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The Railway – a stark warning to food operators?

The recent fine handed down to a pub and restaurant operator for a single food safety offence has caused surprise and concern to many in the hospitality and safety industries, at a time when the Sentencing Council is consulting on dramatically larger fines. Is this the start of substantially increased fines for safety offences or is it an inconsistency in current sentencing practice?     

After enjoying a Christmas dinner at the Railway Hotel in Hornchurch, Essex in 2012, more than thirty customers fell ill. Tragically, one of those customers died two days later after eating the reheated turkey at the premises. 

Following a year-long investigation by Havering Council, the company was charged with one offence of placing food on the market that was unsafe and unfit for human consumption. It concluded that the reason for the illnesses was food poisoning, caused by bacteria that developed because the turkey was either not cooked adequately or not reheated properly.

Significantly, during its investigation, the Council found that the manager and chef at the premises falsified records relating to the cooking and cooling of the turkey meat. Subsequently, both the manager and the chef were charged with placing unsafe food on the market and perverting the course of justice.

A six week trial

During a trial at Snaresbrook Crown Court, the company argued that it took all reasonable precautions and exercised all due diligence to prevent the commission of the offence. However, after many hours of deliberation, the jury convicted the company of placing unsafe food on the market. 

Whilst the manager and the chef were both cleared of placing unsafe food on the market, they were convicted of perverting the course of public justice.

A brave new sentencing world

On 23 January 2015, the company was fined £1.5 million for a single offence. This is, by a vast margin, the biggest fine ever for a food case. This case may be an outlier and may be towards the top of the sentencing spectrum, however it is very likely indicative of the sort of fine expected in the future.

Fatal food safety cases are extremely rare which demonstrates how robust the industry is in its control measures. There were fewer than 60 companies fined in 2013 and across that group the mean fine was approximately £1,800. According to the Sentencing Council’s research, this average has remained fairly stable over the last few years and so the magnitude of this fine has sent shockwaves throughout the retail and hospitality sectors. 

The Sentencing Council is currently consulting on fines for food safety offences. Under the proposals, fines for businesses with a turnover greater than £50 million will start at £10,000 for the least serious offences, but alarmingly will start at £1.2 million for the most serious offences. For those businesses that have a turnover much greater than £50 million, the fines could be considerably greater. 

Much of the media attention surrounding this case has been focused on the prison sentences awarded to the manager and chef of 18 months and 12 months respectively. Whilst it is extremely unusual for individuals to be given prison sentences for food safety offences, it is worth noting the manager and chef were convicted only of perverting the course of justice, an offence which frequently attracts a prison sentence.    

So what does the future hold? When speaking at a DWF event in January, the Chairman of the Sentencing Council explained that the current proposal is unlikely to change significantly and that means that whilst the sentences in this case have grabbed headlines, it is unlikely that such sentences will be exceptional in years to come and businesses need to prepare.

Large businesses should lead from the front and have robust systems and procedures in place for food safety and health and safety. However, businesses of such a size cannot engineer out all risk within their businesses because their systems and procedures rely on their people to implement them and people are not infallible – but with fines of this level possible, it is time to revisit corporate due diligence systems to ensure that they are giving the protection needed? 

Following our recent round table events to discuss the proposals, we have prepared a response which we have shared with the Sentencing Guidelines Council. We have also written a summary of the key themes which emerged from the discussions.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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Dominic Watkins

Partner - Head of Food Group

I am Head of DWF’s internationally renowned food sector group as well as being Head of Regulatory in London.

Claire Notley

Associate

I am an Associate specialising in regulatory law and enforcement.