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Food criminals face stricter punishment

Corin Williams19/11/2014 - 14:00

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Judges have been urged to hand out bigger fines
Judges have been urged to hand out bigger fines

Businesses convicted of serious food safety offences could face fines of up to £3m, under proposals put forward by the Sentencing Council in response to the horsegate scandal.

A consultation on new guidelines for magistrates and judges in England and Wales also outlined plans for longer jail terms for convicted individuals.

The Sentencing Council said there had been ‘significant public concern’ following last year’s horsemeat scandal.

Although most such cases would be likely to be prosecuted as fraud, the council said: ‘The food offences covered by the draft guidelines in this consultation may be engaged for ancillary matters in such cases; for example, for failure to retain documentation required to trace the origin of the product being sold.’

In general the worst offenders, who put public health at risk, will receive stiffer penalties. Fines will also be based on the turnover of a business.

The guidelines follow the publication of draft legislation on environmental offences, including food hygiene, that would give magistrates ‘unlimited fine powers’ for offences that are currently capped at £5,000.

In 2013 around 220 individual offenders were sentenced for food safety and hygiene offences in comparison to around 60 organisations.

The CIEH, backed higher fines for the worst offenders.

Jenny Morris CIEH principal policy officer and  head of TIFSIP said low fines and penalties in cases that have presented a very real risk the human health and public safety has been a concern for a number of years.  

Julie Barratt, director of CIEH Wales, said: ‘It is certainly the case that the present sentencing regime fails to properly reflect the potential seriousness of food crime, which can affect very large numbers of people and can have a devastating impact on individuals, and it would be a step in the right direction if the balance was to be redressed.

‘We know that for some criminals food crime is the crime of choice as the payback is high but the potential sentence if convicted is low. If food crime is to be taken seriously by those who may commit it, whether through choice or through neglect the consequences of committing it must be meaningful and this is an opportunity to ensure that they are.’

Sentencing Council member Michael Caplan QC said: ‘We want to ensure that these crimes don’t pay. They can have extremely serious consequences and businesses that put people at risk by flouting their responsibilities are undercutting those that maintain proper standards and do their best to keep people safe.

‘Our proposals will 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.’

Law firm Shoosmiths said regulatory sentences handed to companies had been ‘too low for too long’.

It said: ‘Large food operators that commit a food safety offence with a serious adverse effect on human health such as widespread poisoning with chronic long-lasting effects with high culpability will see a sentencing range of £500,000 - £3m.

‘Individuals that commit serious offences with high culpability can expect custodial sentences or serious fines where profit was motivating factor in the commission of the offence.’

The guidelines apply to regulations covering selling unsafe food, labelling and other requirements under the Food Safety and Hygiene (England) Regulations 2013 and Food Hygiene (Wales) Regulations 2006.

They do no cover offences under the Food Safety Act 1990 because they are ‘prosecuted in very low numbers’.

The offender, A, is an individual running a small restaurant. On arriving at A’s restaurant for a routine inspection, environmental health officers witnessed A killing a rat on the premises. Under the sink, very near food being prepared for consumption, there was a drain open to the sewers that had numerous rat droppings on it. The drain had no cover except for a light alloy lid that was wholly insufficient to contain contamination from the sewers. There was a rat nest found on the premises and rat urine found near work surfaces. The offender, A, stated that he was unaware of the appropriate hygiene procedures that he was meant to apply and agreed to attend a free training course.

Culpability: The standards in this case are so clearly unacceptable the court may consider this to be a case of ‘deliberate’ culpability; however, on the basis that this was A’s first contact with the authorities and that he had not received any specific training or advice, the court may overall consider this to be a case where A was wilfully blind to the risks, in other words a case of ‘reckless’ culpability.

Harm: Although there is no proven adverse effect on human health arising from A’s actions, this is a case where hygiene standards are particularly poor. Given the presence of open sewers and the rat infestation, the court may conclude there was a ‘high risk’ of an adverse health effect and find this to be a category 2 harm case.

Sentencing guidelines: The offender could be fined between three and five times his or her weekly income, or sentenced to 26 weeks’ custody.

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