What to do if my restaurant is under investigation for hygiene or food safety offences?

In July 2024 the media reported the case of a restaurant in London’s Mayfair that was forcibly closed and fined over £15,000 after mouse droppings were found in its kitchen.

Environmental health officers discovered poor standards of hygiene during a routine inspection in October 2022. The problem was observed to have worsened during a compliance check four months later. Criminal investigation and prosecution followed.

The negative consequences of hygiene and food safety investigations for food and hospitality businesses such as this can be devastating.

Damage is not limited to a sudden lack of revenue during an enforced closure. Hygiene and food safety investigations can be expensive and time-consuming to deal with. They can drive up insurance premiums; harm reputations and can leave an indelible mark on the record of companies and their directors. They can also result in criminal prosecution, both of businesses and of individual directors.

Below, barrister Tom Bushnell outlines some of the steps business owners caught up in a food safety investigation might take to minimise the harm caused by it.

1. Resolve the initial HEPN closure

The most serious food safety cases (which are those most likely to end in a criminal investigation and prosecution) begin with the enforced closure of the premises.

An Environmental Health Officer (EHO) in England has the power, under the Food Safety and Hygiene (England) Regulations 2013, to issue what is known as a “Hygiene Emergency Prohibition Notice” (“HEPN”) on a business, which forces the business to stop a particular process or (more often) close entirely.

A HEPN is issued when the EHO determines that the “health risk condition” is met. This means that there is a risk of imminent injury to health. This may be due to the state or condition of the business’ premises or equipment. It could also be due to a food production process the business uses. The classic example is when the EHO finds evidence of pest infestation.

When an EHO issues a HEPN, a copy of this notice should be affixed to a prominent place (often, the business’ front door). Knowingly breaching a HEPN is a criminal offence.

Alongside the HEPN, the EHO should outline the steps required to remove the imminent risk. This is usually via a “schedule of works.”

Businesses which receive a HEPN can find themselves in a crisis. They may have to immediately cancel reservations; handle suppliers and staff; and manage the reputational fall-out.

They will also need to quickly decide whether they agree with the EHO’s assessment of the health risk. In many cases, the evidence against them will be incontrovertible. If there is a risk, then the business will need to work quickly to fix it, before inviting the EHO back to re-inspect the premises and lift the HEPN. If there is no risk, the business will likely swiftly seek to challenge the HEPN, potentially through the courts.

2. Attend the magistrates’ court hearing

HEPNs can set in train two distinct enforcement processes which together can comprise an unwelcome “double whammy” for businesses.

The first enforcement process take place at the magistrates’ court. The EHO is required by law to refer their HEPN to the court and should make this application urgently (they may have to pay significant compensation to the business if they fail to do so). There is no guarantee that the court will hear the case quickly.

If the court deals with the case quickly – and the premises remain closed – then the court will be invited by the EHO to find that the health risk condition persists and that it should therefore make a “Hygiene Emergency Prohibition Order” (“HEPO”).

HEPOs have the same effect as the HEPN. Like HEPNs, HEPOs can be lifted once the EHO is satisfied during a reinspection that the risk is no longer present.

If there is a delay, and the premises has been permitted to reopen by the time the magistrates’ court hears the EHO’s application, then the EHO will likely instead seek a retrospective declaration that the original HEPN was justified.

The magistrates’ court hearing is significant in two ways. First, it is an opportunity for the business to address the court (and EHO) about the closure. If the business disagrees with the closure, it can resist this in court and, if successful, the EHO will be required to compensate the business. Whereas if the business accepts the closure was justified, it may feel compelled to make this clear. Either way, the business’s response may influence any criminal investigation that follows. The other significance of the hearing is that if the magistrates’ court agrees with the EHO, the court will almost certainly order that the business pay the EHO’s costs.

3. Prepare for potential criminal investigation

The second enforcement process following an HEPN can be a criminal investigation into an alleged breach of food law.

Businesses often experience an uncomfortable wait, following the imposition of an HEPN, to hear whether a criminal investigation will take place. Whilst EHOs cannot delay forever (there is effectively a 12-month time limit to start a prosecution), it may be a few months until a business is told it is under criminal investigation.

Until that point – and given the risk of potential criminal proceedings – it is advisable for a business to take steps to protect its position. In summary, these are:

• Preserve relevant evidence so the business can understand and explain what policies, procedures and practices it had in place immediately prior to the closure.
• Keep a careful and full record of any changes or work undertaken to put right whatever caused the closure (and prevent a recurrence). The EHO will want to know what has been done before they lift the HEPN; and changes to practice (and the promise that there will not be a recurrence) can provide important mitigation going forward.
• Remain hyper vigilant for further risks. Not only is this the right thing to do for customers and staff; but the EHO is bound to revisit in the future.
• Consider the business’ insurance. Is the business required to inform its insurers of the HEPN? Might its insurance cover the loss of business and associated costs? Might the insurance pay for legal advice during an investigation?

4. Understand food safety law

Food safety law remains a mix of UK law and EU law (now “retained” or “assimilated” by the UK post-Brexit). Allegations made by EHOs against restaurants and other parts of the hospitality trade will often refer to breaches of what is known as “the General Hygiene Regulation” which is Regulation (EC) No 852/2004.

Annex II of this Regulation sets standards that Food Business Operators are required to maintain. These include that “adequate procedures are to be in place to control pests” and “food premises are to be kept clean and maintained in good repair and condition.”

At the same time, regulation 19 of the Food Safety and Hygiene (England) Regulations 2013 (“the 2013 Regulations”) makes it a criminal offence to fail to comply with those EU provisions in England. There are corresponding regulations for other parts of the UK.

