New guidelines have been published by the Sentencing Council designed to improve food safety by providing tougher sentencing powers.
The Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline will come into force from 1 February 2016 and cover offences committed under Regulation 19(1) of the Food Safety and Hygiene (England) Regulations 2013 and the corresponding regulations in Wales.
Offences covered include food poisoning caused by unsafe food preparation and poor hygiene, misleading labelling and failing to ensure traceability of products.
Turnover, culpability and harm
Previously only limited guidelines were available for judges and magistrates covering food safety. The Council aims to ensure that fines are fair and reflective of the offence committed. As with health and safety offences, the guidelines provide sentence ranges based on an organisation’s turnover, culpability and harm.
The Courts will start by considering how serious the harm is and will then take a financial starting point based on the annual turnover of the business which has caused the harm. Mitigating and aggravating factors will then be considered as the courts are required to contemplate the proportionality, as well as the financial implications, of any fine. The financial impact will be viewed in light of considerations such as the organisation’s ability to improve its standards to comply with the law, employment of staff and putting right any damage to customers. A fine within a specified range will then be applied.
Examples of the thresholds from the Definitive Guideline:
Click here to view the table.
Evidence of having correct procedures in place will no longer be considered a mitigating factor. The courts will also see failure to provide financial information as an indication that the company can pay any appropriate fine. These are both examples of how the new sentencing guidelines are designed to have a tougher impact.
Case law in the health and safety area has indicated what the practical effect of the sentencing guidelines will be and these can be applied as a guide for food safety and hygiene. In R v Thames Water Utilities  EWCA 960, the Court emphasised that even in the case of a large organisation with an impeccable record "the fine must be large enough to bring the appropriate message home".
The new wide ranging guidelines are intended to hit hard and catch even the smallest of organisations. It is now essential for all of those working within the food sector to review their policies and procedures to ensure their organisation’s compliance with the law. Due diligence of suppliers and employees is key, particularly with reference to traceability. Taking these steps should stand a food business operator in good stead if an incident occurs.