W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham and Le Cornu
The Attorney General
Christine Glynn Joshua (nee Jones) trading as Le Marinel Products
D. J. Hopwood, Esq., Crown Advocate.
Advocate L. A. Ingram for the Defendant.
THE DEPUTY BAILIFF:
1. On 25th July, 2014, this Court sentenced the defendant to 120 hours' community service on two infractions which she admitted in respect of Article 3 of the Food Safety (Jersey) Law 1966 ("the Food Safety Law"), with costs of £250. The reasons for the sentence were reserved, and this judgment contains those reasons.
2. The defendant is employed as a theatre nurse at the General Hospital but in July 2013 was engaged in the catering business, trading as Le Marinel Products. Her then partner operated a food business at the time known as The Whole Hog, providing hog roasts for events.
3. On Saturday 6th July, 2013, the defendant prepared some mayonnaise, made with uncooked fresh duck eggs, for human consumption at a 40th birthday party held at La Hougue Bie. The following day, she provided similarly some mayonnaise for consumption at domestic premises in Trinity where the guests were celebrating the christening of the son of the hostess. Complaints were made that some of those attending the events had become ill, and in the course of the investigations it became clear that they were victims of food poisoning, suffering from salmonella as a result of the consumption of mayonnaise prepared by the defendant from raw un-heat-treated duck eggs from unvaccinated ducks which she kept at Le Marinel Farm. Approximately 70 guests had attended the 40th birthday party, and some 30 of them had reported that they had been ill after the party. In all a total of 55 people reported illness after attending one of the two functions. Two of those were hospitalised, one a pregnant lady and the other a child with a pre-existing kidney problem. An octogenarian suffered symptoms for over eight weeks. The Court was not informed as to the extent of the illness suffered by the remainder.
4. The very young and the elderly are likely to suffer most from salmonella, as they are immunocompromised individuals. The main complication with the elderly is renal failure and for all these groups, dehydration should be treated robustly. The disease can become invasive with the organism migrating into other areas of the body, which may become life threatening. The disease can cause severe presentations, including meningitis particularly in infants, and septic arthritis. The latter of course is a devastating life changing condition, particularly in young fit individuals for whom it can be most serious. For most people, there is a slow but complete recovery. In the expert evidence put before us it was said that there are about 80 deaths recorded from salmonella per annum in the United Kingdom - these were mostly elderly or very young people.
5. The only previous case of an infraction of the food safety legislation put before us was that of AG v Channel Islands Cooperative Society Limited 1997/8 on 17th January, 1997. The offence charged there was failing to protect food from risk of contamination contrary to Article 8 of the Food Hygiene (General Provisions)(Jersey) Order 1967, by failing to take steps to deal with an active mouse infestation as quickly as reasonable. The assertion was that over a three week period, the defendant company had failed to deal speedily with an infestation of rodents. The Crown moved for the maximum penalty as it was in those days, which was a fine of £100. Sir Philip Bailhache, Bailiff, remarked that the Court expressed the hope that urgent attention would be given to amending the law, and the Court granted the Crown's conclusions. We note that the penalties for breach of the relevant order were increased such that a person guilty of an offence under the order was liable to a fine or imprisonment for a term not exceeding 2 years or both by virtue of an amendment made in May 1997.
6. It would appear that the principal legislation when adopted in 1966 was entitled Food and Drugs (Jersey) Law 1966. The Food Safety (Miscellaneous Provisions) (Jersey) Law 2000 was subsequently adopted and in exercise of the powers conferred by Article 5(1) and Schedule 2 of the Law Revision (Jersey) Law 2003, these two pieces of primary legislation have been amalgamated in what is now entitled the Food Safety (Jersey) Law 1966.
7. At all events, Article 45 of the Food Safety Law now provides that a person guilty of an offence under the law shall, unless a special punishment for that offence is provided by that law, be liable to a fine or to imprisonment for a term not exceeding two years or to both.
8. The offences with which this defendant is charged carry that potential punishment.
9. We were informed that in this case, although the Crown's conclusions would normally have been to move for a fine of £7,500 on each of the two charges with costs of £2,500, the financial information provided by the defendant showed that she simply could not pay a fine of that magnitude. The business had not traded since July 2013, and the defendant has debts and would be rendered homeless in September 2014 albeit she has qualified for housing support. In those circumstances the Crown moved for a fine of £1,000 on each count and a contribution towards prosecution costs of £250. A fine of that magnitude could still only be paid over a considerable period.
