Since 1 February 2016 sentencing for food safety and hygiene offences has been subject to the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline.
In April 2019 the Sentencing Council published its impact assessment for the Guideline. This reports that fines for food safety and hygiene offences and the prosecution of directors and senior managers have increased following its introduction.
Fines And Custodial Sentence
The Guideline applies to offences pursuant to regulation 19(1) of the Food Safety and Hygiene (England) Regulations 2013 in England and in Wales, regulation 17(1) of the Food Hygiene (Wales) Regulations 2006 and regulation 4 of the General Food Regulations 2004. The offence range for organisations is a fine from £100 to £3m. Convicted individuals can receive a custodial sentence of up to 2 years if tried in the crown court.
Food safety offences are strict liability criminal offences. They can be committed without any intention to breach the law. However there is a defence of ‘due diligence’. This requires the organisation to prove ‘on a balance of probabilities’ that:
(i) It took all reasonable precautions to avoid the offence (this means that the organisation had a proper management system of procedures to prevent the offence in place); and
(ii) It exercised due diligence in operating that system.
The impact assessment found that the number of organisations sentenced for food safety and hygiene offences between 2013 and 2016 has more than doubled from 60 in 2013 to 130 in 2016. Since then the numbers have remained stable. In 2017 94% of organisations received a fine. The Guideline has resulted in the average fine increasing from £2,200 to £7,100.
The number of individuals prosecuted increased from 180 in 2015 to 260 in 2017 (an increase of over 40%). A fine was imposed in 92% of cases, 3% of convicted defendants received a suspended custodial sentence, 2% received a community order and less than 1% received an immediate custodial sentence.
In general terms, for all offences sentenced under the Guideline, the impact assessment found that fewer appeals against sentence have been successful over the last three years.
Fisher Scoggins Waters are a London based law firm who represent organisations and individuals facing investigation or prosecution for food safety offences. If you require legal advice, please phone us on 0207 993 6960.