A brief synopsis is given for a selection of criminal cases, and more detail can be supplied if required.
As lead consultant retained by the defence, a successful challenge was mounted in two Crown Court cases where allegations that food produced and sold by the respective defendant companies was the cause of outbreaks of Salmonella food poisoning.
R -v- Khan & Khan (1999)
In R -v- Khan & Khan, (Snaresbrook Crown Court, T99–059, 1999), the Crown alleged that food sold at a doner kebab restaurant was the source of a number of cases of Salmonella food poisoning. Microbiological evidence presented by the prosecution was flawed in that the investigating officer sampled the kebab before it was properly cooked and when it was not at the point of sale; safeguards were not in place to prevent extraneous contamination of the food samples; of the Salmonella found (some days after the alleged food poisoning occurred), there was no evidence that there was sufficient present to cause food poisoning anyway. The defendants were acquitted on the main charges, but found guilty of two lesser charges, one of which was quashed on Appeal.
R -v- Kashioulis (2000)
In the landmark R -v- Kashioulis case (Wood Green Crown Court, T1999–0567, 2000) known as the ‘Oakwood Deli’ case, the Crown alleged that chopped liver produced and sold by the deli was the source of a Salmonella outbreak which affected more than 150 people. At first site, the microbiological and epidemiological evidence against the deli appeared overwhelming, but a careful and painstaking investigation of the evidence demonstrated that the prosecution had made a serious error in the taking of food samples which rendered them unreliable, and had compounded the error by trying to ‘prove’ that their procedure was acceptable. There were also problems with the epidemiological evidence as this had been seriously compromised by a press, television and radio campaign asking for people to come forward who had eaten chopped liver from the deli.
Selling undercooked ham (2001)
This case started with a customer complaining to an Environmental Health Department that some ham bought earlier in the day from the butchers shop was undercooked. The sample was sent to a Public Analyst who found that the ham gave a positive phosphatase reaction and the analyst concluded that the ham was not cooked. This allegation provided the key evidence for other charges: failing to carry out hazard analysis as required by regulation 4(3) of the Food Safety (General Food Hygiene) Regulations 1995, and failure of the owner to be trained.
The investigation commissioned by the defence found that the phosphatase test was an inappropriate test and that the Public Analyst’s evidence was flawed because:
- The Analyst had failed to consider the cooking temperature and how this might have affected the survival or destruction of the phosphatase, nor did he consider the possibility of cross-contamination from phosphatase contained in other foods or bacteria.
- Physical examination (which had not been carried out by the Analyst) showed that the structural changes in the suspect ham were similar to those in cooked ham, and this was confirmed by electron microscopy.
On the basis of the report, the charge was discharged. However, the allegation of selling undercooked ham provided the key evidence for six other charges: failing to carry out hazard analysis as required by regulation 4(3) of the Food Safety (General Food Hygiene) Regulations 1995, and failure of the owner to be trained in food hygiene. Incredibly, the prosecution continued with these charges, but after a seven day hearing, the Magistrates acquitted the butcher.
Mouse infestation (2002)
In another case, a London borough prosecuted a small grocer in connection with an alleged mouse infestation at its premises. Included in the charges was one of selling unfit food (gnawed packets of nuts and biscuits), but there was no evidence that the food had been contaminated by the mice. A critical examination of the evidence, followed by a risk assessment showed that there was little to support the allegation, and the authority withdrew the charge.
Mouldy Bakewell tart (1998)
A baker was prosecuted for selling a mouldy Bakewell tart containing cherry pie filling from a tin. The charge was withdrawn on the second day of the trial after the defence showed that it had a due diligence defence, because the cherry pie filling could have been contaminated at the canning stage, and before it was put into the Bakewell tart.
Defective Improvement Notices (2001)
Two Improvement Notices were issued to a catering business for failing to carry out hazard analysis as required by Regulation 4(3) of the Food Safety (General Food Hygiene) Regulations 1995, in that the company’s written food safety manual allegedly failed to correctly identify each point critical to ensuring food safety, and failed to meet the requirements of the above Regulation. The company appealed, and were supported by an EHO from the company’s Home Authority, but this failed to persuade the Authority to withdraw the Notices. However, a critical review of the company’s food safety manual clearly showed that they had complied with the Regulation and this, together with legal argument, finally persuaded the Authority to withdraw. The company was awarded the majority of its costs, which were very substantial.
Maggot in packet of dried fruit (1995)
A trial over the presence of a maggot in a packet of dried fruit collapsed at midday on the first day, when the prosecution finally accepted that the defendant company had no case to answer. The defence demonstrated that the maggot could have come from a number of sources, many of them not even considered by the prosecution.
Cigarette end in dates (1994)
A food company was prosecuted under the Food Safety Act when a cigarette end was found in one of its products. By demonstrating to the Court that the company had taken all reasonable precautions to remove any foreign matter from its products, and the company received a conditional discharge.