CO/4248/03 
Neutral Citation Number: [2004] EWHC 459 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 27th February 2004
 
B E F O R E:

MR JUSTICE STANLEY BURNTON

 
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THE QUEEN ON THE APPLICATION OF THE FOOD STANDARDS AGENCY
Claimant
-v-
 
(1) THE BRENT JUSTICES 
Defendant
(2) KELMAN'S KOSHER PRODUCTS 
Interested Party 
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MR. D. BEARD (instructed by The Office of the Solicitor, Department of Health) appeared on behalf of the Claimant.
THE DEFENDANTS did not appear and were not represented. 
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J U D G M E N T
1.	MR. JUSTICE STANLEY BURNTON:  In this case the Food Standards Agency seeks declaratory relief arising out of a question that has arisen as to the proper interpretation of section 9 of the Food Safety Act 1990, and in particular the powers available to a justice of the peace under that section, and in particular under subsection (6).  A question has also arisen as to the appropriate procedure for challenging a decision of the justice of the peace made under section 9.  
2.	The case arises in the following way.  On 18th June 2003 a notice entitled "Detention of Food Notice" was served on a  business known as Kelman Kosher Products in Wembley in Middlesex.  The notice related to 32 boxes of beef forequarters boned out, and stated that the food was not to be used for human consumption.  The reason given was that, in the opinion of the authorised officer of the Agency who served the notice, the boxes were not health marked as required by the relevant regulations.  The notes to the notice informed the recipient that the food described in it had been detained pending official investigation and must not be used for human consumption until released by the authorised officer.  Paragraph 5 of the notice stated that within 21 days the authorised officer must tell the person on whom the notice was served if the notice is being withdrawn or if he is seizing the food for it to be dealt with by a justice of the peace who may condemn it.  The notice reflected the provisions of section 9 itself.  
3.	It will be noted that the notice did not allege that the meat itself was defective, diseased or unfit for human consumption.  The failure to conform with the regulations specified in the notice related to the wrapping and packaging of the meat.  The Fresh Meat (Hygiene and Inspection) Regulations 1995 provide in effect that a failure to comply with the requirements for the wrapping and packaging of fresh meat contained in Schedule 13 to those Regulations, incorporated through Schedule 12, results in that meat failing to comply with food safety requirements.  That failure to comply with food safety requirements applies both under the regulations and under the Act itself by virtue of section 26, which permits an extension of the meaning of the expression "failing to comply with food safety requirements" by the regulations.  
4.	The authorised officer of the Agency did not withdraw the notice.  He was satisfied that the meat did not comply with food safety requirements within the meaning of the Act.  As a result the matter was brought before a justice of the peace.  The justice of the peace in question was District Judge Marshall sitting at Hendon Magistrates' Court.  Section 9(5) of the Act provides for a hearing before a justice of the peace.  There was such a hearing in the present case.  The District Judge upheld the contention of the authorised officer that the meat subject to the notice did not comply with food safety requirements.  However, she construed section 9 as conferring on her a discretion whether or not to condemn the food.  Since she regarded the failure properly to label the food as required by the regulations as not affecting its fitness for sale or for human consumption, she exercised the discretion she considered she had by refusing to condemn the meat.  As a result, it was released to Kelman Kosher Products and sold by them.  
5.	The Food Standards Agency was concerned at the decision of the District Judge, since its view was that she had no such discretion as she purported to exercise.  Its view, as reflected in the submissions made to me today, is that once it is established before a justice of the peace that food fails to comply with food safety requirements, as defined in the Act and in the regulations made under the Act, it must be condemned, and a justice of the peace has no discretion to  release it for human consumption.  It accordingly sought to have a case stated by the District Judge.  The District Judge refused to state a case on the basis that, in exercising the powers under section 9, she was acting not as a court but in an executive or administrative capacity.  That view of her function was probably derived from the decision of the Divisional Court in R v Cornwall Quarter Sessions, ex parte Kerley [1956] 1 WLR 906.  
