Individuals: Breach of food safety and food hygiene regulations

Food Hygiene (Wales) Regulations 2006 (regulation 17(1)), Food Safety and Hygiene (England) Regulations 2013 (regulation 19(1)), The General Food Regulations 2004 (regulation 4)
Effective from: 01 February 2016

Triable either way
Maximum: when tried on indictment: unlimited fine and/or 2 years’ custody when tried summarily: unlimited fine
For offences under The General Food Regulations, the maximum when tried summarily is an unlimited fine and/or 6 months’ custody
Offence range: Conditional discharge – 18 months’ custody

User guide for this offence


Step 1 – Determining the offence category

The court should determine the offence category using only the culpability and harm factors in the lists below. Where an offence does not fall squarely into a category, individual factors may require a degree of weighting to make an overall assessment.

Culpability

Very high

Where the offender intentionally breached, or flagrantly disregarded, the law

High

Actual foresight of, or wilful blindness to, risk of offending but risk nevertheless taken

Medium

Offence committed through act or omission which a person exercising reasonable care would not commit

Low

Offence committed with little fault, for example, because:

  • significant efforts were made to address the risk although they were inadequate on this occasion
  • there was no warning/circumstance indicating a risk to food safety
  • failings were minor and occurred as an isolated incident

Harm

The list below contains factors relating to both actual harm and risk of harm. Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.

Category 1

  • Serious adverse effect(s) on individual(s) and/or having a widespread impact
  • High risk of an adverse effect on individual(s) – including where supply was to persons that are vulnerable

Category 2

  • Adverse effect on individual(s) (not amounting to Category 1)
  • Medium risk of an adverse effect on individual(s) or low risk of serious adverse effect
  • Regulator and/or legitimate industry substantially undermined by offender’s activities
  • Relevant authorities unable to trace products in order to investigate risks to health, or are otherwise inhibited in identifying or addressing risks to health
  • Consumer misled regarding food’s compliance with religious or personal beliefs

Category 3

  • Low risk of an adverse effect on individual(s)
  • Public misled about the specific food consumed, but little or no risk of actual adverse effect on individual(s)

Step 2 – Starting point and category range

Having determined the category, the court should refer to the starting points in the table below to reach a sentence within the category range. The court should then consider further adjustment within the category range for aggravating and mitigating features, set out below.

Obtaining financial information

In setting a fine, the court may conclude that the offender is able to pay any fine imposed unless the offender has supplied any financial information to the contrary. It is for the offender to disclose to the court such data relevant to his financial position as will enable it to assess what he can reasonably afford to pay. If necessary, the court may compel the disclosure of an individual offender’s financial circumstances pursuant to section 162 of the Criminal Justice Act 2003. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case which may include the inference that the offender can pay any fine.

Starting points and ranges

Where the range includes a potential sentence of custody, the court should consider the custody threshold as follows:

  • has the custody threshold been passed?
  • if so, is it unavoidable that a custodial sentence be imposed?
  • if so, can that sentence be suspended?

Where the range includes a potential sentence of a community order, the court should consider the community order threshold as follows:

  • has the community order threshold been passed?

Even where the community order threshold has been passed, a fine will normally be the most appropriate disposal. Or, consider, if wishing to remove economic benefit derived through the commission of the offence, combining a fine with a community order.

  Starting point Range
Very high culpability
Harm category 1 9 months’ custody  Band F fine – 18 months’ custody
Harm category 2 Band F fine Band E fine – 9 months’ custody
Harm category 3 Band E fine  Band D fine – 26 weeks’ custody
High culpability
Harm category 1 Band F fine Band E fine – 9 months’ custody
Harm category 2 Band E fine Band D fine – 26 weeks’ custody
Harm category 3 Band D fine Band C fine – Band E fine
Medium culpability
Harm category 1 Band E fine Band D fine – Band F fine
Harm category 2 Band D fine Band C fine – Band E fine
Harm category 3 Band C fine Band B fine – Band C fine
Low culpability
Harm category 1 Band C fine Band B fine – Band C fine
Harm category 2 Band B fine Band A fine – Band B fine
Harm category 3 Band A fine Conditional discharge – Band A fine

