February 2018 marked the 2nd anniversary of the new Sentencing Guidelines for food safety and hygiene offences. We asked John Barnes, our Strategic Advisor and former FSA Head of Local Delivery for his view on the Guidelines and what they mean for food businesses
Why were the Guidelines needed?
In essence, the Guidelines are to help judges and magistrates more consistently sentence cases involving breaches of food safety and hygiene law. These cases are not seen frequently by courts – less than 300 considered by Magistrates Courts in 2013 – as a result of this, alongside the technicalities often involved, there was a lack of familiarity with them. Penalties appeared inconsistent and both the Food Standards Agency, as part of its new Regulatory Strategy, and The Elliot Review (after the horsemeat scandal) commented on the frustration amongst stakeholders at the low level of sanctions for food offences, especially for large food business committing quite serious offences.
What do the Guidelines do?
The Sentencing Guidelines (which also cover Health and Safety offences) provide the courts with a new formulaic way to determine appropriate sentences and financial penalties which courts must follow when sentencing offenders. A stated aim of the sentence is not only to punish the offender but also to act as a deterrence for them and others. I heard a Barrister say recently that the new Guidelines have added a zero to the level of fines imposed by the courts for food safety and hygiene offences. I wouldn’t disagree with that observation particularly in relation to the impact on larger organisations breaching food safety and hygiene law. Some of you might recall Asda’s fine in 2016 for £664,000 for mouse droppings found in one of their London stores. On the other end of the scale, a London-based bakery was forced to pay £1,500 following a cockroach infestation which closed down the business.
So what determines the level of fine?
There are two basic steps the courts need to go through. The first is to determine the offence severity from an assessment of the level of Culpability and Harm associated with the offence(s). For Culpability, the highest category for the penalty is reserved for organisations deliberately or flagrantly breaking the law. Below this, are businesses which, though not deliberately, have failed to put in place recognised industry standards or allowed breaches to carry on over long periods. The lowest category, in terms of severity, are businesses who fell short of the law and committed an offence but had made significant efforts or where there was no real warning indicating a risk.
In assessing Harm the highest category is for breaches which pose a high risk of an adverse effect on individual(s) or resulted in a serious adverse effect on individual(s) and/or had a widespread impact – a food poisoning outbreak might well fall into this category. Other categories include breaches which have a lower level of risk on individual(s) and include considerations on whether the breach substantially undermined legitimate industry, or misled consumers, or inhibited relevant authorities tracing or addressing risks to health.
Why have the fines for food safety and hygiene offences increased so much?
Basically, because of the second step the courts now have to go through. Having determined the offence category the court is required to consider the organisation’s annual turnover or equivalent and use this to reach a starting point for any fine. The starting point for any fine is actually specified in the Guidelines to aid consistency. For example, where the offence showed both Very High Culpability and the Highest Harm Category a large food businesses (annual turnover in excess of £50m) has a £1.2m starting point for the fine for the individual breach. The lowest business threshold is one with an annual turnover less than £2m where the similar starting point would be £60k.
Once the starting point for the fine has been determined, the courts are then obliged to consider other aggravating or mitigating factors. These have the potential to result in an upward or downward adjustment. Aggravating factors which could increase the fine include: previous relevant convictions, a poor safety record, whether it was motivated for financial gain, obstruction or a refusal of free advice or training. Mitigating factors which could reduce a fine include: no previous convictions, a good safety record, good co-operation and steps taken by the business to remedy problem. An early guilty plea can also reduce the fine by up to a third. Where there are multiple breaches, the courts can consider the effect any overall fine might have on the viability of the businesses and its impact on employees. But, make no mistake these Guidelines have greatly increased the penalties and risk for any business failing to comply with relevant food safety and hygiene and health and safety law – and deliberately so.
Have the Guidelines resulted in more cases going to court?
Not really. It is very resource intensive for local authorities and the FSA to prosecute a food business. Generally, the strategy is for a graduated enforcement approach to remedying non-compliance i.e. initially working with businesses to remedy failings. This tends to result in more sustained compliance. However, where the breach is significant, or where the business is a persistent offender or fails to address non-compliance, this is likely to result in the business being prosecuted. Indeed, a key part of the FSA’s new Regulating Our Future Strategy is that regulators deal promptly and effectively with serious or persistent non-compliance. Even so, the most recent FSA data suggests a measured response from LAs with the number of food safety and hygiene cases being referred to courts largely unchanged. The higher fines might well be deterring non-compliance and of course FHRS has provided an excellent alternative way for LAs to address business non-compliance in recent years.
What should businesses do?
Businesses with good food safety management systems in place shouldn’t worry unduly. Having a good food safety record, high FHRS rating and possibly a Primary Authority partnership should greatly reduce the risk of an incident or a major failure being identified by regulators. Even if a breach was noted, the LA will consider whether the public interest is best served in taking a generally diligent business to court to deal with the offence. These attributes are also mitigating factors any court would take into account. That said, given the potential fines now being seen and associated reputational issues, my advice is always cooperate fully and clearly with the regulator if they raise concerns about your business’s food safety or hygiene controls. Work with the regulator, highlight the management controls you have in place and promptly address any failings, especially if in a formal Notice. There are formal appeal mechanisms if you believe the actions are unjustified. Use them if appropriate but don’t ignore the problem or let it fester. These actions will greatly reduce the risk of the LA deciding they need to take their case to court. On the flip side, having no effective management system, a low FHRS rating, failing to address non-compliances effectively and promptly means the business is at risk and is likely to result in a significant fine if the matter ends up in a court.
Are you worried about your food safety management systems? Suffering from a low FHRS? Or looking for a consultancy to support you in gaining a Primary Authority Partnership? Let’s talk. Call us on 020 3740 3744 or email firstname.lastname@example.org today.
The information contained in this blog article has been created for marketing purposes and is not official guidance and should not be used as a substitute for official Food Safety, Fire Safety and Health & Safety advice. Shield Safety take no responsibility if the information in the blog article is used to form part of a safety management system or used to form part of any legal or regulatory compliance for your business. For official guidance and to engage with Shield Safety services please do call our team on 020 3740 3744 or email email@example.com.