10th October 2016
The Sentencing Council’s Guidelines for “Health and safety offences, corporate manslaughter and food safety and hygiene offences” (the Guidelines) came into effect on 1 February 2016. As well as enabling the imposition of higher fines the Guidelines also increase the likelihood of custodial sentences (and for longer terms) for individuals convicted of health and safety and/of food safety offences.
The Guidelines apply to a wide range of food safety offences, including putting unsafe food on the market, inadequate traceability, food recalls and withdrawals, failure to adopt systems based on Hazard Analysis Critical Control Point (HACCP) principles and misleading consumers through labelling, advertising and preparation of food.
The Guidelines apply to any case sentenced on or after 1 February 2016, regardless of when the offence occurred. Although it is still relatively early days, it is already clear that the Guidelines are having a profound impact on the sentencing of businesses convicted of health and safety or food safety offences. In particular, given the link between the level of fine and the offender’s turnover, large organisations are receiving much higher penalties. Fines so far imposed under the Guidelines include:
Such levels of fine were previously the preserve of multiple fatality cases such as those arising from the Hatfield and Potters Bar rail disasters or corporate manslaughter convictions.
Food companies have also been sentenced under the Guidelines. For example, a fine of £800,000 was imposed on McCains for safety failings after an engineer lost an arm examining a factory machine when the correct guard was not fitted. Another major food safety incident to have been sentenced since imposition of the Guidelines came in May, when a restaurant owner was sentenced to six years’ imprisonment after being found guilty of gross negligence manslaughter and six food safety offences when a customer suffered a severe anaphylactic shock after eating a takeaway containing peanuts. Though the sentence passed by the court reflects the manslaughter conviction (which is punishable by up to life imprisonment) it is clear that, given the flagrant disregard of the law and the severe consequences of the offending, the case would have resulted in custody in any event.
Arguably the most striking instance of a food company being fined under the Guidelines also came in May when KFC was fined £100,000 after environmental health officers found that one of its restaurants was “visibly dirty and poorly maintained” with no proper cleaning and disinfection having been undertaken for 10 days owing to a defective boiler. The offence fell within the medium culpability range of the Guidelines with the level of harm falling within the Category two range. The size of the fine also reflected the company’s turnover.
With the likelihood of a substantial fine being imposed for both health and safety and food safety offences it is imperative that every feasible measure is taken to minimise the risk of an incident occurring in the first place. Having robust and effective food safety and hygiene procedures in place may be sufficient to establish a due diligence defence. However, even if the business is unable to establish a due diligence defence, the sufficiency of its systems and procedures will be carefully scrutinised as part of any sentencing exercise. This could mean the difference between a relatively modest starting point for a fine, or one substantially greater, designed to have a real economic impact and deterrent effect.
Accidents or oversights can happen at even the most meticulous of companies. If the worst does happen, Walker Morris’ dedicated Regulatory Investigations and Prosecutions team can help you. Members of the team are available 24/7 to assist in handling a dawn raid and in the management of investigations conducted by the HSE, FSA or any UK regulator. We also have extensive experience of defending civil action and criminal prosecutions brought by the regulators.
We are pleased to offer a tailored and practical training programme focusing on the management of a serious regulatory incident to our Food and Drink industry contacts. These can be run as private training sessions, usually at your premises although we are equally happy to host the training. For further detail on this training click here.
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