UK Law and Practice Contributed by: Lisa Lunt and Sarah Samuel, Fletchers Solicitors
• up to two years’ imprisonment and/or an unlimited fine on indictment; and • up to 12 months’ imprisonment and/or an unlimited fine on summary conviction. Sentencing in HSWA cases often reflects the serious - ness of the risk created, the harm caused and the scale of the defendant’s operations. Penalties Under the Consumer Protection Act 1987 (CPA) Under Part II of the CPA, breach of product-specific safety regulations or enforcement notices (including prohibition or suspension notices) constitutes a crimi - nal offence. Penalties typically include: • up to six months’ imprisonment and/or an unlim - ited fine (summary only for most offences); and • up to three months’ imprisonment and/or an unlim - ited fine for breach of suspension notices. As with the GPSR, a statutory due diligence defence may be available. Sentencing Approach There is no bespoke sentencing guideline specifically for product safety offences. In practice, courts fre - quently apply the Sentencing Council Guidelines for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences, particularly where corporate defendants are concerned. These guidelines emphasise risk of harm, actual harm, cul - pability and turnover when determining fines. Enforcement and Prosecution Trends Trading Standards authorities and the HSE regularly bring prosecutions for serious or persistent breaches, although reported cases remain relatively limited. Illus - trative authorities include: • R v Winter ( Martin ) (2024) EWCA Crim 711 (pros - ecution for breach of health and safety regulations; gross negligence manslaughter was also consid - ered); • R v Kayani [2014] EWCA Crim 2635 (GPSR enforcement);
• R v Bettridge [2010] EWCA Crim 41 (product safety offences); • R ( Junttan Oy ) v Bristol Magistrates ’ Court [2003] UKHL 55 (scope of health and safety duties); and • R v Patchett Engineering Ltd [2001] 1 Cr App R (S) 40 (sentencing for safety breaches). In practice, however, regulators increasingly prioritise recalls, corrective action and compliance-led out - comes, with criminal prosecution generally reserved for cases involving serious risk, repeated non-com - pliance or a failure to act on known safety concerns. 2. Product Liability 2.1 Product Liability Causes of Action and Sources of Law Product liability claims in England and Wales are gen - erally advanced through three routes: statutory strict liability claims under the CPA and claims in negligence and contract. The CPA provides a regime of strict liability, under which a producer may be held liable for damage caused by a defective product without proof of fault. Liability extends beyond manufacturers to include own-branders and importers, and in some circum - stances suppliers who fail to identify the relevant pro - ducer. Claimants must establish defect, damage and causation. A product will be defective if it does not meet the level of safety persons are generally entitled to expect, taking into account all relevant circumstances. The courts have emphasised a flexible and fact-sensitive approach to this assessment, including consideration of warnings, regulatory compliance and the product’s risk-benefit profile. Damage under the CPA is limited to personal injury, death, and certain categories of property damage, subject to statutory thresholds. The claimant must also demonstrate a causal link between the defect and the damage. Negligence claims require proof of a duty of care, breach of that duty, causation and foreseeability, and
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