Band ranges
Starting point Range
Fine Band A  50% of relevant weekly income  25 – 75% of relevant weekly income
Fine Band B  100% of relevant weekly income  75 – 125% of relevant weekly income
Fine Band C  150% of relevant weekly income 125 – 175% of relevant weekly income
Fine Band D  250% of relevant weekly income 200 – 300% of relevant weekly income
Fine Band E 400% of relevant weekly income 300 – 500% of relevant weekly income
Fine Band F  600% of relevant weekly income  500 – 700% of relevant weekly income
Custodial sentences

The approach to the imposition of a custodial sentence should be as follows:

1) Has the custody threshold been passed?

  • A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
  • There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
  • The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.

2) Is it unavoidable that a sentence of imprisonment be imposed?

  • Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
  • For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

3) What is the shortest term commensurate with the seriousness of the offence?

  • In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.

4) Can the sentence be suspended?

  • A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.

The following factors should be weighed in considering whether it is possible to suspend the sentence:

Factors indicating that it would not be appropriate to suspend a custodial sentence

Factors indicating that it may be appropriate to suspend a custodial sentence

Offender presents a risk/danger to the public

Realistic prospect of rehabilitation

Appropriate punishment can only be achieved by immediate custody

Strong personal mitigation

History of poor compliance with court orders

Immediate custody will result in significant harmful impact upon others

The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.

Pre-sentence report

Whenever the court reaches the provisional view that:

  • the custody threshold has been passed; and, if so
  • the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;

the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.

Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.

For further information and sentencing flowcharts see the Imposition guideline.

Note on statutory maxima on summary conviction. For offences under regulation 19(1) Food Safety and Hygiene (England) Regulations 2013 and regulation 17(1) Food Hygiene (Wales) Regulations 2006, the maximum sentence magistrates may pass on summary conviction is an unlimited fine; therefore for these offences, magistrates may not pass a community order. Regulation 4 of The General Food Regulations 2004 is in force in Wales but not in England. For offences under regulation 4, the maximum sentence on summary conviction is 6 months’ custody and/or an unlimited fine.

You will see below a non-exhaustive list of factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, relevant recent convictions are likely to result in a substantial upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.

Factors increasing seriousness

Statutory aggravating factors

  • Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
  • Offence committed whilst on bail

Other aggravating factors include

  • Motivated by financial gain
  • Deliberate concealment of illegal nature of activity
  • Established evidence of wider/community impact
  • Breach of any court order
  • Obstruction of justice
  • Poor food safety or hygiene record
  • Refusal of free advice or training

Factors reducing seriousness or reflecting personal mitigation

  • No previous convictions or no relevant/recent convictions
  • Steps voluntarily taken to remedy problem
  • High level of co-operation with the investigation, beyond that which will always be expected
  • Good food safety/hygiene record
  • Self-reporting, co-operation and acceptance of responsibility
  • Good character and/or exemplary conduct
  • Mental disorder or learning disability, where linked to the commission of the offence
  • Serious medical conditions requiring urgent, intensive or long-term treatment
  • Age and/or lack of maturity where it affects the responsibility of the offender
  • Sole or primary carer for dependent relatives

Step 3 – Review any financial element of the sentence

Where the sentence is or includes a fine, the court should ‘step back’ and, using the factors set out in step three, review whether the sentence as a whole meets the objectives of sentencing for these offences. The court may increase or  reduce the proposed fine reached at step two, if necessary moving outside of the range.

Full regard should be given to the totality principle at step seven where multiple offences are involved.

General principles to follow in setting a fine

The court should finalise the appropriate level of fine in accordance with section 164 of the Criminal Justice Act 2003, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender.

The level of fine should reflect the extent to which the offender fell below the required standard. The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to take the appropriate precautions.

