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21 Feb 2013

Corker Binning partner comments on horsemeat saga

In an article in The Times, Nicola Finnerty, partner, Corker Binning, comments on the criminal implications of the latest food scandal to hit the headlines.

Horsemeat: who are the real culprits?

EU laws must be properly policed to avoid a repeat of the latest food scandal, says Edward Fennell

You do not have to be a UKIP supporter to concede that Stuart Agnew, MEP, UKIP’s spokesperson on agriculture, has a point when he argues that the horsemeat scandal is “the product of the Single Market”. And he is not wrong, either, to say that the single market means that the UK cannot ban the importation of a product from anywhere within the EU. “What we have is a marketplace where anything can come from anywhere, and often does, without proper controls.”

So while lamb coming into Britain from, say, New Zealand will be inspected on the dockside, meat products from within the EU will be waved through on the basis of the free movement of goods.

But amid all the finger-pointing — whether at the EU, sloppy retailers or the Government itself — it must not be forgotten that the real culprits (almost certainly) are the deliberate perpetrators of food fraud, whether on the continent or here within the UK. And that, as Nicola Finnerty, of Corker Binning, says, makes this a criminal matter. “Throughout the food chain there is the need for certification and identification of meat products,” she says. “So for horse meat to have got through the chain these certificates must have been forged at some stage.”

In theory, then, it should be possible for the authorities to track back and pinpoint where the forgeries took place. “It will then be open for British prosecutors to press for the extradition of those responsible so that they can face trial in this country,” she says, adding that a European Arrest Warrant should facilitate the process. “This scandal is so high profile now that this is a real possibility.”

That criminality is the key central issue was not lost on Owen Paterson, the Environment Secretary, who last week welcomed the involvement of Europol in tracking down the culprits. “This is an incredibly important step,” he said. “It’s increasingly clear that this case reaches right across Europe. It’s clear that Europol is the right organisation to coordinate efforts to uncover all wrongdoing and bring criminals to justice, wherever they may be.”

So whichever way you look at it — whether for problems or solutions — this has to be seen in a European context. As Nicky Loadsman of Bond Pearce says, the legal context of this scandal is provided by the General Food Law Regulation (EC) 178/2002, which was adopted by the European Parliament and the Council back in 2002. This aimed to provide “a framework to ensure a coherent approach in the development of food legislation’ and “to harmonise existing national requirements in order to ensure the free movement of food and feed in the EU”. The effect in the UK, continues Loadsman, was the amendment of the 1990 Food Safety Act to make it compliant with EU requirements.

What this meant in practical terms was that the primary responsibility for ensuring compliance with food law, and in particular the safety of the food, was placed on the food business itself.

And that is why Owen Patterson could warn last week: “Food businesses now have a lot of work to do. They need to move quickly to complete these tests and they need to show their customers they’ve taken the right steps to make sure this doesn’t happen again.”

Does that mean that the UK Government, and indeed other EU Governments, are off the moral hook? With the burden on the shoulders of business is the Government free of embarrassment? Not quite.

Kathryn Gilbertson of Greenwoods Solicitors confirms that the system trusts businesses to behave responsibly and honestly. But even the EU is not naive enough to believe this is sufficient. So the directive adds that to complement and support this principle, “There must be adequate and effective controls organised by the competent authorities of the member states.”

So has the UK had “adequate and effective controls”? Gilbertson, a former environmental health officer before she qualified as a solicitor, has seen at first hand by how much the level of policing has declined.

“Since the publication of Illegal Meat: Guidance for Local Enforcement Authorities in England, published by the Food Standards Agency in 2009, local authorities have taken their eye off the ball,” she says. “For example, there used to be regular sampling of meat, but over the past three years or so the authorities have chosen not to do it. Instead they are relying on the third party auditors, such as BRC auditors, to do the checks.”

But Loadsman has some sympathy for local authorities. “The myriad of legislative amendments required as a result of regulations emanating from the EU has no doubt compounded difficulties for the enforcing authorities particularly in view of the budgetary cuts at local authority level,” she says.

What next? Successful prosecutions and prison sentences may act as a deterrent to the fraudsters, but it is clear that institutional complacency and the turning of blind eyes by purchasers have compounded the problem.

Already a new EU law on food information to consumers is scheduled to come into effect next year. Without proper policing, though, will even this do what it sets out to achieve?