6.	The Food Standards Agency consequently brought judicial review proceedings seeking an order requiring the District Judge to state a case.  The District Judge, however, in a letter dated 5th January 2004 gave reasons for her decision.  In those circumstances the Agency now seeks declaratory relief, to the effect that the reasons given by the District Judge were wrong in law, in that she had no discretion to exercise under section 9 and had been under a duty to condemn the meat once it was established to her satisfaction that it did not comply with food safety requirements.  I do not have to decide today whether or not the refusal of the District Judge to state a case was well-founded.  It is sufficient that reasons have been given by her for a decision made in the exercise of a public function which is amenable to judicial review.  The court therefore has jurisdiction and a discretion to grant declaratory relief.  I am bound to say, however, that it seems to me that this was a case in which the District Judge could and should have stated a case.  The decision of the Divisional Court in Kerley was to the effect that the exercise by a justice of the peace of a power under section 10 of the Food and Drugs Act 1938 did not give rise to a right of appeal to the Quarter Sessions.  The powers under section 10 of the Food and Drugs Act 1938 were similar to those under section 9 of the 1990 Act, there being no relevant difference between them.  The Divisional Court in Kerley considered that the powers of a justice of the peace under the 1938 Act were not those of a court but those of in effect a superior officer exercising powers akin to an authorised officer of a food safety agency.  Lord Goddard CJ said this (at 910): 
"In acting so, [under section 10 of the 1938 Act] it does not seem to me that the justice is acting in any more elevated position than a superior inspector.  He is somebody to check, no doubt, the action of the ordinary officer of the local authority and to give a safeguard to people so that their property is not likely to be improperly destroyed.  But at the same time he is exercising very much the same sort of jurisdiction as a local authority can exercise with regard to statutory nuisances.  They find a statutory nuisance, they deal with it and, if necessary, they abate it."
The Divisional Court in Kerley did not refer to any definition provision of the then Magistrates' Courts Act.  The question before it, as set out at page 908 of the report at [1956] 1 WLR 906, was whether the Justice was acting as "a court of summary jurisdiction".  That was not apparently a defined expression.   The current Magistrates' Courts Act 1980 does include a definition of "magistrates' court".  Section 148(1) provides: 
"In this Act the expression 'magistrates' court' means any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law."  
The words "acting under any enactment" could scarcely be wider.  It is to be noted that a single justice of the peace is a magistrates' court for the purposes of that section.  
7.	Statements of case are the subject of section 111 of that Act.  Subsection (1) provides that: 
"Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved."  
The word "proceeding" could also scarcely be wider.  It is to be noted that "proceeding" is not limited to a criminal proceeding.  That is clear from the words "conviction, order, determination or other proceeding of the court", which appear in subsection (1).  Those words again could scarcely be wider.  Subsection (4) of section 111 refers to the making of an application under section 111 in respect of "a decision".  Again, the word "decision" could scarcely be wider.   
8.	Section 9 of the Food Safety Act 1990 expressly provides for a hearing before the justice of the peace (see subsection (5)).  It expressly provides that any person who might be liable to a prosecution in respect of the food in question, as a result of the action of an authorised officer under the preceding subsections, shall "be entitled to be heard and to call witnesses".  In the absence of authority, I would have no doubt that the proceeding before a justice of the peace under section 9 of the Food Safety Act is a proceeding within the meaning of section 111 of the Magistrates' Courts Act 1980, which results in a determination within the meaning of subsection (1) and a decision within the meaning of subsection (4).  
9.	That conclusion is supported by the decision of a Divisional Court of the Queen's Bench Division in Jeffrey v Evans [1964] 1 WLR 505, where licensing justices were held liable to state a case for the opinion of the High Court by reason of the wide words of the definition in the then section 124(1) of the Magistrates' Courts Act 1952, a definition which is to be found in the current Act.  In referring to that definition Lord Parker CJ said at page 507: 
"Those it seems to me are very wide words, and I think, and indeed it is convenient, that in cases concerning licensing justices they should be required to state a case."  
