Food safety and sentencing examined


24th May 2021

Food safety sentencing is currently in the spotlight and we were pleased to bring you a mock trial and sentencing event on Wednesday 26 May. Two recent criminal prosecutions arguably throw into stark relief the apparent disparity in approach to sentencing for food safety offences. The Sentencing Guidelines, introduced in 2016, have generally had the effect of increasing sentences and fines for breaches.

Food safety guidelines

Given the fact that food safety failures resulting in allergen contamination resulted in a staggering 231 fatalities in the UK from 1998 to 2019, many would say at last the punishment is starting to fit the crime. Whilst the Guidelines have created a more structured road map to sentence for Courts, there remain oddities. Whilst difficult to comment fully without specifics, two recent cases merit consideration.

Example cases

The first case relates to a fast food outlet in Gloucester – advertised as ‘three star’ for hygiene when in fact it was one. The prosecution related to an undercover operation involving a request for an allergen (milk) free Donner Kebab. The kebab supplied was no such thing, but the proprietor received a fine of just £450 plus costs, and all this for an offence which demonstrated behaviour which posed a serious risk of a fatality.

Conversely, major outlet Tesco were fined an eye-watering £7.6 million for food safety and hygiene breaches concerning the regular sale of out of date food. One distinction obviously is scale, and the Sentencing Guidelines expressly draw a distinction between individuals and organisations and direct that fines are to be proportionate to turnover. When the turnover greatly exceeds £50 million, Courts can exceed the fine thresholds set out, but there is clearly a risk that the fines imposed will be disproportionate to the actual criminality. An allergen contaminated kebab poses a clear risk of death, out of date food less so. Many would argue that the focus on turnover, rather than the nature of the offence, produces disproportionate outcomes which do little to deter small-scale or individual (and possibly higher risk) offenders.

Challenges

Another current challenge to Courts sentencing food safety offences relates to the impact of the covid pandemic. Sections of the food industry are in a perilous financial state, with recent reports suggesting some 10% of restaurants have closed since 2019. But is there also another risk, as food businesses re-start and bring out of practice staff and systems back from hibernation, will we see a higher rate of failures than before?

Mock food trial event

These themes, and others were explored in a simulated mock trial and sentencing event, which involved the prosecution of a fictional restaurant and director for a food allergy contamination – played by barristers from Six Pump Court and Blake Morgan LLP. This featured alongside a full day of networking and discussions on Wednesday 26 May 2021, hosted by Food Allergy Aware.

Blake Morgan’s Food law expert Tom Walker featured along with Stuart Jessop from Six Pump Court Chambers with Christian Jowett, of 30 Park Place, as the Judge.

Insights and invitations from Blake Morgan

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