The recent conviction of a national operator for placing unsafe food on the market following an incident of food poisoning in December 2012 and which resulted in a total of 33 diners becoming ill and one tragically dying, should be a shot across the bows to ALL operators who provide food. The conviction should also further focus operators' minds given the current Sentencing Council's consultation on, amongst other things, food safety and hygiene offences which will result in much stiffer penalties for similar offences in the future.

Background

On Christmas Day 2012 the Railway Hotel in Hornchurch, East London served lunch to over 120 customers.

The turkeys prepared the day before were not cooled properly after cooking and not adequately reheated before being served to the guests. As a consequence, 33 of these customers suffered food poisoning and one tragically died.

The owner of the premises was charged with failing to comply with requirements of Article 14(1) of Regulation (EC) 178/2002 by placing food on the market that was unsafe, and unfit for human consumption. The chef and landlady of the premises were charged with placing unsafe food on the market, and perverting the course of justice.

Early on in the trial, the company accepted that they placed unsafe turkey meat on the market but then argued that they took all reasonable precautions to prevent the offence. This would have meant that the company would not be found guilty if the jury had accepted that they had taken all reasonable precautions.

The court was told food safety records had not been filled in and that a plan was concocted to falsify these. Evidence was provided to the court that due diligence logs were retrospectively filled in before health inspectors could carry out an investigation

In sentencing both the owner and landlords of the premises His Honour Judge Alastair Hammerton said that the evidence revealed "systematic failings" in record keeping and that the landlady of the premises was "in charge and in control of the cover-up" and that the food safety records relating to the cooking of turkey meat had been fabricated.

The owners of the premises were criticised by the judge for having taken  "manifestly inadequate steps" to address the risks of inadequate cooking, cooling and reheating of turkey and that new cooking instructions were not adequately passed on to staff, and the company fell "significantly short" of appropriate standards.

The owner of the premises was fined £1,500,000.

The chef and landlady were sentenced to 12 and 18 months respectively for perverting the course of justice. They were however acquitted of a charge of placing unsafe food on the market.

Sentencing Council Consultation 

A current consultation on "Health and safety offences, corporate manslaughter and food safety and hygiene offences guidelines" is due to close on the 18th February. A copy of the consultation can be found here.

In consulting the Council’s aim is to "help ensure a consistent approach to sentencing, allowing fair and proportionate sentences across the board, with some of the most serious offenders facing tougher penalties."

In future, starting points for fines in this area will:

  • reflect the seriousness of the offence (including the extent to which the offender fell below the required standard) and take into account the financial circumstances of the offender;
  • meet, in a fair and proportionate way, the aims of punishment and deterrence and removal of gain; and are
  • Sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to operate within the law.

The consequence of the proposals, had the proposed guidelines been in place at the time this matter came to trial, is that it is not unreasonable to assume that the level of fine for the corporate entity would have been greatly in excess of £1,500,000.

The proposed guidelines recommend a fine of a level up to £3,000,000 for similar offences, with a further caveat that “where the defendant organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence.”

It is likely that had the proposals contained within the current consultation already been adopted that the company would have faced an even higher fine than the £1,500,000.00 imposed.

What should you be doing?

The recent conviction and the proposed changes in the sentencing guidelines in this area is a timely reminder to operators to review existing systems. Operators should be asking themselves the following questions and, if there are any perceived shortcomings or deficiencies, take urgent action to address them.

  • Does your operation have all the appropriate food safety practices (to include but not limited to food handling, preparation, storage, service of food to the public) in place?
  • Are these properly recorded in your business?
  • Are the processes properly passed on to staff, with regular training updates provided?
  • Is all training properly recorded?
  • Is there an audit trail to show that all processes and staff training are regularly reviewed, and
  • Where there are deficiencies in process and training, what is being done to address these?
  • Are you doing enough to ensure that policies are followed and enforced, if appropriate through employment/disciplinary processes?