The Materials and Articles in Contact with Food Regulations (Northern Ireland) 2007

PART 5 General

Offences and penalties

13.—(1) Any person who—

(a) contravenes the provisions of regulation 8(2), 10(3), (4), (6) or (7), or 11(1) or (3);

(b) intentionally obstructs any person acting in the execution of Regulation 1935/2004, Regulation 2023/2006 or these Regulations or without reasonable excuse fails to provide any assistance or information that person may reasonably require; or

(c) in purported compliance with any requirement mentioned in sub-paragraph (b), knowingly or recklessly supplies information that is false or misleading in any material particular,

is guilty of an offence.

(2) Any person convicted of an offence under these Regulations is liable —

(a) in the case of an offence mentioned in paragraph (1)(a) or (c) or in regulation 4 or 5 —

(i) on conviction on indictment to a fine or to imprisonment for a term not exceeding two years or both;

(ii) on summary conviction to a fine not exceeding the statutory maximum or to a term of imprisonment not exceeding 6 months or both; and

(b) in the case of an offence mentioned in paragraph (1)(b) on summary conviction to a term of imprisonment not exceeding 3 months or to a fine not exceeding level 5 on the standard scale or both.

(3) Nothing in paragraph (1)(b) is to be construed as requiring any person to answer any question or give any information if to do so might incriminate him.

Enforcement

14.—(1) Each district council in its district shall execute and enforce—

(a) the provisions of Regulation 1935/2004 mentioned in regulation 4, and

(b) subject to paragraph (3), these Regulations.

(2) The Food Standards Agency may also execute and enforce the provisions of Articles 16(1) and 17(2).

(3) Each district council in its district shall execute and enforce the provisions of Regulation 2023/2006 mentioned in regulation 5.

Offences due to act or default of a third party

15.  Where the commission by any person of an offence under these Regulations is due to an act or default of some other person, that other person shall be guilty of the offence; and a person may be charged with and convicted of the offence whether or not proceedings are taken against the first mentioned person.

Time limit for prosecutions

16.  A prosecution for an offence under these Regulations shall not be begun after the expiry of three years from the commission of the offence or one year from its discovery by the prosecution, whichever is the earlier.

General defences

17.—(1) In any proceedings for an offence under these Regulations it shall, subject to paragraph (5), be a defence for the person accused to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control.

(2) Without prejudice to the generality of paragraph (1), a person accused of an offence under regulation 4 or 13(1)(a) who did not —

(a) prepare the material or article in respect of which the offence is alleged to have been committed; nor

(b) import it into the United Kingdom,

shall be taken to have established the defence provided by paragraph (1) if he satisfies the requirements of paragraphs (3) and (4).

(3) A person satisfies the requirements of this paragraph if he proves —

(a) that the commission of the offence was due to an act or default of some other person who was not under his control, or to reliance on information supplied by such a person;

(b) that either —

(i) he carried out all such checks of the material or article in question as were reasonable in all the circumstances, or

(ii) it was reasonable in all the circumstances for him to rely on checks carried out by the person who supplied him with that material or article; and

(c) that he did not know and had no reason to suspect at the time the offence was committed that his act or omission would amount to an offence under these Regulations.

(4) A person satisfies the requirements of this paragraph if the offence is one of sale and he proves —

(a) that the commission of the offence was due to the act or default of some other person who was not under his control, or to reliance on information supplied by such a person;

(b) that the sale of which the offence consisted was not a sale under his name or mark; and

(c) that he did not know and could not reasonably be expected to know at the time the offence was committed that his act or omission would amount to an offence under these Regulations.

(5) If in any case the defence provided by this regulation involves the allegation that the commission of the offence was due to an act or default of another person, or to reliance on information supplied by another person, the person accused shall not, without leave of the court, be entitled to rely on that defence unless —

(a) at least seven clear days before the hearing; and

(b) where he has previously appeared before a court in connection with the alleged offence, before the expiration of one month from his first such appearance,

he has served on the prosecution a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.

Procedure where a sample is to be analysed

18.—(1) An authorised officer who has procured a sample under Article 29 of the Order and who considers it should be analysed shall divide the sample into three parts.

(2) If the sample consists of sealed containers and opening them would, in the opinion of the authorised officer, impede a proper analysis, the authorised officer shall divide the sample into parts by putting the containers into three lots, and each lot shall be treated as being a part.

(3) The authorised officer shall —

(a) if necessary place each part in a suitable container and seal it;

(b) mark each part or container;

(c) as soon as reasonably practicable, give one part to the owner and notify him in writing that the sample will be analysed;

(d) submit one part for analysis in accordance with Article 30 of the Order; and

(e) retain one part for future submission under regulation 19.

