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Food Safety Sentencing Guidelines Approach

October 13, 2015

In November, it is expected that the full consultation response document and definitive final guidelines will be published for the set of proposals titled “Health and safety offences, corporate manslaughter and food safety and hygiene offences guidelines.” Consultation on these guidelines ran from November of last year until February this year.

This is significant for the food industry, not just in the sense that all developments in food legislation are significant but because these will be the first ever sentencing guidelines in relation to food safety offences. If a person or business is found guilty of committing a food safety offence by a court, then the court will be required to follow these guidelines when handing down a sentence unless it “would be contrary to the interests of justice to do so.”

The format of the original proposals is fairly standard for a set of sentencing guidelines, and this is unlikely to change with the publication of their final, definitive form. Courts firstly assess how seriously companies have failed to meet the required safety standards, ranging from minor mistakes which slipped through a company’s comprehensive safeguards to international-scale breaches of major laws. Then, the court assesses the harm caused to other by these failings. The guideline does not extend to death or very serious harm, as these are uncommon in the food industry, except to say that such cases definitely qualify courts to step outside of the guidelines. As for what is covered by the sentencing guidelines, failings that carry a low- to medium-level risk of causing damage to health are at the bottom of the scale. At the top are cases where widespread harm to health has been caused and acute or chronic conditions.

After these factors have been considered, the court can then turn to the sentencing guidelines to identify a range of fines, depending both on the considerations already made about severity and harm as well as the size of the business in question. For example, businesses with a turnover of less than £2 million are subject to fines ranging from £25,000 to £120,000. For those with a turnover exceeding £50 million, the scale of recommended fines starts at £500,000 and goes up to £3 million. As well as culpability and the extent of harm caused, any mitigating or aggravating factors that exist will also be considered in deciding the exact level at which the fine should be set.

The guidelines relate to certain aspects of the Safety and Hygiene (England) Regulations 2013, specifically Regulation 19(1). This includes a set of offences that relate to international requirements enshrined in EU legislation, including a number of different obligations and responsibilities that food businesses are subject to in order to prevent unsafe food being sold. Almost every kind of business in the food industry is subject to these regulations and will therefore be subject to the sentencing guidelines, from wholesalers to restaurants and retailers.

From a practical point of view, the most significant thing about these sentencing guidelines is that the recommended ranges for fines seem to be set considerably higher than the levels of fine that are commonly received by food businesses at present. Unless the publication of the definitive version and consultation response document reveals very significant changes, this will likely mean food businesses facing harsher penalties for any safety offences. Now may be the time, therefore, for food businesses to review their compliance processes and make sure everything is thoroughly in order.

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