Had it been necessary to do so, therefore, I should have held that the District Judge in the present case could be required to state a case on the question of law involved, and had it been necessary to do so, I should have made an order requiring her to do so.  In fact, it is unnecessary so to do because she has given reasons for her decision in writing.  In those circumstances, the court can scrutinise those reasons to determine whether or not they are correct in law and grant declaratory relief without taking the unnecessary step, involving unnecessary work and the costs of requiring the case to be stated.  
10.	I turn therefore to consider the provisions of section 9 of the 1990 Act.  Section 9 provides, so far as relevant, as follows: 
"(1) An authorised officer of a food authority may at all reasonable times inspect any food intended for human consumption which -
 (a) has been sold or is offered or exposed for sale;  or 
 (b) is in the possession of, or has been deposited with or consigned to, any person for the purpose of sale or of preparation for sale;
and subsections (3) to (9) below shall apply where, on such an inspection, it appears to the authorised officer that any food fails to comply with food safety requirements.
 (2) The following provisions shall also apply where, otherwise than on such an inspection, it appears to an authorised officer of a food authority that any food is likely to cause food poisoning or any disease communicable to human beings.
 (3) The authorised officer may either -
 (a) give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it -
 (i) is not to be used for human consumption;  and 
 (ii) either is not to be removed or is not to be removed except to some place specified in the notice;  or 
 (b) seize the food and remove it in order to have it dealt with by a justice of the peace;
and any person who knowingly contravenes the requirements of a notice under paragraph (a) above shall be guilty of an offence
 (4) Where the authorised officer exercises the powers conferred by subsection (3)(a) above, he shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he is satisfied that the food complies with food safety requirements and -
 (a) if he is so satisfied, shall forthwith withdraw the notice;
 (b) if he is not so satisfied, shall seize the food and remove it in order to have it dealt with by a justice of the peace.
 (5) Where an authorised officer exercises the powers conferred by subsection (3)(b) or (4)(b) above, he shall inform the person in charge of the food of his intention to have it dealt with by a justice of the peace and -
 (a) any person who under section 7 or 8 above might be liable to a prosecution in respect of the food shall, if he attends before the justice of the peace by whom the food falls to be dealt with, be entitled to be heard and to call witnesses;  and 
 (b) that justice of the peace may, but need not, be a member of the court before which any person is charged with an offence under that section in relation to that food.
 (6) If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under this section fails to comply with food safety requirements, he shall condemn the food and order -
 (a) the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption;  and 
 (b) any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the goods.
 (7) If a notice under subsection (3)(a) above is withdrawn, or the justice of the peace by whom any food falls to be dealt with under this section refuses to condemn it, the food authority shall compensate the owner of the food for any depreciation in its value resulting from the action taken by the authorised officer." 
11.	It can be seen that section 9 provides for a number of steps to be taken.  The authorised officer may take the steps referred to in subsection (3) and following if it appears to him that any food fails to comply with food safety requirements.  It is evident that food may appear to an authorised officer to fail to comply with food safety requirements without his having made a final decision as to that matter.  Where it does so appear to him he may give a notice under subsection (3)(a).  Such a notice was given in the present case, and it will have been noted that the notice to which I have referred reflected the provisions of section 9 itself.  
12.	The next step where a notice has been given under subsection (3)(a) is referred to in subsection (4).  The authorised officer must, as soon as reasonably practicable and in any event within 21 days, determine whether or not he is satisfied that the food complies with food safety requirements.  The decision referred to in subsection (4) is an administrative decision.  The officer must have made up his mind whether or not he is satisfied that the food complies with food safety requirements;  that is to say, the matter has gone beyond it merely appearing to him that it does not do so.  The results of his determination under subsection (4) are mandatory.  If he is satisfied, notwithstanding his initial impression that food does comply with food safety requirements, he is bound forthwith to withdraw the notice given under section (3)(a).  If he is not so satisfied, he must seize the food and remove it in order to have it dealt with by a justice of the peace.  It is quite clear from subsection (4) that he has no discretion in the matter once he determines that the food does not comply with food safety requirements.  It is to be noted that the exercise of his powers under subsection (4) does not depend on the palatability of the food or whether or not the food is fit for human consumption.  The only question for decision by him is whether or not the food complies with food safety requirements as defined in the Act and the regulations.  Where he decides that he is not satisfied that the food complies with food safety requirements, the matter must be brought before a justice of the peace under subsection (5), to which I have already referred.  
