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Food Allergy Aware and Blake Morgan held a Mock Trial – Food Allergy Prosecution event at the Southampton Offices of Blake Morgan on Wednesday 20 March 2019. This event was a new and innovative training session put together by Tom Walker, Senior Associate Barrister at Blake Morgan and Caroline Benjamin of Food Allergy Aware
Tom devised a true to life scenario that those in attendance could relate to, and this was confirmed a success from the positive feedback received.
“One of the best delivered courses I’ve ever attended. Very informative and a good Q&A time.”
The event was opened with Dr Hazel Gowland who gave us her personal experiences, and some hard facts on the increases of allergies, and how the allergens which are affecting us are changing, through to past experiences and the lessons learnt.
Next up was Lynne Regent, CEO of the Anaphylaxis Campaign. Lynne spoke about recent high profile cases highlighted in the media including the tragic case of Natasha Ednan-Laperouse aged 15, who died after eating a baguette that was prepacked for direct sale at Pret a Manger, Heathrow Airport before boarding a flight on 17 July 2016. We heard how Pret were warned on numerous occasions because of near misses, but chose not to make changes.
Both Lynne and Hazel were able to set the scene prior to the Mock Trial to give the human factor to the proceedings.
Mock Trial – Setting the scene
The company Baby Basiletti’s pleaded guilty to the three charges when they were brought against the company. However, Mr Basiletti as director of the company pleaded not guilty until the day of the trial, and as such the trial changed to a sentencing hearing.
- Charge 1 – company unsafe food supply – (article 14 of Regulation 178/2002)
- Charge 2 – company labelling /description failure (article 15 of Regulation 178/2002)
- Charge 3 – company – general management failure/failure to have records separate to incident (article 5 of Regulation 852/2004)
- Charge 4 – director relates to Charge 1
- Charge 5 – director relates to Charge 2
Court Room set up
The room was set up as a full court room with members of the Blake Morgan team taking on the roles of the prosecution – Tom Walker, Senior Associate Barrister at Blake Morgan and Mark Jones, Legal Director at Blake Morgan – acting as the Court Clerk. The defence barrister was Stuart Jessop, from Six Pump Court Chambers, Stuart is a specialist regulatory and public law Barrister. Much of his work involves Food Law, including food Safety and hygiene, allergens, food labelling, food information and related areas. And Bradley Albuery, Partner at Blake Morgan taking the part of the Judge. Formalities were in place when everyone was upstanding on the judge’s entrance!
Rory O’Driscoll, Trainee solicitor, acted the part of Mr Basiletti
The audience were asked to take on the role of jurors, and as Mr Basiletti pleaded guilty it was explained to them that they would be able to assist with the sentencing as appropriate for each charge.
The jurors, in groups of five, were given evidence pertaining to the charges in the form of handouts. They were also given the Definitive Guidelines for Health and Safety Offences, Corporate Manslaughter and Hygiene Offences for England and the UK – prior to starting the jurors were given time to review the documents to enable them to make an informed decision for the outcome of the case.
Although there were procedures in place and an allergy policy at the restaurant, it was clear from the outset that the training was not sufficient to ensure that these documents were adhered to.
The Case in Hand
The case was based on Baby Basiletti’s promoting that they provide ‘Allergen Free’ dishes and Ruby Denver, who was taking her family out to celebrate a 50th birthday with her two teenage boys, one of whom had a sensitivity to gluten and peas, and the other of whom had a severe nut allergy.
There were two issues on the day that Ruby visited Baby Basiletti
- It centres around the head chef (Corrado) with limited English, changing the recipe for their standard dish ‘lamb mint pea fusilli’. Corrado suggests incorporating an element of cashew to give this a more Mediterranean – Genoese/eastern twist and produces a nutty mint pesto to incorporate into the dish which he keeps in a separate container marked ‘cashew pesto’. This separate container is NOT marked up as containing an allergen in line with the restaurant #14 allergen policy.
- There was a product recall – “Torino green pea fusilli was recalled due to a contamination incident – all product batch code 382968 were to be retained due to food safety issues. The product was labelled gluten free but as a result of a manufacturing error has been found to contain wheat flour and therefore gluten.
