18 October 2016Food Safety and Hygiene Offences - Sentencing Guidelines
Definitive sentencing guidelines for use in courts in England and Wales on food safety and hygiene offences came into effect on 1 February 2016. This Bulletin deals with the Guidelines as they relate to organisations.
The Guidelines set out a number of steps that 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.
- The level of culpability ranges from Very High, considered to be a deliberate breach of or a flagrant disregard for the law, to Low where the offender did not fall far short of the appropriate standard or failings were minor and occurred as an isolated incident.
- The level of harm relates to both actual harm and the risk of harm and has 3 categories; the highest of which category 1 which requires serious adverse effects on individual(s) and/or having wide spread effect, the high risk of adverse effect on individual(s) including where supply was to groups who are vulnerable.
- 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 considers 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.
The Guidelines provide a range of fines based on the level of culpability and category of harm, organisations with turnovers over £50m face fines of between of up to £3 million for the most serious offences. In the case of very large firms, where the turnover greatly exceeds the threshold the Courts may move outside the guidelines to achieve a proportionate sentence.
Medium size firms those with a turnover between £10 million and £50 million can face fines of up to £1.2 million in the most serious cases.
Small firms those with a turnover between £2 million and £10 million can face fines of up to £450,000 in the most serious cases.*
The Court can adjust the fine upwards or downwards from the starting points laid down in the Guidelines depending on factual elements providing the context of the offence and the offender for example factors that could increase the seriousness are where the offender was motivated by financial gain or Deliberate concealment of illegal nature of activity or Poor food safety or hygiene record.
In general principle the courts objective is that the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to operate within the law.
These potential levels of fine will certainly grab the attention of the board, shareholders and the media and could have in some cases a very serious impact on the businesses profitability and ability to investment.
It would be a good time for all food businesses to review the way they ensure compliance and give their due diligence a thorough challenge.