13.	The wording of subsection (6) appears to be clear.  If it appears to the justice of the peace, on the basis of the evidence that he considers appropriate in the circumstances, that any food falling to be dealt with by him under this section fails to comply with food safety requirements, he shall condemn the food.  The use of the word "shall" indicates a step which is mandatory.  The wording is not that "he may condemn the food".  It is that he "shall condemn the food".  It would be curious if the magistrate had a discretion whether or not to condemn the food which did not comply with food safety requirements, having regard to the fact that he is exercising a review or appellate function in relation to a decision made by an authorised officer under subsection (4).  Since the authorised officer has no such discretion, it would be curious indeed if the justice of the peace did have a discretion under subsection (6).  That there is no such discretion is consistent with the wording of subsection (6).  
14.	In the present case, the District Judge held that she did have a discretion by reason of the reference in subsection (7) to her being able to refuse to condemn the food.  It is right that, at first blush, a power to refuse to condemn food would seem to imply some sort of discretion.  In the present case, however, it is clear to me that the words "refuses to condemn it" mean no more than "does not condemn", having regard to the unequivocal provisions of subsections (4) and (6).  Moreover, as Mr Beard has pointed out, subsection (7) is very much a subsidiary provision dealing with compensation rather than a decision falling to be made under subsection (6).  
15.	In the present case, as is normal, the District Judge has not appeared or been represented at this hearing;  nor has the interested party, Kelman Kosher Products, since the food in question has been released for sale, sold and consumed.  There having been no adversarial argument in the present case, I have considered whether or not it is appropriate to grant declaratory relief.  However, in my judgment the wording of the statute leaves no room for doubt.  It would be unfortunate if district judges and other justices of the peace were to proceed under a misunderstanding or misapprehension of the provisions of section 9 and their powers.  It seems to me, therefore, that it is appropriate and important that declaratory relief is given.  In those circumstances, I propose to grant a declaration to the Food Standards Agency in terms which I shall discuss with counsel.  
16.	MR. JUSTICE STANLEY BURNTON: Where is the declaration that you are seeking?  
17.	MR. BEARD:  There may not be a specific wording in the application since it was made at the time when this was an application to have a case stated.  
18.	MR. JUSTICE STANLEY BURNTON:  Would you go out and draft a declaration and come back when I have heard the next matter.  Is there any other relief you are seeking? 
19.	MR. BEARD: I do not believe there is any. 
20.	MR BEARD: I have a draft text.   
21.	MR JUSTICE STANLEY BURNTON: Hand it up.   In future, it is a good idea to have it drafted out when you appear in this court.  
22.	MR BEARD: It shadows the words of subsection (6) but uses the word "obliged" rather than "shall".  
23.	MR JUSTICE STANLEY BURNTON: I think it should say as follows: "Where, following the exercise by an authorised officer of his powers under subsection (3)(b) or (4(b) of section 9 of the Food Safety Act 1990, a decision falls to be made by a justice of the peace under subsections (5) and (6) of that provision, if it appears to that justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under that section fails to comply with food safety requirements, he is required to condemn the food and make orders as required by subsection 6(a) and (b).  It is more of an introduction to what we have at the moment.   I do not know whether you can read it back, whether you got it down.  
24.	MR BEARD: "Where, following the exercise by an authorised officer of his powers under (3)(b) and (4(b) of the Food Safety Act ---
25.	MR JUSTICE STANLEY BURNTON: Of section 9 of the Food Safety Act 1990 a decision falls to be made by a justice of the peace under subsections (5) and (6) of that provision, if it appears to the justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under that section fails to comply with food safety requirements, he is required to condemn the food and make the orders specified in subsection (6)(a) and (b), something like that, and has no discretion to do otherwise.  If you get that typed up and give it to the associate I will initial an order.  Is that all right?
26.	MR BEARD: Yes, my Lord.