EHJ August 2004, pages 236-239
In the last few months, the profession has watched the courts hand out paltry sentences for meat crimes. Stuart Spear asks if it is time to get tough on criminals looking to make a quick killing

Behind shutters in a darkened room, overlooking Hackney's Ridley Road market in northeast London, EHPs and police are waiting for a blue transit van. There has been a tip off, one of hundreds of tip offs as traders selling meat to the capital's ethnic communities try to put each other out of business.

Smokies will be arriving from Wales on Thursday night at a central drop off point in the market and distributed to shops around the city. Thursday night to ensure that the illegally slaughtered goat and sheep carcasses, that have been singed using blow torches, will be in the shops for the thriving weekend trade.

A white van swings into view and stops at the drop off point. Two Asian men step up next to the van to move the driver on. They turn, look up at the observation point and wave. It's time for the EHPs to pack up and call it a day. The illegal meat traders have been tipped off about the tip off. And so the game of cat and mouse goes on as EHPs try vainly to stem the tide of illegal meat arriving in the capital each week.

The demand for this west African delicacy is huge, as are the profits for those willing to break food safety law. Also, the risks of being caught and fined more than a week's worth of profits are minimal for the ringleaders. Meat crime is a lucrative business, and compared to crimes like drug dealing, counterfeiting or arms smuggling, the penalties for food offences are small - two years custodial and unlimited fines at crown court with a maximum six-month sentence and £20,000 fine in the magistrates. These maximum sentences are rarely, if ever, handed out.

But the smokie trade is just one of many meat crimes. Dr Yunes Teinaz, now senior EHO at Hackney LBC, who has for years been at the forefront of a campaign to stamp out this illegal trade, believes that inadequate penalties for food safety offences are now attracting criminals to move away from other crimes into smuggling unfit food from Europe. Following food safety warnings in Belgium or Paris, he is finding the products on sale in London and probably around the country. "We are finding out-of-date sausages from Europe, food with high colouring content, spices that have had hazard warnings, and increasingly unfit food from eastern and western Europe is turning up in our markets," says Dr Teinaz.

Evidence that the courts are failing to take food crime seriously is legion. Just last month in separate cases, a New York man and a Gambian woman were fined £300 and £150 respectively for importing illegal food products. The sentences were condemned as "pathetic" by Farmers Union of Wales president Gareth Vaughan who said after sentencing: "It makes my blood boil to see the hard work of enforcement agencies fall at the final hurdle because the courts don't recognise the potential health risks posed by meat products."

There was further disquiet over sentencing last month when one of the Welsh farmers thought to be behind much of London's illegal smokie trade received a six-month suspended sentence and a £3,000 fine after admitting the sale and production of the African delicacy. In a similar case in Carmarthenshire, two defendants received a £1,000 fine and a six-month curfew after EHPs raided a farm and found 76 carcasses at an illegal smokie plant. In another case, eight men caught red handed slaughtering sheep for smokies were given 540 hours community service between them.

But many EHPs believe that it is not just the size of sentences being issued by the courts that is failing to stem food crimes. Over the last few years, two of the UK's biggest meat crimes to be unearthed, operations Fox and Aberdeen revealed the inadequacy of sentencing under food safety law and the extraordinary resource implications of trying to prove a case under the alternative offence of conspiracy to defraud. Rotherham DC's Operation Fox resulted in a meat-fraud gang receiving combined sentences of 18 years for diverting 1,000 tonnes of rotten pet food meat into the food chain. While being heralded as a major success, the resource implications were staggering. Fifty clerical staff, 26 CID officers, 20 barristers and 400,000 computerised exhibits had to be collated over four years to prove the conspiracy case, which investigating EHPs believe stretched back to the late 1980s.

Similarly, in Operation Aberdeen, involving the sale of 450 tonnes of diseased poultry through networks across the country into high street supermarkets, schools and retail outlets, proving conspiracy meant resources were sucked up. "Conspiracy offences take a lot longer because you not only have to prove there was a chain of command where food was being passed from one to another but also that they conspired to do that," explained Steve Haslam, the EHP from Amber Valley DC who was seconded to the police for 18 months to help build a case against the ring leaders. "Most of the lawyers did not deny an offence had been committed. What they denied was a conspiracy to do it. That each person was acting in isolation." Six-out-of-10 defendants were convicted with custodial sentences totalling six years.

Despite all those involved in each of these high profile cases calling for a new offence that would rely less on police resourcing, the Food Standards Agency is staunchly refusing to budge both in terms of sentencing tariffs and the introduction of a new meat crime offence. The FSA's decision also flies in the face of the Waste Food Task Force's recommendations, along with calls from the profession, CIEH and Lacors for a new offence. The FSA is convinced there is no sound argument for such a move. The agency's line is that it would be impossible to amend the existing Food Safety Act and introduce a new meat offence because we are hidebound by EU regulations. Under article 14 of the EU General Food Law Regulations, it is an offence to provide food on the market that is unsafe. FSA lawyers argue that to introduce a new offence would be an "occupied field" and so not be allowed under EU law.

As for increasing tariffs under the existing legislation, the FSA believes that magistrates and judges have to be persuaded to use the existing tariffs before sentences should be increased. The argument against introducing new primary legislation is that the conspiracy charge is adequate and there is no political will to introduce a new offence.

