Food Update: New Sentencing Guideline for Health & Safety, Corporate Manslaughter and Food Safety & Hygiene Offences

Based primarily on company turnover, fines for breaches will undoubtedly increase from hundreds of thousands into millions of pounds, hitting businesses extremely hard. In our experience of the new regime to date, representing companies accused of major health and safety breaches, we have found a high degree of naivety and therefore unpreparedness about how robustly the Courts will now apply the Guidelines, which came into force on the 1st February. The lesson is that you should not be under illusions that they will be lenient in this initial phase.

Setting fines

The Guideline identifies a number of steps for the courts to go through to enable them to determine the starting point and the range of possible fines within certain categories.

Three steps will be considered in setting an appropriate fine.

For health and safety offences:

1. Degree of culpability – to establish whether culpability is low, medium, high or very high the court will consider a number of factors – including what measures were put in place; the extent of which failures ran through different levels of the organisation and whether there were any warning signs indicating a risk to health and safety.
2. Level of harm – this requires the court to consider the risk of harm created by the offence, including a number of issues such as whether the offence exposed a number of people to the risk of harm or whether there was significant actual harm.
3. Company turnover – this will be the starting point for a fine within a category range; large being £50m or over, medium £10m-£50m, small £2m-£10m and micro turnover less than £2m.

For breach of food safety and food hygiene regulations the considerations are:

1. Degree of culpability – a number of factors will be considered including failure to put in place recognised industry standards, ignoring concerns of regulators and the length of time of breach.
2. Level of harm – similar issues to those outlined for health and safety offences will be considered – but will also include whether consumers have been misled regarding food compliance with religious and personal beliefs.
3. Company turnover – companies are categorised in the same way as for health and safety offences.

Mitigating and aggravating factors

In addition, as with any sentencing exercise, the court will consider both aggravating and mitigating factors which may result in an adjustment from the starting point.

Factors which reduce the seriousness of the offence include

• no previous convictions or no relevant/recent convictions
• evidence of steps taken voluntarily to remedy the problem and procedures in place.

Conversely factors which would be perceived as aggravating, and thus increase the seriousness of the offence, include

• poor health and safety record
• breach of acourt order
• previous convictions having regards to the nature of the offence to which the conviction relates and its relevance to the current offence.

Increased fines

The Guideline is a significant step up in terms of levels of fines, providing for unlimited fines. There is a startling starting range of £2.6-£10m for businesses with a turnover of £50m where found guilty of breaching health and safety regulations at the highest level of harm and culpability.

However, where organisations have a turnover which greatly exceeds £50m, courts may have to move outside the suggested range to achieve a proportionate sentence.

Whilst this aims to bring consistency to sentencing in England and Wales, the need to consider the different steps and specific details of any alleged offence mean that accurately predicting a likely fine at this stage is a fine art indeed. As a result we have seen a number of large organisations clamber to plead guilty to offences to try and achieve sentencing before it comes into force.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.