Torfaen v Willis heard in the Supreme Court

11 July 2013 - 4:48pm -- Gerry Danby
The Supreme Court of the United Kingdom

The Supreme Court

Torfaen County Borough Council v Douglas Willis Limited came before The Supreme Court, the highest in the land, last Tuesday, 9 July 2013, by way of an appeal from the Divisional Court. The issues for the Court to consider were the construction of regulation 44(1)(d) of The Food Labelling Regulations 1996. In particular, whether the offence of selling food with an expired ‘use by’ date requires proof that the food was at the time of the offence highly perishable and likely to constitute an immediate danger to human health; and whether a ‘use by’ date ceases to have effect once the food has been frozen.

There are two statutory durability indicators. Firstly, a ‘use by’ date (regulation 21) is required in the case of highly perishable foods which raise issues of food safety. Secondly, a ‘best before’ date (regulation 20) is to be applied in those cases where the issues raised relate to food quality, it is the date after which food starts to lose optimal quality. The manufacturer or packer is responsible for applying the appropriate indicator when food is first made ready for sale since they are in the best position to determine the correct durability indicator and instructions on the appropriate storage conditions.

Willis was charged with offences of selling food after the date shown in a ‘use by’ date, contrary to regulation 44(1)(d). The food in question was frozen pigs’ tongues, to which ‘use by’ dates had been applied before freezing. There was no evidence to shed light on when the food had been frozen. The magistrates dismissed the charges on the ground that Torfaen had not proved that a ‘use by’ date was required. The Divisional Court allowed Torfaen’s appeal and remitted the case for rehearing, but it came before The Supreme Court as one raising a point of law of public importance.

Jonathan Kirk QC appeared for Torfaen. Willis was not represented, which left Jonathan Kirk with the additional responsibility of putting the case for Willis that would have been made had Willis been represented. He began with outlining the steps that would normally be taken in a typical investigation of this nature. The appropriate officer would undertake a visit to the premises and check if any food offered for sale carried an expired ‘use by’ date. If any were found, usually a warning and advice would be given. Where a prosecution was under consideration the officer would take two or three statements from relevant persons to demonstrate:

  1. The food was on sale.
  2. The food carried a ‘use by’ date.
  3. The ‘use by’ date had passed.

The Court then went on to consider the effect of the offences created under regulation 44 and their relationship to each other, exploring all possibilities arising from every combination of the honest or unscrupulous manufacturer or packer responsible for applying the ‘use by’ date and the same in the case of the seller. The effect of a successful defence by the seller, in particular the defence of due diligence, was also examined.

While the case was all about the finer points of labelling regulations, it had some lighter moments. Lady Hale, who was presiding, at one point intervened and pointed out that her family, seemingly much to her annoyance, was always wanting to throw out bacon after the ‘use by’ date. Jonathan Kirk hesitated before explaining that, being mindful of who was instructing him, he could not possibly say it was safe to eat cured meat after the ‘use by’ date.

Regulation 44(1)(e) makes it an offence for any person who was not originally responsible for applying the ‘use by’ date to remove or alter it. The regulation does not, however, apply to the consumer, which led Lady Hale to comment:

“I can take the ‘use by’ date off my bacon to confuse my family!”

Lord Carnwath explained the rule of statutory interpretation in criminal matters which provides that the victim, in this case the consumer, is not to be treated as within the scope of a statutory offence which is designed to protect them. A situation where the law, as it does on occasion, applies common sense.

In brief, Jonathan Kirk’s submission to the Court was that regulation 44(1)(d) clearly sets out the elements of the offence and should be given its ordinary meaning, no special or additional requirements should be given to or imported into that meaning. If that were to happen it would, in some cases, make the successful prosecution of the offence all but impossible to undertake and this would be to the detriment of the public in matters of food safety.

The Court, unsurprisingly, declined to speculate on what impact the outcome of the case may have on forthcoming changes to the law, in particular those effected by the provision of food information to consumers Regulation (EU) 1169/2011. Jonathan Kirk came prepared to explore these issues, but was discouraged from doing so since they have no relevance to the questions which were before the Court for determination. This will likely be fertile ground for more lawyers on another day. Meanwhile, the Court’s judgement is expected to be handed down in about six weeks’ time so watch this space for the final outcome.


Photo credit: ©Ralf Roletschek (talk) - Fahrradtechnik auf (Own work) [FAL or GFDL 1.2 (], via Wikimedia Commons

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