10. When this case was first presented to the Court on 27th June, 2014, the Court did not consider that such a fine reflected an appropriate penalty for these offences, which were considered to be serious. Accordingly, the Court remanded the matter for further enquiry by the Probation and Aftercare Service and in particular for assessment of the defendant under the Community Service Scheme. That has now been completed and the defendant was assessed as a suitable candidate for community service.
11. The mitigation for the defendant was quite considerable. She apologised to all. She was remorseful. It was said this was not a deliberate breach of the legislation, and it was certainly not a continuing breach. She had no financial motive, did not obstruct the investigation, had pleaded guilty and was of good character. The business had closed and remained closed, and she had a number of debts. The Court saw some good references for her.
12. The Court was therefore faced with a defendant who had committed on two separate occasions serious offences under the Food Safety Law which attracted a custodial sentence, and which could have caused very serious injury to health, including death; and yet offences committed by a person with all the mitigation which we have outlined.
13. Until 2001, community service was frequently ordered by the Royal Court as a condition of a probation order. For a number of reasons this was not entirely satisfactory, and in 2001 the States adopted the Criminal Justice (Community Service Orders) (Jersey) Law. This legislation makes plain at Article 2 that the jurisdiction to make a community service order arises only where the Court is considering passing a sentence of imprisonment or youth detention. Here the statute provides for a maximum sentence of two years imprisonment, which makes it plain that the offence is treated by the legislature as a serious offence, and indeed the potential consequences in the present case were indeed very serious. In the circumstances the Court was satisfied that we had jurisdiction to impose a community service order.
14. A review of the different offences created by the Food Safety Law shows that there is indeed a range of offending not all of which is serious. Article 21 provides that a dealer in ice-cream who fails to comply with the requirements that his or her name and address is legibly and conspicuously displayed on the stall, vehicle or container from which the ice-cream is sold is liable to a fine not exceeding £200. If the Medical Officer of Health were to give a manufacturer of or dealer in ice-cream a notice that until further notice the ice-cream or substance in question should not be used for human consumption, then the manufacturer or dealer acting in contravention of that notice is liable to a fine not exceeding £1,000. By Article 44, a person who wilfully obstructs any person acting in the execution of the law is liable to a fine not exceeding £2,000 - similarly a person who knowingly makes any misstatement to a person acting in the execution of the law or any order or warrant made or granted thereunder. Thus it follows that when one is looking at Article 3 offences, in respect of which the punishment is laid down by Article 45 as including 2 years' imprisonment, it is appropriate that the Court considers a custodial sentence. That is particularly so in circumstances where the consequences of the offence could be long term serious injury or even death.
15. We take into account in the present case the known facts, namely that a pregnant woman and a child were hospitalised, and that an octogenarian suffered from salmonella for some eight weeks.
16. In the circumstances, the Court considers these offences to have been serious and has sentenced the defendant to 120 hours' community service, concurrent on each charge. The sentence of imprisonment we would have been considering had community service not been available would have been 6 months' imprisonment.
17. Of course in many cases, an offence under Article 3 might be committed by a corporate entity. In such cases, it may be appropriate to look for very substantial fines. Depending upon the circumstances of each case, the Court may well be considering either a custodial sentence or the alternative of community service in cases where there is a personal defendant charged with a serious breach of Article 3, or where the Crown establish against an individual the relevant provisions of Article 46 in connection with the offence by the body corporate.
18. The Court considers that the defendant can afford to make some contribution towards the costs of the prosecution and orders in addition that the defendant pay £250 costs with 6 months to pay.
Food Safety (Jersey) Law 1966.
AG-v-Channel islands Co-Operative Society Limited 1997/8.
Food Hygiene (General Provisions)(Jersey) Order 1967.
Food and Drugs (Jersey) Law 1966.
Food Safety (Miscellaneous Provisions)(Jersey) Law 2000.
Law Revision (Jersey) Law 2003.
Criminal Justice (Community Service Orders) (Jersey) Law 2001.