"Magistrates don't exercise the full penalty, so it would be pointless to increase these penalties further when they are not using the existing ones and at the higher end of the scale there is conspiracy to defraud which carries very strong penalties," said an FSA spokesperson. The agency has been trying to educate magistrates on the potential seriousness of food offences in a bid to increase sentencing and also points to a memorandum of understanding between the Association of Chief Police Officers and the FSA. This, claims the FSA, commits the police to helping investigate meat crime when resources allow.

But for supporters of a new offence, the resourcing caveat is the nub of the problem. Detective chief inspector Neil Perry who headed up the Derbyshire police investigation into Amber Valley's Operation Aberdeen says he would seriously think twice about getting involved in such a case again. What was supposed to be six weeks of police support turned into an 18-month investigation costing the police £1.75m. "We could have gone on forever if we had followed it through but we had to draw a line at some point, we had three strikes of warrants and we could have gone on again but it was just getting too massive," explained DCI Perry.

He is also scathing about the level of support offered by the FSA, which, he claims, was failing to help track down where the condemned meat was being sold. This led to resentment among the police who felt they were doing the FSA's job. "We were arresting people for selling contaminated meat and it was still on the shelves. It was very disappointing," DCI Perry told EHJ. "The FSA was lackadaisical. It failed to see the importance of this crime. We kept saying this is a major problem, so we invited the FSA to our incident room and they could not believe the amount of meat involved and the scale of the profits."

Since then, the FSA has set up the Illegal Meat Task Force to support local authority or police investigations. But according to DCI Perry, the Amber Valley experience has made police shy away from being involved: "It is surprising how many forces are now saying 'I am sorry but we do not have the resources to deal with this'," he said.

A case that illustrates the resourcing dilemma cropped up in south Norfolk after Operation Aberdeen when a father and son were found to have been supplying condemned meat into the food chain for up to 15 years. In a raid on Bungalow Farm, Tibenham, Norfolk, EHPs removed nine tonnes of condemned food that was destined for restaurants, butchers' shops and markets throughout Norfolk.

Unfortunately for South Norfolk DC, two months into the case, the Crown Prosecution Service pulled the plug and said they were not willing to proceed under a conspiracy charge. Sue Nixon, the senior EHO who led the investigation, believes that fears about resourcing may have been behind the decision. "We would have taken the case under conspiracy, it is just that we are not geared up for it. It is something we are not used to using so we had to rely on police involvement."

With the police out of the frame, South Norfolk DC had to fall back on the Food Safety Act. Despite the case being sent to the crown court because magistrates felt they had insufficient powers, the prosecution resulted in Michael Bloomfield serving two months while his son Darren received 100 hours community service and had to pay £350 costs.

According to Jonathan Goulding, a barrister who regularly handles food safety cases for Gough Square Chambers in London, the problem with using the Food Safety Act for these types of cases is that when parliament enacted the bill it never envisaged it would be used for food crimes. "What they are aiming at in this legislation is food so contaminated that it would be unfit for human consumption. I don't think when the legislation was drawn up, it was envisaged that people would be trying to put food unfit for pets into the food chain. So, it is difficult to charge someone doing large scale crime under section 8 of the Food Safety Act."

He believes one of the biggest stumbling blocks to successfully prosecuting large-scale food crime under the existing Food Safety Act is proving the scale of the crime. While it may be easy to prove that one consignment of 200 boxes of chicken was unfit for human consumption, were all the boxes unfit? "It does not take a shrewd legal adviser long to attack a general charge alleging that all 200 boxes are unfit as being an unsound count if it might be shown that some of the food was fit," explained Mr Goulding.

He believes that sentencing under the Food Safety Act could be increased to between five and seven years. A precedent for such a tariff for a strict liability offence already exists under the Trade Marks Act 1994, which carries a maximum sentence of 10 years for the sale of counterfeit goods. He believes that the FSA argument that the courts are failing to use existing sentencing powers and therefore should not be given additional tariffs does not hold water.

"The reason courts do not impose sentences anywhere near the maximum is because the sorts of cases they generally deal with, do not deserve sentences approaching the maximum. If they did, they would. Also, they often deal with companies, which cannot be sent to prison, but there are many examples of companies receiving large fines."

As for taking offences under conspiracy, it is not just police resources, which pose the problem. "The whole idea behind food offences is strict liability," explains Mr Goulding. "Once you get into conspiracy cases you have to prove intent to defraud, so immediately you make it easier for a defendant than if you were trying to prove what is seen as a less culpable offence."

Many of these views are shared by John Pointing, a barrister practising from Field Court Chambers who has dealt with a number of cases involving the illegal smokie trade, which is thought to generate millions in profits for its ringleaders. He believes that a new offence could be drawn up dealing with meat crime as a business where criminal intent would have to be proven, along with a charge of recklessness for supplying unfit food to the public, similar to a drugs offence. For this to work, the new legislation would also have to provide greater powers of seizure, along with powers of arrest for the police in these types of cases. But he believes it may not be until a direct link between this sort of criminal activity and the death of innocent victims can be proven that action will be taken. "Sometimes it needs that kind of jolt to get the weight of public opinion behind a cause, rather similar to BSE," said Mr Pointing.