No: 2005/02506/C2
Neutral Citation Number: [2006] EWCA Crim 109
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday, 18 January 2006

B e f o r e:

LORD  JUSTICE  LATHAM

MR  JUSTICE  BURTON

THE  RECORDER  OF  LONDON
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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MIGUEL  MARTIN

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MR N LEY appeared on behalf of THE APPLICANT

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J U D G M E N T

Wednesday, 18 January 2006

LORD JUSTICE LATHAM:  I will ask Mr Justice Burton to give the judgment of the court.

MR JUSTICE BURTON:

1.	This case has been concerned with the carrying on of a butcher's business.  The applicant has been carrying on business at 117 Camden High Street, London NW1, for some time.  The requirement of the Food Safety (General Food Hygiene) Regulations 1995 is that one who carries on business by way of a butcher's shop must have a licence.  Such a licence is applicable by reference to the Regulations as follows.  By paragraph 6(1) if any person contravenes paragraph 4A he shall be guilty of an offence under the Regulations.  Paragraph 4A provides that Schedule 1A shall have effect relating to the licensing of butchers shops.  Schedule 1A provides as follows:

"1.  The following definitions shall apply for the purposes of this Schedule --

....

'butcher's shop' means the premises of a food business in or from which --

(a)	commercial operations are carried out in relation to unwrapped raw meat; and

(b)	raw meat and ready to eat food are both placed on the market for sale or supply;

other than catering premises" 

which it is common ground this shop was not.  Similarly, by paragraph 1 of Schedule 1A there are definitions both of "raw meat" and of "ready to eat" food:

"'raw meat' means meat which is not ready to eat food;

'ready to eat food' means any food for consumption without further treatment or processing;"

2.	On 27 April 2005, in the Crown Court at Snaresbrook, after a ruling by His Honour Judge Khayat QC that the applicant was using premises for the purposes of a butcher's shop as defined in Schedule 1A, the applicant pleaded guilty.  He was sentenced to pay a fine of £3,000 and ordered to pay £4,660 towards the costs of the prosecution.  

3.	The facts are as follows.  On 28 May 2003, two Environmental Health Officers employed by the London Borough of Camden within the Food Safety Team together with police officers had gone to his premises.  There they saw, on the one hand, unwrapped red and white meat, and, on the other hand, in the freezer a 5 litre can of ice cream together with packs of Seafood Cocktail (containing cooked mussels, crab-flavour fish bites, cockles and prawns), New Zealand Greenshell frozen cooked mussels and North Atlantic frozen peeled and cooked prawns.  There were thus, in the same premises for sale, both raw meet and frozen cooked "fish-meat".

4.	It was in the light of those admitted facts that there was a submission made by Mr Ley, who then acted, as he has today, on behalf of the applicant, that those facts ought not to satisfy a court that there was a carrying on of a business as a butcher's shop.  His submission was that the frozen fish in the freezer did not amount to "ready to eat" food within Schedule 1A of the regulations.  The trial judge determined otherwise.  In his ruling the judge came to two conclusions.  First, he said:

".... I come back to the argument placed by counsel for the defence that ready to eat food means ready to eat there and then.  I totally reject that.  That does not make sense at all.  Nor would any person in the street say, well, if something is ready to eat, it means he has got to open it and be able to eat it there and then.  If for no other reason, one looks to the definition of a butcher's shop and it excludes from it catering premises.  That is the starting point which shows that a distinction has been made.  Ready to eat food does not mean that it has to be eaten there and then."

Secondly, and more significantly, the judge said this:

".... it is really quite clearly open to someone to take the frozen items, wait a little while until they become soft enough to eat and then eat them.  By no stretch of the imagination, if you are seen doing that, namely waiting for it to defrost, with someone looking on over your shoulder to say to you, 'Oh, you are treating those prawns' or 'You are processing them'.  You are doing nothing of the sort, you are merely waiting."

