Sentencing guidelines toughened for food safety offences
The Sentencing Council published guidelines on Health and Safety, Corporate Manslaughter and Food Safety and Hygiene offences after a consultation and they will come into force in courts on 1 February 2016.
They apply to companies or individuals (aged 18 and older) sentenced on or after 1 February 2016, regardless of offence date.
Large operators that commit a food safety offence with a serious adverse effect on human health with high culpability will see a sentencing range of £500,000-£3m.
Previous guidelines did not cover food safety and hygiene offences.
The turnover of the offender is used to identify the starting point of the fine but profit margin of the organisation, potential impact on employees, or potential impact on the firm’s ability to improve conditions or make restitution to victims are among other factors considered.
Law firm Shoosmiths said responses to the consultation included whether linking fines to turnover was 'too rigid and overly simplistic' and would lead to firms of varying sizes receiving grossly different fines for similar incidents.
However, it added the council has adopted the approach saying it accepts using turnover to determine the size of a business is ‘something of a blunt instrument’ but believes the overall sentencing process in the guideline gives the flexibility needed to ensure justice is served.
Food safety offences
Offences under the guidelines are varied and include a restaurant that causes an outbreak of E. coli through unsafe food preparation or a manufacturer that causes injury to a new worker by not providing training for operating machinery.
According to law firm Eversheds, the key changes for food safety offences are that the most serious level of harm has been broadened to include not only where there has been a serious adverse effect on individuals but also where there is a high risk of an adverse effect, harm now includes where a consumer has been misled regarding a food’s compliance with religious or personal beliefs and factors relevant for mitigation have been reduced.
They cover food safety and hygiene offences including placing unsafe food on the market, inadequate traceability, recalls and withdrawals, failure to adopt systems based on HACCP principles and misleading consumers through labelling, advertising and presentation of food.
“A key change in the guidelines is to the list of mitigating features which now excludes any evidence that the business or individual has effective food safety and hygiene procedures in place or evidence of any steps taken to remedy the problem,” said Eversheds.
“Therefore where a business may have fallen just short of establishing a due diligence defence; evidence of its systems and procedures will no longer be considered a mitigating feature.”
Rod Ainsworth, director of Regulatory and Legal Strategy at the Food Standards Agency, welcomed the guidelines.
“They will ensure that there is consistency in sentencing for food safety and food hygiene offences across the country. They will also ensure that offenders are sentenced fairly and proportionately in the interests of consumers.”
Will fines increase?
The Sentencing Council said it is not anticipated there will be higher fines across the board, or that they will be significantly higher in the majority of cases compared to current ones.
However, the increase in penalties for serious offending was introduced because in the past, some offenders did not receive fines that properly reflected the crimes committed.
Eversheds said the concept of imposing higher fines is not new but it expects the guidelines will increase the levels dramatically.
“The guidelines are arguably cynical; they are based on the premise that dutyholders will take health and safety and food safety more seriously if the penalties are higher,” it said.
“Those organisations that react to the guidelines and bring it to the attention of senior managers will most likely be those that have robust procedures. Those organisations that are ignorant of the guidelines will be in for an unwelcome surprise.”
The Sentencing Council said until now, there had been limited guidance for judges and magistrates in dealing with complex and serious offences that do not come before the courts as frequently as some other criminal offences.
Shoosmiths said the guidelines set out steps the sentencing court will need to go through to establish the appropriate fine.
“Firstly, the court will need to determine the category of offence. This is based on two stages, the level of culpability and the level of harm,” it added.
“Secondly, starting points (which apply to all offenders, whether they have pleaded guilty or been convicted after trial) define the position within a category range from which to start calculating the provisional sentence.
“The court is required to focus on the organisation's annual turnover or equivalent to reach a starting point for a fine. The court then consider further features of the offence or the offender that warrant adjustment of the sentence within the range, including aggravating and mitigating factors.
“Credit for a guilty plea is taken into consideration only after the appropriate sentence has been identified.”
