2. Individuals: Breach of food safety and food hygiene regulations
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.
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.
|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|
|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|
|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|
|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|
|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|
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.
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.