Food Safety Offences - new sentencing guidelines consultation launched.

The Sentencing Council for England and Wales is a body which promotes greater consistency in sentencing, whilst maintaining the independence of the judiciary. The Council produces guidelines on sentencing for the judiciary and aims to increase public understanding of sentencing. They have just launched a consultation on sentencing guidelines in respect of health and safety offences and also (of particular interest to the licensed trade) food safety offences.

The Council indicates that 'the number of health and safety and food offences sentenced by the courts is relatively low in comparison to other offences. For instance, in 2013, a total of 698 sentences were passed for offences falling under these guidelines. However, the Council found in speaking to sentencers around the country that, as a result of the relative infrequency with which magistrates and judges sentence these cases, there was at times a lack of familiarity with them. In addition, in reviewing current sentencing practice the Council identified some inconsistency in how various factors were weighted and applied in reaching sentencing decisions across the country. The Council concluded that further guidance would assist in addressing this inconsistency and would be useful to sentencers dealing with these relatively unfamiliar cases'.

The consultation on the draft guidelines is open from 13 November 2014 to 18 February 2015 and will - if adopted as proposed - see significant increases in the level of penalties likely to be imposed.

 The consultation applies to:

• Health and safety offences - Organisations
• Health and safety offences - Individuals
• Corporate manslaughter
• Food hygiene and food safety offences - Organisations
• Food hygiene and food safety offences - Individuals

The consultation can be found here.  

The detailed consultation proposals for food safety offences can be found at page 51 onwards and page 105 onwards.

Various case studies are provided. One such follows:

 Case 4C

The offender, C, is an organisation that runs two small pizza restaurants. Environmental health officers visited one of C's restaurants in September last year and found the kitchen to be in an unsatisfactory state with bins uncovered, dirty cleaning materials and surfaces and no grease filters on the ventilation system. Training records revealed that some food handlers had not undertaken the required training. Officers provided advice to C's management on matters that needed to be remedied. A further visit was made in December last year when inspectors found mouse droppings, damaged equipment and a risk of contamination. There was no proper paperwork or records being kept. An improvement notice was served and further advice to management provided by officers. On two subsequent visits, some improvements were made. However, on visiting the premises again in May this year, inspectors found deterioration in cleanliness, including mouse droppings, a risk of cross contamination between cooked food and raw food, no hot water for washing hands and no clean aprons available for food handling staff to wear.

Culpability: The offender has had five visits from environmental health officers and the management has been provided with advice on the required standards. Management, and therefore the organisation, continued to intentionally breach or flagrantly disregard this advice over a period of time. The court is likely to consider this to be a case of "very high" culpability.

Harm: While the standards are poor, there is no evidence that food has been contaminated or come into contact with harmful substances. Overall a court may not consider this to be a case where there was a "high risk" of an adverse effect on human health, but a "medium or low risk", meaning that this would be a category 3 harm case.

Sentencing Guidance: The offending organisation in this case, C, operated two small pizza restaurants and consistently failed to meet the required standards and comply with the advice provided by the authorities. C was charged with 8 counts under the relevant regulations. C's turnover is £700,000 a year. C's offences were considered to constitute very high culpability/category 3 harm. As a micro organisation, the starting point for this offence would be £10,000 with a range of £5,000 - £18,000. The court would then consider the principles at step three relating to C's financial circumstances and any wider impacts of the fine, and guidance on totality at step eight, in order to identify a total fine that was fair and proportionate.