In summary, Ruby’s son with the nut allergy was served the pasta dish with cashews and the other son with a sensitivity to gluten and peas was served the recalled pasta containing gluten. Fortunately, the nut allergic son did not eat his pasta and was warned by his sibling and this was a near miss which could have ended in tragic circumstances.
The court took into account the company’s policy and procedures, including the documented training by their staff and colour coded equipment.
Guidance available to the Jurors
It was highlighted in the guidelines that there are nine steps to take into account when sentencing.
STEP ONE: Taking into account the charges, the jurors were asked to look at determining the offence category:
- Very high – deliberate breach of or flagrant disregard for the law.
- High – serious or systematic failure within the organisation.
- Medium – offender fell short of the appropriate standard in a manner that falls between descriptions of ‘high’ and ‘low’. Systems were in place but were not sufficiently adhered to or implemented.
- Low – offender did not fall far short of the appropriate standard e.g. significant efforts were made to secure food safely.
The jurors were then asked to consider the potential harm level from Category 1 serious adverse effects on individuals including where supply was to groups of high risk, Category 2 medium risk and Category 3 low risk
STEP 2: It is a requirement to focus on the organisation’s annual turnover to reach a starting point for the fine, and further adjustments are considered within a category range for aggravating and mitigating features. The jurors were given the range of fines appropriate dependent on the size of the business turnover and taking into account the culpability and risk.
STEP 3: – check whether the proposed fine based on turnover is proportionate to the overall means of the offender.
STEP 4: – consider other factors that may warrant adjustment of the proposed fines.
STEP 5: consider factors which indicate a reduction, such as assistance to the prosecution.
STEP 6: – reduction for a guilty plea.
STEP 7: compensation and ancillary orders – the court can issue a prohibition notice, ensuring the defendant cannot run a food service business in the future and if compensation should be awarded as appropriate.
STEP 8: – totality principle: if more than one offence, consider if the total sentence is just and proportionate, in line with ‘Offences Taken into Consideration’ guidelines.
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.
There was much discussion amongst the jurors and it was highlighted by Hazel Gowland from Allergy Action that, had this been an actual trial there would have been much more evidence produced and a deeper look into all the circumstances that occurred on the day, there was a hung jury split between ‘high risk’ and ‘medium risk’, with a few electing to go towards ‘very high risk’ due to the potential risk of anaphylaxis and possible death of Ruby’s son who had the nut allergy. Had he not been on his mobile phone at the time of the food being delivered!
The trial included much court room banter, with the judge intercepting at key points to highlight areas of interest for the jurors and to keep the defence and prosecution in check when they stepped out of line!
The proposed fine to the restaurant was £12,000, with additional court costs of £24,000 and a fine to Mr Basiletti, the company Director, of £2,880 with the penalty totalling nearly £40,000!
Attendees were from all sectors of the hospitality industry including: education catering, wholesalers, trainers and consultants, public house sector, restaurant chains and contract catering, to list but a few. Feedback from the day was extremely positive and some of the outcomes that were highlighted included:
- Documentation is absolutely everything – not complex lists, but easy to implement systems that staff buy into from day one.
- Nobody has to die for you to be reckless – but not communicating effectively across your business if you are preparing and serving food or beverages is reckless.
- Lack of training and staff awareness is also neglecting your team – as a criminal offence can occur even without harm.
- Ignorance is not a defence in court.
The Mock Trial indicated the importance of an allergy policy both internally and externally for food business, accurate allergy tables and ensuring staff are trained to an appropriate level commensurate to their role to ensure they comply with the businesses allergy policy. Its great to have a system in place but all staff need to know how it works and their personal responsibility under the law.
Steps for an effective food allergy policy
- Audit your business in regard to allergens
- Choose a knowledgeable food allergy auditor.
- Review your allergy tables.
- Encourage your outlets to check the allergy information on receipt and raise potential risks.
- Mystery diner experiences – specific to a FreeFrom customer.
- Review current inhouse processes / HACCP.
- And challenge your staff to go FreeFrom for a week or two.