Organisations: 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 when tried summarily: unlimited fine
Offence range: £100 fine – £3 million fine

User guide for this offence


Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Applicability

In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all organisations, who are sentenced on or after 1 February 2016, regardless of the date of the offence.*

Section 125(1) of the Coroners and Justice Act 2009 provides that when sentencing offences committed after 6 April 2010:

“Every court –
(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and

(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.”

Structure, ranges and starting points

For the purposes of section 125(3)–(4) of the Coroners and Justice Act 2009, the guideline specifies offence ranges – the range of sentences appropriate for each type of offence. Within each offence, the Council has specified a number of categories which reflect varying degrees of seriousness. The offence range is split into category ranges – sentences appropriate for each level of seriousness. The Council has also identified a starting point within each category.

Starting points define the position within a category range from which to start calculating the provisional sentence. The court should consider further features of the offence or the offender that warrant adjustment of the sentence within the range, including the aggravating and mitigating factors set out at step two. Starting points and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial. Credit for a guilty plea is taken into consideration only at step six in the decision making process, after the appropriate sentence has been identified.

*The maximum sentence that applies to an offence is the maximum that applied at the date of the 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

  • Deliberate breach of or flagrant disregard for the law

High

  • Offender fell far short of the appropriate standard; for example, by:
    • failing to put in place measures that are recognised standards in the industry
    • ignoring concerns raised by regulators, employees or others
    • allowing breaches to subsist over a long period of time
  • Serious and/or systemic failure within the organisation to address risks to health and safety

Medium

  • Offender fell short of the appropriate standard in a manner that falls between descriptions in ‘high’ and ‘low’ culpability categories
  • Systems were in place but these were not sufficiently adhered to or implemented

Low

  • Offender did not fall far short of the appropriate standard; for example, because:
    • significant efforts were made to secure food safety 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 groups 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 offence category, the court should identify the relevant table for the offender on the following pages. There are tables for different sized organisations.

At step two, the court is required to focus on the organisation’s annual turnover or equivalent to reach a starting point for a fine. The court should then consider further adjustment within the category range for aggravating and mitigating features.

At step three, the court may be required to refer to other financial factors listed below to ensure that the proposed fine is proportionate.

Obtaining financial information

Obtaining financial information
The offender is expected to provide comprehensive accounts for the last three years, to enable the court to make an accurate assessment of its financial status. 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.

Normally, only information relating to the organisation before the court will be relevant, unless exceptionally it is demonstrated to the court that the resources of a linked organisation are available and can properly be taken into account.

  1. For companies: annual accounts. Particular attention should be paid to turnover; profit before tax; directors’ remuneration, loan accounts and pension provision; and assets as disclosed by the balance sheet. Most companies are required to file audited accounts at Companies House. Failure to produce relevant recent accounts on request may properly lead to the conclusion that the company can pay any appropriate fine.
  2. For partnerships: annual accounts. Particular attention should be paid to turnover; profit before tax; partners’ drawings, loan accounts and pension provision; assets as above. Limited liability partnerships (LLPs) may be required to file audited accounts with Companies House. If adequate accounts are not produced on request, see paragraph 1.
  3. For local authorities, fire authorities and similar public bodies: the Annual Revenue Budget (‘ARB’) is the equivalent of turnover and the best indication of the size of the organisation. It is unlikely to be necessary to analyse specific expenditure or reserves (where relevant) unless inappropriate expenditure is suggested.
  4. For health trusts: the independent regulator of NHS Foundation Trusts is Monitor. It publishes quarterly reports and annual figures for the financial strength and stability of trusts from which the annual income can be seen, available via the Monitor website. Detailed analysis of expenditure or reserves is unlikely to be called for.
  5. For charities: it will be appropriate to inspect annual audited accounts. Detailed analysis of expenditure or reserves is unlikely to be called for unless there is a suggestion of unusual or unnecessary expenditure.

Very large organisation

Where an offending organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence.