Secondary analysis by the Government Chemist

19.—(1) Where a sample has been retained under regulation 18 and —

(a) proceedings are intended to be or have been commenced against a person for an offence under these Regulations; and

(b) the prosecution intends to adduce as evidence the result of the analysis mentioned in regulation 18,

paragraphs (2) to (7) apply.

(2) The authorised officer —

(a) may of his own volition; or

(b) shall —

(i) if requested by the prosecutor (if a person other than the authorised officer);

(ii) if the court so orders; or

(iii) (subject to paragraph (6)) if requested by the defendant,

send the retained part of the sample to the Government Chemist for analysis.

(3) The Government Chemist shall analyse the part sent to him under paragraph (2) and send to the authorised officer a certificate specifying the results of analysis.

(4) Any certificate of the results of analysis sent by the Government Chemist shall be signed by him or on his behalf, but the analysis may be carried out by any person under the direction of the person who signs the certificate.

(5) The authorised officer shall immediately on receipt supply the prosecutor (if a person other than the authorised officer) and the defendant with a copy of the Government Chemist’s certificate of analysis.

(6) Where a request is made under paragraph (2)(b)(iii) the authorised officer may give notice in writing to the defendant requesting payment of a fee specified in the notice to defray some or all of the Government Chemist’s charges for performing the functions under paragraph (3), and in the absence of agreement by the defendant to pay the fee specified in the notice the authorised officer may refuse to comply with the request.

(7) In this regulation “defendant” includes a prospective defendant.

Application of various provisions of the Order

20.—(1) The following provisions of the Order apply for the purposes of these Regulations with the modification that any reference in those provisions to the Order or Part thereof shall be construed as a reference to these Regulations —

(a) Article 2(4) (extending meaning of “sale” etc);

(b) Article 3 (application to food offered as prizes etc.);

(c) Article 30(8) (which relates to documentary evidence) and

(d) Article 43 (protection of public analyst acting in good faith).

(2) In the application of Article 33 of the Order (powers of entry) for the purposes of these Regulations, the reference in paragraph (1) to the Order shall be construed as including a reference to Regulation 1935/2004 or as appropriate to Regulation 2023/2006.

(3) Article 4 of the Order (presumptions that food is intended for human consumption) applies for the purposes of these Regulations with the modification that any reference in those provisions to the Order shall be construed as including a reference to Regulation 1935/2004 or, as appropriate Regulation 2023/2006, and to these Regulations and that the references to “sold” and “sale” shall be deemed to include references to “placed on the market” and “placing on the market” respectively.

Amendment of the Ceramic Articles in Contact with Food Regulations (Northern Ireland) 2006

21.—(1) The Ceramic Articles in Contact with Food Regulations (Regulations) 2006(1) are amended in accordance with paragraph (2).

(2) In Schedule 3 (declaration of compliance), for sub-paragraph (d) of paragraph 1 substitute the following —

“(d) confirmation that the ceramic article or articles meet the relevant requirements in —

(i) these Regulations; or

(ii) (aa) Council Directive 84/500/EEC on the approximation of the laws of the Member States relating to ceramic articles intended to come into contact with foodstuffs

(bb) Regulation (EC) No. 1935/2004 of the European Parliament and of the Council on materials and articles intended to come into contact with food and repealing Directives 80/590/EEC and 89/109/EEC(2).”.

Amendments to the 2006 Regulations

22.—(1) The 2006 Regulations are amended in accordance with paragraphs (2), (3) and (4).

(2) In paragraph (1) of regulation 2 (interpretation) omit the definition of “the 2005 Regulations”.

(3) In paragraph (1)(b) of regulation 11 (method of testing the capability of materials or articles to transfer constituents, and methods of analysis), for “regulation 7(2) of the 2005 Regulations” substitute “regulation 9(2) of the Materials and Articles in Contact with Food Regulations (Northern Ireland) 2007”.

(4) In paragraphs (2) and (3) of regulation 20 (secondary analysis by the Chief Agricultural Analyst) for “Chief Agricultural Analyst” substitute “Government Chemist” and in paragraphs (4), (5) and (6) of that regulation for “Chief Agricultural Analyst’s” substitute “Government Chemist’s”

Revocations

23.  The Materials and Articles in Contact with Food Regulations (Northern Ireland) 2005 and Regulation 24 of the 2006 Regulations are revoked.

(1)

S.R. 2006 No. 217

(2)

OJ No. L338, 13.11.2004, p.4