a trial date was fixed for 19 March 2018. On 16 February 2018 the appellant pleaded not guilty to all counts. On 7 March 2018 the trial was vacated due to ill-health of a company director, with a new trial date of 8 October 2018. A pre-trial hearing on 10 August 2018 to address a non-defendant bad character application was vacated. A further hearing in relation to bad character evidence on 28 September 2018 refused the application. Emails were exchanged between counsel on 3 October 2018, copied to the judge, in which he indicated that credit would be limited to 10 per cent if pleas were entered on the day of trial but that he was prepared to consider greater credit if guilty pleas were confirmed before trial. On 5 October 2018, the last working day before trial, the appellant indicated it would enter acceptable guilty pleas to counts 2 to 6, which were entered on 8 October 2018.
In sentencing, Judge Parry applied the Sentencing Guideline for Breach of Food Safety and Food Hygiene Regulations as they apply to organisations. He found very high culpability because there had been deliberate breach of the law. As to harm, the judge accepted the prosecution submission that there was a medium risk of adverse effect on individuals had they consumed the meat. Additionally, the environmental authority had been unable to trace nine boxes to identify the risk to health from that chicken. These reasons placed the level of harm within category 2. The judge classified the appellant as a small organisation with a turnover between £2 million and £10 million. The starting point for a small company for a very high culpability category 2 offence was a fine of £50,000 with a range of £18,000 to £200,000. In aggravation, there was financial motive and provision of a false invoice, though profit may not have been high. In mitigation, the judge heard evidence from the senior director, Mr Davies Senior, aged 79, who expressed remorse and explained bad debts which had affected the company’s finances, supported by the company’s accountant. Evidence was also heard from the managing director of a cooked meat factory in Bolton who spoke of the appellant’s good reputation. The appellant company had no previous convictions and had earned an outstanding reputation in the industry. Balancing these factors, the judge concluded that the appropriate fine would have been £65,000 before considering proportionality overall and other factors. Taking into account all the financial information, including that the company’s turnover of £7 million did not properly reflect its profitability given the need to write off bad debts, the judge reduced the starting point to £60,000. The judge concluded that reduction for a guilty plea should be 15 per cent given the late pleas. Rounding down, the judge imposed the £50,000 fine on count 4 and applying the principle of totality imposed no separate penalty on other counts. As to costs, the prosecution sought approximately £32,000. The defence submitted that the local authority solicitor’s charging rate was too high and that costs had been increased because the local authority had rejected the offer of pleas to regulatory offences shortly after the plea and trial preparation hearing in 2017. The judge bore that submission in mind but held that costs had been accrued primarily as a result of the manner in which the appellant had sought to contest the case. Nevertheless, the judge reduced the amount to £20,000, making a total of £70,000 to be paid within 18 months.
On behalf of the appellant, Mr Richard Vardon contended that the fine and costs were manifestly excessive and disproportionate to the offending in the circumstances of the case. He submitted that the judge erred in concluding it was a category 2 case and erred in regarding the provision of the Scottish invoice as an aggravating feature. Insufficient weight had been given to the strong mitigating factors and what was said to be the one-off nature of the offending.
The Court of Appeal rejected these grounds. Mrs Justice Farbey, giving the judgment of the court, held that these were serious offences of putting public health at risk by passing off animal food as human food and undermining public confidence in the food chain. Fortunately most of the boxes were retrieved so that the meat was not consumed; however, nine boxes went into the market place and were not located. The deliberate breach entitled the judge to sentence the appellant on the basis of very high culpability. The inability to trace products entitled him to place the offending into category 2 harm. The judge applied the Sentencing Guidelines scrupulously. The 15 per cent credit for guilty pleas was unimpeachable. Notwithstanding the strong mitigation, the fine of £50,000 was not disproportionate and it would have been open to the judge to increase it in light of the deliberate nature of the offences. The fine was not manifestly excessive. The judge likewise gave full and proper consideration to the question of costs, taking into account the accountancy evidence showing the appellant’s financial position, but also the way the case had been conducted by the appellant. In short, there were no good grounds for the Court of Appeal to interfere and the appeal was dismissed.
On 8 October 2018 in the Crown Court at Preston before His Honour Judge Parry, the appellant company pleaded guilty upon re-arraignment to five offences of breaching a European Community Regulation Relating to Food Safety, contrary to regulation 19(1) of the Food Safety and Hygiene (England) Regulations 2013. The judge imposed a fine of £50,000 and ordered the appellant to pay £20,000 towards prosecution costs. The single judge granted leave to appeal and a short extension of time.