Large - Turnover or equivalent: £50 million and over
Large Starting Point Range
Very high culpability
Harm category 1 £1,200,000 £500,000 – £3,000,000
Harm category 2 £500,000 £200,000 – £1,400,000
Harm category 3 £200,000 £90,000 – £500,000
High culpability
Harm category 1 £500,000 £200,000 – £1,400,000
Harm category 2 £230,000 £90,000 – £600,000
Harm category 3 £90,000 £50,000 – £240,000
Medium culpability
Harm category 1 £200,000 £80,000 – £500,000
Harm category 2 £90,000 £35,000 – £220,000
Harm category 3 £35,000 £20,000 – £100,000
Low culpability
Harm category 1 £35,000 £18,000 – £90,000
Harm category 2 £18,000 £9,000 – £50,000
Harm category 3 £10,000 £6,000 – £25,000
Medium - Turnover or equivalent: between £10 million and £50 million
Medium Starting Point Range
Very high culpability
Harm category 1 £450,000 £200,000 – £1,200,000
Harm category 2 £200,000 £80,000 – £500,000
Harm category 3 £80,000 £40,000 – £200,000
High culpability
Harm category 1 £200,000 £90,000 – £500,000
Harm category 2 £90,000 £35,000 – £220,000
Harm category 3 £35,000 £18,000 – £90,000
Medium culpability
Harm category 1 £80,000 £35,000 – £190,000
Harm category 2 £35,000 £14,000 – £90,000
Harm category 3 £14,000 £7,000 – £35,000
Low culpability
Harm category 1 £12,000 £7,000 – £35,000
Harm category 2 £7,000 £3,500 – £18,000
Harm category 3 £3,500 £2,000 – £10,000
Small - Turnover or equivalent: between £2 million and £10 million
Small Starting Point Range
Very high culpability
Harm category 1 £120,000 £50,000 – £450,000
Harm category 2 £50,000 £18,000 – £200,000
Harm category 3 £18,000 £9,000 – £80,000
High culpability
Harm category 1 £50,000 £22,000 – £200,000
Harm category 2 £24,000 £8,000 – £90,000
Harm category 3 £9,000 £4,000 – £35,000
Medium culpability
Harm category 1 £18,000 £7,000 – £70,000
Harm category 2 £8,000 £3,000 – £35,000
Harm category 3 £3,000 £1,500 – £12,000
Low culpability
Harm category 1 £3,000 £1,400 – £12,000
Harm category 2 £1,400 £700 – £7,000
Harm category 3 £700 £300 – £3,000
Micro - Turnover or equivalent: not more than £2 million
Micro Starting Point Range
Very high culpability
Harm category 1 £60,000 £25,000 – £120,000
Harm category 2 £25,000 £10,000 – £50,000
Harm category 3 £10,000 £5,000 – £18,000
High culpability
Harm category 1 £25,000 £10,000 – £50,000
Harm category 2 £12,000 £4,000 – £22,000
Harm category 3 £4,000 £2,000 – £9,000
Medium culpability
Harm category 1 £10,000 £3,000 – £18,000
Harm category 2 £4,000 £1,400 – £8,000
Harm category 3 £1,400 £700 – £3,000
Low culpability
Harm category 1 £1,200 £500 – £3,000
Harm category 2 £500 £200 – £1,400
Harm category 3 £200 £100 – £700

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,

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Guidance on the use of previous convictions

    The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:

    Section 143 of the Criminal Justice Act 2003 states that:

    In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, 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.

    1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
    2. The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
    3. Previous convictions are normally relevant to the current offence when they are of a similar type.
    4. Previous convictions of a type different from the current offence may be relevant where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
    5. Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
    6. If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
    7. In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
    8. The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are less relevant to the offender’s culpability for the current offence and less likely to be predictive of future offending.
    9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
    10. The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
    11. Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
    12. When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
    13. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
    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

Other aggravating factors include

  • Motivated by financial gain

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • Where an offence (which is not one which by its nature is an acquisitive offence) has been committed wholly or in part for financial gain or the avoidance of cost, this will increase the seriousness.
    • Where the offending is committed in a commercial context for financial gain or the avoidance of costs, this will normally indicate a higher level of culpability.
      • examples would include, but are not limited to, dealing in unlawful goods, failing to disclose relevant matters to an authority or regulator, failing to comply with a regulation or failing to obtain the necessary licence or permission in order to avoid costs.
      • offending of this type can undermine legitimate businesses.
    • See the guidance on fines if considering a financial penalty.

