Legal experts say Sentencing Guidelines will impact all food businesses

Publication Date: 18th March 2016

Subject: Food safety

  •  High Court Judge says new Sentencing Guidelines will change the level of fines imposed  
  • QC says the changes in Sentencing Guidelines assist in tackling those who repeatedly commit low level offences 

food law conf

The new Sentencing Guidelines will have a significant impact on food businesses of all sizes according to legal experts presenting at a recent food law conference.

Introduced on 1 February, the Sentencing Guidelines (Guidelines) provide a framework for the courts to take the level of culpability and harm and turnover of an organisation into account when determining appropriate penalties.

The Food Law in Practice conference took place on Wednesday 16 March and was organised by TiFSiP to discuss the latest developments in food law and the implications for food businesses and enforcement officers.

Key note speaker Mr Justice Holroyde, a High Court Judge and member of the Sentencing Council for England and Wales, said that the new Guidelines will in many cases change the level of fines imposed.

He pointed out that the new Guidelines allow courts to take into account the risk of harm resulting from failure to meet legal requirements, as well as the actual harm caused.

If the court determines that a large business, with a high turnover, falls within the highest categories of culpability and harm or high risk of harm, fines could be in the order of £3million.

At the lower end of the penalty scale, a microbusiness, with low culpability and low risk of harm, could face fines of up to £700.

David Travers QC, a Barrister from Six Pump Court, also spoke at the event and said that the Guidelines will increase the trend towards more rigorous sentencing. Mr Travers QC said that whilst the aim of sentencing has always been to both punish and deter, the changes should assist in tackling those who repeatedly commit low level offences.  

Mr Travers QC added that the explicit consideration of risk of harm may be the most difficult aspect of the new Guidelines. As a result, appropriate description of risk of harm will be essential for both prosecution and defence, as the fine imposed would vary significantly dependent on the harm category determined by the court.  

The conference also considered the use of voluntary warnings such as “May contain” and those proposed for the sale of “raw or less than thoroughly cooked products” such as burgers.

Claire Andrews, Barrister and head of Gough Square Chambers, spoke about the use of ‘May contain’ warnings. She said ‘may contain’ warnings could not be relied upon to assist in a due diligence offence in the event of a consumer having an allergic reaction.  She added that the use of a precautionary allergen label, when there is no real risk, could be considered by the courts to be misleading.

David Kidman, Partner at DWF, spoke about the legal principles underpinning the “value of validated food safety management systems” and the use of consumer warnings for products such as rare burgers. He agreed that use of a consumer warning was unlikely to assist in a business claiming due diligence.

Jenny Morris, Head of TiFSiP, said: “Food law exists to protect the public and make sure that there is a level playing field for businesses. But it is complex and if a business gets it wrong it can be extremely costly for all those involved.

“The key message that came through from the conference was that the new Guidelines should assist in ensuring that the ‘punishment fits the crime’. Whilst the majority of food businesses work hard to maintain excellent standards, the new Guidelines will reinforce the message that proper investment in food safety is beneficial both for a business and the consumer.”

TIFSIP is a membership body for individuals and organisations who work to keep food safe, healthy and trustworthy.  In 2016 TiFSiP will continue its work to ensure that all those involved in maintaining high standards of food safety and integrity, wherever they work, are well informed about change and have access to analysis of its impacts.   


Notes to editor  

For further enquiries about the food law conference or the work of TiFSiP, contact Steven Fifer: 020 7827 5922;

About TiFSiP 

The Institute of Food Safety Integrity & Protection (TiFSiP) is a membership organisation for individuals and organisations who work to keep food safe, healthy and trustworthy.

TiFSiP works to ensure members have information to underpin the development of the skills and capabilities necessary to deliver safe food by:

  • Helping members to understand food safety and integrity requirements, through provision of analysis of issues and case studies.
  • Facilitating Continuing Professional Development e.g. through webinars and events (currently UK based), as well as through development of knowledge from the online information provision.
  • Providing opportunities for networking, online, through TiFSiP’s private and public communities.
  • Encouraging collaborative working, formal or informal, with peers and experts across the food community (for example, updating professional colleagues or developing good practice advice).

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