Review of the fine

Where the court proposes to impose a fine it should ‘step back’, review and, if necessary, adjust the initial fine reached at step two to ensure that it fulfils the general principles set out above.

Any quantifiable economic benefit derived from the offence, including through avoided costs or operating savings, should normally be added to the total fine arrived at in step two. Where this is not readily available, the court may draw on information available from enforcing authorities and others about the general costs of operating within the law.

In finalising the sentence, the court should have regard to the following factors relating to the wider impacts of the fine on innocent third parties; such as (but not limited to):

  • impact of the fine on offender’s ability to comply with the law;
  • impact of the fine on employment of staff, service users, customers and local economy.

Step 4 – Consider any factors which indicate a reduction, such as assistance to the prosecution

The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Step 5 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline.

Step 6 – Compensation and ancillary orders

Ancillary orders In all cases the court must consider whether to make ancillary orders. These may include:

Hygiene Prohibition Order These orders are available under both the Food Safety and Hygiene (England) Regulations 2013 and the Food Hygiene (Wales) Regulations 2006.

If the court is satisfied that the health risk condition in Regulation 7(2) is fulfilled it shall impose the appropriate prohibition order in Regulation 7(3).

Where a food business operator is convicted of an offence under the Regulations and the court thinks it proper to do so in all the circumstances of the case, the court may impose a prohibition on the operator pursuant to Regulation 7(4). An order under Regulation 7(4) is not limited to cases where there is an immediate risk to public health; the court might conclude that there is such a risk of some future breach of the regulations or the facts of any particular offence or combination of offences may alone justify the imposition of a Hygiene Prohibition Order. In deciding whether to impose an order the court will want to consider the history of convictions or a failure to heed warnings or advice in deciding whether an order is proportionate to the facts of the case. Deterrence may also be an important consideration.

Disqualification of director An offender may be disqualified from being a director of a company in accordance with section 2 of the Company Directors Disqualification Act 1986. The maximum period of disqualification is 15 years (Crown Court) or 5 years (magistrates’ court).

Compensation

Where the offence results in loss or damage the court must consider whether to make a compensation order. If  compensation is awarded, priority should be given to the payment of compensation over payment of any other financial penalty where the means of the offender are limited.

Where the offender does not have sufficient means to pay the total financial penalty considered appropriate by the court, compensation and fine take priority over prosecution costs.

Step 7 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence,  consider whether the total sentence is just and proportionate to the offending behaviour in accordance with the Offences Taken into Consideration and Totality guideline.

Where the offender is convicted of more than one offence where a fine is appropriate, the court should consider the following guidance from the definitive guideline on Offences Taken into Consideration and Totality.

“The total fine is inevitably cumulative.

The court should determine the fine for each individual offence based on the seriousness of the offence and taking into account the circumstances of the case including the financial circumstances of the offender so far as they are known, or appear, to the court.

The court should add up the fines for each offence and consider if they are just and proportionate.

If the aggregate total is not just and proportionate the court should consider how to reach a just and proportionate fine. There are a number of ways in which this can be achieved.

For example:

  • where an offender is to be fined for two or more offences that arose out of the same incident or where there are multiple offences of a repetitive kind, especially when committed against the same person, it will often be appropriate to impose for the most serious offence a fine which reflects the totality of the offending where this can be achieved within the maximum penalty for that offence. No separate penalty should be imposed for the other offences;
  • where an offender is to be fined for two or more offences that arose out of different incidents, it will often be appropriate to impose a separate fine for each of the offences. The court should add up the fines for each offence and consider if they are just and proportionate. If the aggregate amount is not just and proportionate the court should consider whether all of the fines can be proportionately reduced. Separate fines should then be passed.

Where separate fines are passed, the court must be careful to ensure that there is no double-counting.

Where compensation is being ordered, that will need to be attributed to the relevant offence as will any necessary  ancillary orders.”

Step 8- Reasons

Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 9 – Consideration for time spent on bail

The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.