Serving food to the public? Then you need to know about the new Manslaughter Sentencing Guidelines that came into force on the 1st of November 2018. These mark the first time the Sentencing Council has provided instructions to courts on how to deal with offenders convicted of gross negligence manslaughter.
Why might this apply to the food industry?
As the owner, director or manager of a food business you have a duty of care to your employees and customers, to take all steps which are reasonably possible to ensure their health, safety and wellbeing. Any negligent employer or manager (over the age of 18) in England or Wales, who blatantly disregards employee or customer safety, would be impacted by these guidelines, whether this be a food safety or health and safety breach.
Case Study - Takeaway Bosses Jailed
In November 2018 two takeaway bosses were jailed for the manslaughter of a 15-year-old girl who suffered an allergic reaction to a meal. The customer had highlighted her nut allergy when placing her order but systems and processes to manage allergen control at the Royal Spice Takeaway in Oswaldtwistle, Lancashire were lacking. The takeaway had no way of knowing what ingredients were in the food supplied as the menu contained no information about allergens and no record was kept of the ingredients used in dishes.
Applying the new manslaughter sentencing guidelines, the judge awarded custodial sentences of 3 years for the owner and 2 years for the manager.
The judge said:
"It is hoped that the message is heard that those who fail to take proper care in the supply of food to the public will face significant custodial sentences if a death results. I hope that this tragic case adds to the growing awareness in the food industry of what can happen if allergies are not taken seriously. Those who fail to heed the warnings and who continue to flout food safety regulations may find the courts taking a harsher view in the future."
What is gross negligence manslaughter?
In the context of health and safety or food safety, a gross negligence manslaughter prosecution requires a ‘gross’ breach of a duty of care. Case law indicates that the individual concerned had 'such a disregard for life and the safety of others that it amounts to a crime against the state and conduct deserving punishment’.
The breach doesn’t have to have been the primary or only cause of death, so long as it was a contributing factor.
How the guidelines work
- They provide a step-by-step guide for courts sentencing those convicted of gross negligence manslaughter.
- The guidelines are designed to provide more consistency in sentencing manslaughter cases and to increase jail terms for gross negligence manslaughter to fall in line with other manslaughter offences.
- Offence brackets are categorised according to the level of culpability.
- Any longstanding and serious disregard for the safety of employees or customers, motivated by financial gain (or avoidance of cost), would warrant the highest level of prison sentence; between ten and 18 years. Where the evidence shows negligent conduct had persisted for a long period of time, a jail sentence could fall between six and 12 years. Where there had been a lapse in otherwise satisfactory standards of care, the jail term will likely be in the range of one to four years.
- Aggravating factors include previous convictions, an offender ignoring earlier warnings or putting others at risk of harm, or involving others through coercion, intimidation or exploitation.
- Mitigating features are a lack of previous convictions, attempts to assist the victim, cooperation with the enforcing authority investigation, that the offender was stressed or pressured, or, for reasons beyond their control, they lacked the necessary equipment, training or knowledge which contributed to the negligent conduct.
- Other punishments like director disqualification, for a maximum of 15 years, are also possible.
Is prison avoidable?
Even for the lowest level of culpability, where a death occurred because of a lapse in usually good health and safety or food hygiene standards, the guidelines say prison sentences are still appropriate, with a recommended range from one to four years.
The above legal case and comment from the Judge highlights that food businesses are not immune to the application of the new Manslaughter Sentencing Guidelines. Allergen control, in particular, has received a lot of media attention of late, with even small amounts of allergens potentially triggering allergic reactions and anaphylaxis resulting in death. It is therefore vital that food businesses take their duty of care seriously and provide clear and accurate information about allergens in their food.