The appellant was a food business operator trading in meat for human and animal consumption. In summer 2016 the appellant purchased 1,000 kilograms of frozen chicken at 50 pence per kilogram from 2 Sisters on the understanding it was to be used for pet food. The meat was out of date for human consumption by approximately 18 months, the correct use-by date being 21 January 2015. After delivery, false labels were put on the boxes showing a best before end date of 8 August 2016 and indicating the food was fit for human consumption. These actions constituted counts 4 and 5 on the indictment, relating to 41 boxes and nine boxes respectively. The 41 boxes were sold to a take-away supplier called Ahmed’s (count 2), whilst the nine other boxes were made available for sale (count 3). The appellant was unable to identify to environmental health officers the destination of those nine boxes (count 6) and they were never recovered. When the appellant’s premises were searched an invoice was produced suggesting the poultry had been purchased from a yard in Scotland, which was confirmed to be false when officers found the address was an abandoned yard.
The procedural history was prolonged. The appellant had initially accepted summary jurisdiction but later sought to reopen the question of jurisdiction and on 24 July 2017 elected trial at the Crown Court. No pleas were entered at the plea and trial preparation hearing on 23 August 2017 and a trial date was fixed for 19 March 2018. On 16 February 2018 the appellant pleaded not guilty to all counts. On 7 March 2018 the trial was vacated due to ill-health of a company director, with a new trial date of 8 October 2018. A pre-trial hearing on 10 August 2018 to address a non-defendant bad character application was vacated. A further hearing in relation to bad character evidence on 28 September 2018 refused the application. Emails were exchanged between counsel on 3 October 2018, copied to the judge, in which he indicated that credit would be limited to 10 per cent if pleas were entered on the day of trial but that he was prepared to consider greater credit if guilty pleas were confirmed before trial. On 5 October 2018, the last working day before trial, the appellant indicated it would enter acceptable guilty pleas to counts 2 to 6, which were entered on 8 October 2018.
In sentencing, Judge Parry applied the Sentencing Guideline for Breach of Food Safety and Food Hygiene Regulations as they apply to organisations. He found very high culpability because there had been deliberate breach of the law. As to harm, the judge accepted the prosecution submission that there was a medium risk of adverse effect on individuals had they consumed the meat. Additionally, the environmental authority had been unable to trace nine boxes to identify the risk to health from that chicken. These reasons placed the level of harm within category 2. The judge classified the appellant as a small organisation with a turnover between £2 million and £10 million. The starting point for a small company for a very high culpability category 2 offence was a fine of £50,000 with a range of £18,000 to £200,000. In aggravation, there was financial motive and provision of a false invoice, though profit may not have been high. In mitigation, the judge heard evidence from the senior director, Mr Davies Senior, aged 79, who expressed remorse and explained bad debts which had affected the company’s finances, supported by the company’s accountant. Evidence was also heard from the managing director of a cooked meat factory in Bolton who spoke of the appellant’s good reputation. The appellant company had no previous convictions and had earned an outstanding reputation in the industry. Balancing these factors, the judge concluded that the appropriate fine would have been £65,000 before considering proportionality overall and other factors. Taking into account all the financial information, including that the company’s turnover of £7 million did not properly reflect its profitability given the need to write off bad debts, the judge reduced the starting point to £60,000. The judge concluded that reduction for a guilty plea should be 15 per cent given the late pleas. Rounding down, the judge imposed the £50,000 fine on count 4 and applying the principle of totality imposed no separate penalty on other counts. As to costs, the prosecution sought approximately £32,000. The defence submitted that the local authority solicitor’s charging rate was too high and that costs had been increased because the local authority had rejected the offer of pleas to regulatory offences shortly after the plea and trial preparation hearing in 2017. The judge bore that submission in mind but held that costs had been accrued primarily as a result of the manner in which the appellant had sought to contest the case. Nevertheless, the judge reduced the amount to £20,000, making a total of £70,000 to be paid within 18 months.
On behalf of the appellant, Mr Richard Vardon contended that the fine and costs were manifestly excessive and disproportionate to the offending in the circumstances of the case. He submitted that the judge erred in concluding it was a category 2 case and erred in regarding the provision of the Scottish invoice as an aggravating feature. Insufficient weight had been given to the strong mitigating factors and what was said to be the one-off nature of the offending.
The Court of Appeal rejected these grounds. Mrs Justice Farbey, giving the judgment of the court, held that these were serious offences of putting public health at risk by passing off animal food as human food and undermining public confidence in the food chain. Fortunately most of the boxes were retrieved so that the meat was not consumed; however, nine boxes went into the market place and were not located. The deliberate breach entitled the judge to sentence the appellant on the basis of very high culpability. The inability to trace products entitled him to place the offending into category 2 harm. The judge applied the Sentencing Guidelines scrupulously. The 15 per cent credit for guilty pleas was unimpeachable. Notwithstanding the strong mitigation, the fine of £50,000 was not disproportionate and it would have been open to the judge to increase it in light of the deliberate nature of the offences. The fine was not manifestly excessive. The judge likewise gave full and proper consideration to the question of costs, taking into account the accountancy evidence showing the appellant’s financial position, but also the way the case had been conducted by the appellant. In short, there were no good grounds for the Court of Appeal to interfere and the appeal was dismissed.