     

     
  • Deliberate concealment of illegal nature of activity
  • Established evidence of wider/community impact

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • This factor should increase the sentence only where there is clear evidence of wider harm not already taken into account elsewhere. A community impact statement will assist the court in assessing the level of impact.
    • For issues of prevalence see the separate guidance below:

    Prevalence

    • Sentencing levels in offence specific guidelines take account of collective social harm. Accordingly offenders should normally be sentenced by straightforward application of the guidelines without aggravation for the fact that their activity contributed to a harmful social effect upon a neighbourhood or community.
    • It is not open to a sentencer to increase a sentence for prevalence in ordinary circumstances or in response to a personal view that there is 'too much of this sort of thing going on in this area'.
    • First, there must be evidence provided to the court by a responsible body or by a senior police officer.
    • Secondly, that evidence must be before the court in the specific case being considered with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations about that material can be made.
    • Even if such material is provided, a sentencer will only be entitled to treat prevalence as an aggravating factor if satisfied
      • that the level of harm caused in a particular locality is significantly higher than that caused elsewhere (and thus already inherent in the guideline levels);
      • that the circumstances can properly be described as exceptional; and
      • that it is just and proportionate to increase the sentence for such a factor in the particular case being sentenced.
  • Breach of any court order

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
    • The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
    • Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality.
    • Care should be taken to avoid double counting matters taken into account when considering previous convictions.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

     
  • Obstruction of justice

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.

    Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.

     
  • Poor food safety or hygiene record
  • Refusal of free advice or training

Factors reducing seriousness or reflecting mitigation

  • No previous convictions or no relevant/recent convictions

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    • First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
    • Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
    • When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. 
    • Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders).  In general the more serious the previous offending the longer it will retain relevance.
     
  • Steps taken voluntarily to remedy problem
  • High level of co-operation with the investigation, beyond that which will always be expected

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    Assisting or cooperating with the investigation and /or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence (separate from any guilty plea reduction).

     
  • Good food safety/hygiene record
  • Self-reporting, co-operation and acceptance of responsibility

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    Where an offender has self-reported to the authorities, particularly in circumstances where the offence may otherwise have gone undetected, this should reduce the sentence (separate from any guilty plea reduction).

     

Steps 3 and 4

The court should ‘step back’, review and, if necessary, adjust the initial fine based on turnover to ensure that it fulfils the objectives of sentencing for these offences. The court may adjust the fine upwards or downwards, including outside the range. Full regard should be given to the totality principle at step eight where multiple offences are involved.

Step 3 – Check whether the proposed fine based on turnover is proportionate to the overall means of the offender

General principles to follow in setting a fine

The court should finalise the 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.

The fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to operate within the law.

Review of the fine based on turnover

The court 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. The court may adjust the fine upwards or downwards including outside of the range.

The court should examine the financial circumstances of the offender in the round to enable the court to assess the economic realities of the company and the most efficacious way of giving effect to the purposes of sentencing.

In finalising the sentence, the court should have regard to the following factors:

  • The profitability of an organisation will be relevant. If an organisation has a small profit margin relative  to its turnover, downward adjustment may be needed. If it has a large profit margin, upward adjustment may be needed.
  • 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.
  • Whether the fine will have the effect of putting the offender out of business will be relevant; in some  bad cases this may be an acceptable consequence.

In considering the ability of the offending organisation to pay any financial penalty, the court can take into account the power to allow time for payment or to order that the amount be paid in instalments, if necessary over a number of years.

Step 4 – Consider other factors that may warrant adjustment of the proposed fine

Where the fine will fall on public or charitable bodies, the fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of their services.

The court should consider any wider impacts of the fine within the organisation or on innocent third parties; such as (but not limited to):

  • impact of the fine on offender’s ability to improve conditions in the organisation to comply with the law;
  • impact of the fine on employment of staff, service users, customers and local economy (but not  shareholders or directors).

Step 5 – 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 6 – 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 guideline for Reduction in Sentence for a Guilty Plea (where first hearing is on or after 1 June 2017, or first hearing before 1 June 2017).

Step 7 – Compensation and ancillary orders

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 is 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.

Compensation

Where the offence results in the 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 8 – Totality principle

If sentencing an offender for more than one offence, consider whether the total sentence is just and proportionate to the offending behaviour in accordance with the Totality guideline.

from which the following guidance is taken:

“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 9 – Reasons

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