A company can be punished by an unlimited fine. Individuals can also be imprisoned for up to two years (although a food safety offence would have to be serious indeed to warrant such a custodial sentence). In practice, guidelines issued by the Sentencing Council tend to dictate the range from which the court chooses its sentence.

Although the starting point under the combined regulations is therefore draconian, this is softened, slightly, by the availability the of a “due diligence” defence.

Regulation 12(1) of the 2013 Regulations, states that “[..] it shall… be a defence to prove that the person accused… took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by the accused or by a person under the control of the accused.”

In other words, it is a defence to show that a food business took all reasonable precautions and exercised all due diligence to avoid the breach. In the case of a pest infestation for example, these might relate to the use of professional pest control services, and strict pest vigilance and cleaning regimens.

Unusually for criminal offences, in these cases, it is for the defendant to prove they took all reasonable precautions and exercised all due diligence, rather than for the prosecution to prove they didn’t.

This means any food business which seeks to rely on the “due diligence” defence must produce evidence to persuade the court on the “balance of probabilities” that the regulation 12(1) defence was made out.

5. Be aware of who exactly might be prosecuted

It is worth flagging two other difficult issues which may arise.

First, some defendant businesses may want to blame others – such as third parties or junior employees – for the offending. This can be a difficult line to tread. While the courts have sometimes permitted corporate defendants a defence in these circumstances, regulation 11 of the 2013 Regulations also makes clear that more than one person can be convicted in relation to the same offending, without both parties needing to be charged.

Seeking to blame someone else may therefore make no difference, or even result in them being charged alongside you. Careful legal and strategic thought is needed when this issue arises.

Secondly, directors of companies under suspicion should be aware that they may be held personally liable for the business’ offending. Regulation 20 of the 2013 Regulations says:

(1) Where an offence under these Regulations which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of —

(a) any director, manager, secretary or other similar officer of the body corporate; or

(b) any person who was purporting to act in any such capacity, that person as well as the body corporate shall be deemed to commit that offence and is liable to be proceeded against and punished accordingly.

In other words, senior individuals who are mixed up in the company’s offences can find themselves personally prosecuted. As well as receiving a criminal record, and potentially being fined, there exists the (slim) possibility of imprisonment.

This makes it particularly important during a food safety investigation that suspects consider who exactly is under investigation (the business only, or senior individuals too?) and tailors its strategy appropriately.

6. Respond to the invitation for interview under caution

As in most criminal cases, the interview under caution is a vitally important stage in the investigation process.

But there are two additional factors that a food business operator will need to weigh up, over and above those that any person under criminal investigation must consider. First, any responsible business will want a positive working relationship with their EHO going forward. The EHO will be back to conduct future food safety inspections and they are a “responsible authority” under the Licensing Act 2003 (and therefore consulted on all applications). Therefore, how a business is perceived by the EHO during its investigation may well be important in the future.

Secondly and similarly, a business under investigation for food safety offences must be realistic about the position the business is starting from, especially if a HEPN was imposed. The EHO may have gained an unduly negative impression of the business based on one disastrous, snapshot inspection. The interview could be an important opportunity to set the record straight and give a better and more complete picture of the business’s operations.

Against that backdrop, a business invited to an interview under caution has several options when responding, each of which has its pros and cons.

First, the business will have to decide whether to attend at the interview at all (it is voluntary). In some cases, it might be appropriate to suggest the business responds in writing (and some EHOs will agree to provide questions in writing for that purpose).

If the business does attend, there will be the choice between answering all questions, answering no questions at all, or providing a pre-written statement at the beginning or end (but not answering any questions).

The best tactic will depend on the circumstances of the case, and my view is that the right choice really can make all the difference in what happens next.

7. Seek to persuade the EHO about next steps

There will come a time at the end of the investigation when the EHO must decide what to do. The best-case scenario for any business will usually be a decision by the EHO to take no further action and close the case. The worst case will be prosecution in the criminal courts.

Between these poles lies a range of outcomes. EHOs should use a local enforcement policy to guide their decision making. But at the cornerstone of all enforcement policies should be proportionality: i.e. taking the least severe action required by the case.

A business under investigation will therefore want to consider whether there is anything it can or should say or do to persuade the EHO to reach a particular decision.

If both the company and its directors have been under investigation, it might be appropriate to ask the EHO only to act against one. Or, if the company admits committing the hygiene offences but believes there were mitigating circumstances, it might suggest accepting a simple caution (an out of court disposal, by which the suspect’s admitted guilt is recorded and held on their record, but they are not prosecuted).

Carefully tailored representations to an EHO who is willing to listen can make a real difference here.

8. Take it seriously

Food safety investigations can profoundly impact businesses in the hospitality sector, even if they don’t lead to prosecution.

These cases have their own characteristics which set them apart from other criminal investigations: from the potential for parallel HEPN proceedings, to the need to consider the future relationship between business and its investigator.

At every stage in these cases the food or hospitality business under the spotlight has important choices to make. Generally speaking, with each of these choices comes the opportunity – hopefully – to change the course of the investigation for the better.

Tom Bushnell is an associate barrister in Hickman & Rose’s business crime and regulation team. He has represented successful individuals and businesses in food safety investigations in both the hospitality and food production sectors.

Before joining Hickman & Rose, Tom was an independent barrister with a busy licensing practice. He represented a wide array of licensed operators, including bars, restaurants, takeaways and events spaces, and is therefore particularly well-placed to assist when these businesses face criminal investigations.