The Sentencing Council, the body responsible for producing the guidelines that assist the criminal courts in passing an appropriate sentence, has begun a consultation on proposed guidelines for Health & Safety Offences and Food Safety & Hygiene Offences.
The new guidelines will cover all health and safety offences but in relation to food safety and hygiene offences are focused on offences that are concerned with harm only.
This move represents a significant departure from the normative view that regulatory offences often turn on their own facts and any attempt to produce guidelines would be unhelpful at best and misguided at worst. However, three recent events have encouraged the Sentencing Council to approach this task:
- The recent case of R v Sellafield and Network Rail in which the Court of Appeal reviewed the principles of sentencing corporate offenders and reiterated the need to sentence large organisations with significant fines (see Shoosmiths article Court of Appeal takes significant step in sentencing large companies)
- The creation of sentencing guidelines for environmental offences (see Shoosmiths article New sentencing guidelines for environmental offences will be used from 1 July 2014); and
- The arrival of law that will give the magistrates' court unlimited sentencing powers (see Shoosmiths article Increased corporate penalties on the horizon.)
The Council began by reviewing levels of fines given for these type of offences and concluded that they were too low. Furthermore, for very serious offences there was no distinction for small to medium companies from much larger companies - in one case the Council found two very similar offences committed by two separate companies yet the larger company with a turnover 90,000 times greater than the other company only received a fine 400 times greater. The Council wants this to change.
The Council has outlined a number of steps that the sentencing court will need to go through to establish the appropriate fine. Firstly, the court will need to determine the category of offence. This is based on two stages, the level of culpability and the level of harm. For health and safety and food safety offences culpability will be based upon the extent to which the offender acted deliberately or had knowledge of the offence. In respect of harm, health and safety offences will be based on the extent of exposure to harm whereas food safety offences will be based on actual harm.
Secondly, the court will then need to establish the starting point of the sentence. For companies this will be based on turnover - micro companies will be those with not more than £2 million turnover; small companies will be those between £2 million and £10 million turnover; medium companies will be £10 million to £50 million; and large companies with a turnover of £50 million or over. Once the starting point has been established then the usual rules of mitigation and credit for plea can be applied.
The new guidelines are a clear indication that the Sentencing Council is in agreement with many critics that regulatory sentences of companies have been too low for too long. Under the new guidelines a large organisation that commits an offence with the greatest exposure to harm (a fatal accident for instance) and with high culpability will see a sentencing range of £2,600,000 - £10,000,000. Large food operators that commit a food safety offence with a serious adverse effect on human health such as widespread poisoning with chronic long-lasting effects with high culpability will see a sentencing range of £500,000 - £3,000,000. Individuals that commit serious offences with high culpability can expect custodial sentences or serious fines where profit was motivating factor in the commission of the offence.
The consultation opened on 13 November 2014 and will run until 18 February 2015 details of which can be found here.
If you wish to understand the impact of these potential guidelines on your business or wish to respond and want clear legal advice please contact the team who will be happy to assist.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.