Food firms could face fines of up to £3m under new tougher sentencing guidelines, legal experts warned this week.
The new sentencing guidelines, introduced on 1 February, provide a framework for the courts to take the level of culpability and harm as well as the turnover of a food business into account when determining penalties.
Speaking at the Food Law in Practice conference, organised by The Institute of Food Safety Integrity & Protection (TIFSIP), keynote 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.
He added that, 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 £3m.
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, said the guidelines will increase the trend towards more rigorous sentencing. He said that while 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, warning that 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.
Turning to 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 warned that "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 also be considered by the courts to be misleading.
Jenny Morris, head of TIFSIP, said that the key message from the conference is that the new guidelines will help ensure "the punishment fits the crime".
She added: "While 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."