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Fear of fines cut under sentencing proposals

Stuart Spear11/03/2015 - 12.00

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New food safety sentencing guideline proposed
New food safety sentencing guideline proposed

EHOs have warned that the new sentencing guideline for food safety offences may result in a cut in penalties for most local authority food hygiene prosecutions.

With fines currently averaging £1,800 for food hygiene breaches there are concerns that this already low figure may be further cut under the Sentencing Council’s proposed guideline that will force courts to consider turnover when banding fines.

The proposals are outlined in the Health and safety offences, corporate manslaughter and food safety and hygiene offences guideline consultation, which closed at the end of February. This is the first time that food safety offences will be included in sentencing guidelines.

When implemented all courts will be required to follow a strict set of criteria when sentencing in an attempt to ensure more consistent and proportionate penalties.

The inclusion of food safety in the sentencing guidelines follows FSA concerns that existing fines for food safety and hygiene breaches are inadequate. Prof Chris Elliott in his review into food crime, also cited low level fines following local authority prosecutions as an obstacle to deterrence.

While it is generally agreed that the proposals will raise fines for higher turnover companies the fear is that at the bottom end of the scale, which is the majority of all cases taken by councils, the guideline will have the reverse effect and cut what are generally felt to be already desultory fines.

Steve Ramm, chair of the Food Hygiene Focus Group, the national body representing regulators on consistency, fears that under the proposals courts may be forced to impose lenient penalties in instances where the defendant claims poverty.

‘The problem is that people who are willing criminals will go to the end of the earth to plead impoverishment,’ said Mr Ramm. ‘We would not like to think that criminal people can get away with it by making a convincing story that they have no money.’ 

Christina Wennell, Basildon Council principal EHO and lead on the sentencing guideline for the Essex food group, said: ‘For larger organisations it will mean that magistrates will not be frightened to impose large fines, but in the case of small businesses the risk is that the fines will significantly drop.’

Under the proposals courts will, before sentencing, first have to establish a company’s culpability. This will range from just failing to take all reasonable precautions under due diligence to a flagrant disregard of the law.

Next, the courts will have to consider harm. Serious actual harm in the form of acute or chronic illness or widespread impact is required for the top category 1 offence, incurring the highest penalty. The next two categories, 2 and 3, involve the potential risk of harm to the public when looking at low, medium and high-risk incidents.

The courts will then have to consider turnover before looking at aggravating and mitigating circumstances. These may include previous offences, motive, obstruction, past food hygiene record and refusal of free training or advice.

Another concern is that actual harm being required for category 1 sentencing will force all other offences into lower penalty categories regardless of the seriousness and potential risk to health of the offence.

Ms Wennell points out that incidents involving actual harm are so rare that there is a case to include it as an aggravating factor when sentencing rather than it being a requirement before courts can impose the highest sentence band. In the case of a death from food poisoning the proposals will allow courts to step outside the sentencing guideline.

‘In nearly all cases there is no actual harm and even if you do have it the burden of proof is so difficult to prove beyond all reasonable doubt that this pie caused this sickness, that it can be challenged by a clever barrister,’ said Ms Wennell. ‘It also means that having it as a top category, other offences then get pushed down into the lower sentencing categories regardless of seriousness.’  

Echoing this view Mr Ramm said: ‘It is not always the case that you would expect actual harm to demonstrate a need for higher sentencing especially in cases where it is obvious that although there was no actual harm there was still a pretty reasonable chance of people falling ill.’

However CIEH principal policy officer Jenny Morris believes actual harm should be kept as a qualifying criterion for a category 1 offence.

‘While environmental health is all about prevention, actual harm does happen and that needs to be recognised in line with health and safety and similar issues, therefore I think it is worth having it as highest category,’ said Ms Morris. ‘However we don’t want to see fines going down significantly as that will reduce the deterrent effect of court proceedings.’ 

The consultation guideline refers to 19(1) of the Food Safety and Hygiene (England) Regulation 2012 and the Welsh equivalent. These relate to underlying EU food hygiene legislation and covers food hygiene offences and will impact on all food sector businesses.


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