5.	Mr Ley's submission is that the trial judge erred in law in the conclusion that he reached that the frozen fish-meat was "ready to eat" food within the meaning of the Regulations.  He drew the judge's attention, as indeed did the prosecution (each relying on the case for their own purposes) to a short report of Hodder v DPP and Matthews v DPP [1990] Crim LR 261.  Mr Ley submitted, as he has submitted before us, that that case assists him in support of the proposition that defrosting is a process or treatment.  In that case, which related to "magic mushrooms" the defendants had in their possession mushrooms which they had picked, separated into packages and stored in a fridge-freezer.  They were convicted at first instance in the magistrates' court in relation to possession of those mushrooms.  That conclusion was reached pursuant to the relevant statutory provision under the Misuse of Drugs Act 1971 (not the same provision as that with which we are concerned).  They appealed on the basis that freezing the mushrooms was not an act of preparation, but of preservation.  Their case was that simply freezing the mushrooms did not amount to an act of preparation.  It would appear from the reported findings of the Divisional Court that that argument was successful.  It was accepted by the Divisional Court that an act of freezing (and by analogy the reverse purpose of de-freezing or defrosting) was not an act of preparation; but because of the alternative basis upon which the defendants could be convicted, the appeal was dismissed, because the mushrooms "as picked, packaged and frozen" were clearly a product under paragraph 5 of Schedule 2, Part I of the 1971 Act, which specified a "preparation or other product".  In those circumstances the conviction was upheld.

6.	Much as we have sought to understand Mr Ley's submissions before us, we do not see how that case assists him.  Rather, insofar as it is relevant at all (and of course the words of that Act are different), it would appear to support the proposition that freezing (and consequently de-freezing) is not an act of preparation; and if not an act of preparation, then it is not a process or a treatment.

7.	The only other authority to which Mr Ley has drawn our attention is R v Cunliffe [1986] Crim LR 547 in which, not surprisingly, the court there found that the reducing of mushrooms by heat treatment to a dust or powder was an act of preparation.

8.	We are satisfied that there is no arguable case that the frozen prawns and fish in this case were not "ready to eat" food.  We are so satisfied for two reasons.  First, like the trial judge, we are clear that simply to have to defrost (or de-freeze) food would not amount to a treatment or process.  Just as the judge indicated, it appears to us that if, as indeed would be the case, all that would be necessary would be to take the prawns out of the freezer and leave them for an hour or so before they became eatable, but would not amount to a process or a treatment.  Mr Ley is, in our judgment, misguided in suggesting that because there may be some kind of chemical change in relation to something which is either heated up or cooled down, that that would amount to a process or treatment.  Of course it would be possible to apply some kind of process or treatment, but wholly unnecessary.

9.	Secondly, as Mr Ley conceded in the course of argument (although he did not appear to accept the logical consequence of his concession), for the purposes of the Regulation there are only two alternatives in relation to which this food could be defined: either "raw meat", which means food which is not ready to eat; or "ready to eat" food, as defined in the Regulation.  The very fact that "raw meat" is defined by being the reverse of "ready to eat" food makes it plain that there are only two such categories.

10.	In those circumstances the important question to ask in relation to a definition of whether food is ready to eat is: What is it if it is not ready to eat?  It is quite plain that the prawns were not raw meat.  They were food which was all fully prepared, save only for being left to warm up.  

11.	We are satisfied that the trial judge was plainly right to conclude that the frozen fish-meat in this case was "ready to eat" food, and insofar as he added that the definition "ready to eat food" does not mean ready to eat there and then, he was right so to conclude.  In those circumstances there is no arguable basis for interfering with the judge's ruling and the plea of guilty was properly entered on the basis of that ruling.

12.	The application for leave to appeal against sentence falls specifically into two parts, by way of challenge to the fine and by way of challenge to the order for costs.  In this context it is of some significance that although the judge did not "hold the previous offences against" the applicant, nevertheless there were previous matters in respect of which he had only recently been dealt with.  On 29 May 2003, at Highbury Magistrates' Court, he had been fined in respect of five offences under the Regulations and under the Food Safety Act, a total of £11,000, and ordered to pay costs of £4,000.  On 26 February 2004, a further offence under the Food Safety Act led to a fine of £3,000 and costs of £3,305.  

13.	Plainly this offence of itself, quite apart from the context of its earlier matters which the judge said he would not hold against the appellant, would merit a fine of at least the sum of £3,000.  There is no challenge by Mr Ley to the quantum on the basis that it was too high.  The only basis on which he could seek to challenge it is on the principle that a fine should not be imposed which is beyond the means of a defendant to pay.  Mr Ley refers to the fact that the judge said this:

"I have looked at the profit and loss account dated 5th January 2004.  I do not necessarily accept everything that is in it, but it does show you have put down a gross profit of £123,655.89."

Mr Ley submits that it was wrong in principle to impose a fine by reference to "gross profit", and that net profit would have led to a much smaller appreciation of the amount available from the applicant's business.  However, that does not result in any kind of argument of principle.  What Mr Ley would need to have established before the judge, and plainly did not and does not even seek to attempt to put before us by way of any additional evidence, was to show that the applicant did not have the means or the assets to meet the fine of £3,000 and that it was a sum with which it was impossible for him to comply.  All that Mr Ley said (and says) is that he had to find £100 per week as a result of the existing fines imposed by the magistrates' court.  He submits that it is to be implied, by virtue of the fact that there must have been some means inquiry in the magistrates' court, that that was all the applicant was in a position to pay.

14.	In our judgment there is no basis for challenge to the judge's conclusion, absent evidence put before him, which it was not, that the applicant's means, other than by reference to the business, would not have permitted him to find the sum in question.  In any event, in our judgment, £3,000 does not begin to come into the category of manifestly excessive in the circumstances.

15.	So far as costs are concerned, the imposition of the costs follows the pattern that had occurred on the two previous occasions to which we have already referred of fine plus costs.  The prosecution put before the Crown Court a schedule of their costs by way of expenditure up to the first hearing by the Food Safety Team and the legal department, up to the committal by the legal department, and then from the committal to the trial date, including, it appears, two pre-trial reviews and an aborted initial hearing.  It does not appear that any specific challenge was made by Mr Ley to the content of that schedule below.  Whether or not he had the opportunity is unclear to us, but certainly no argument was put forward.  The judge appears to have accepted that those sums were both expended (and Mr Ley puts forward no challenge to their having been expended) and were reasonable.  The question that the judge asked himself is set out as follows in his sentencing remarks:

"So far as the costs are concerned, I have considered them.  I have stated the principle which I apply in the circumstances, namely: Are they reasonable in the circumstances?  I am satisfied that they are reasonable."

Mr Ley accepts that, unless he can establish some point of principle, the only basis on which he could hope to succeed would be that no reasonable court could have concluded that the costs were reasonable (ie that they were Wednesbury unreasonable).  
16.	We are satisfied that there are not the beginnings of such an argument in this case.  The primary way in which Mr Ley puts his argument is by reference to a decision of the Divisional Court in Griffiths v Pembrokeshire County Council [2000] EWHC Admin 319 (31 March 2000), when in his judgment Kennedy LJ said:

"8.  .... I regard the legal aid scale fees payable to solicitors and counsel as a useful marker as to the fees that it would be reasonable to expect an unsuccessful appellant to pay."

That related to the costs of solicitors and counsel in the Crown Court.  It is not directly analogous with the case here, where a substantial amount of the costs related to the work of Environmental Health Officers at an asserted rate of £55 per hour.  Mr Ley does not submit that Kennedy LJ lays down any kind of rule of law or principle that in order to be reasonable costs must be analogous with a legal aid scale fee.  The highest that can be said is that legal aid fees, if available, are a useful marker for reasonableness.

17.	In our judgment this does not establish any new or separate principle to the first one, namely that the only basis on which the order for costs could be interfered with is if it is apparent that the judge's conclusion that these costs were reasonable was itself unreasonable.  We have been shown nothing which indicates to us that the kind of figures which were included in the schedule are so out of line with normality or with some kind of analogy to legal aid costs that it would be unreasonable of the court to have accepted them.  They are in line with the previous costs orders made.  The fact that there was no appeal against those does not take the matter one way or the other.  

18.	At the end of the day the judge's task was to consider whether the costs sought were reasonable.  He concluded that they were.  It is not, in our judgment, arguable that there was any basis upon which that conclusion of the judge could be challenged.  

19.	This was a substantial sum that was levied by way of costs and fine in its totality, but it was not manifestly excessive in respect of the offence and in the light of the previous circumstances.  This applicant remains, as far as we understand it from Mr Ley, in business.  He will need to take time to pay the sums due, but that is not a matter for us.

20.	In those circumstances this application for leave to appeal against sentence is refused.