The case against Merlin Attractions Operations Ltd, the company which operates Alton Towers, brought by the Health & Safety Executive (HSE) was heard by the Recorder of Stafford, His Honour Judge Michael Chambers QC on 26 and 27 September and provided the first high profile opportunity for regulatory lawyers to appreciate how the courts will apply the Guidelines and what differences they will make to sentencing in such cases.
Guidelines
The Guidelines came into force on 1st February 2016 regardless of the date of the offence and extend not only to health and safety offences but also to corporate manslaughter, food safety and hygiene offences.
Facts
The accident giving rise to the prosecution occurred on 2nd June 2015 when a rollercoaster carriage on the Smiler ride carrying 16 passengers collided with an empty stationary carriage which had “valleyed” on the tracks due to high head winds, having been sent around the track on a test run by engineers who were called to address a fault in the system.
The Recorder found that the presence of the stationary carriage on the track could and should have been identified either visually, from CCTV cameras or by simple mathematics since it had not been accounted for by returning to the ride station.
The resulting high-impact collision resulted in life-changing injuries to nearly all of the passengers and in two cases partial amputation of a leg.
Pleas
The company pleaded guilty to an offence under Section 33(1) of the Health and Safety at Work Act 1974 in that it failed to conduct its undertaking in such a way as to ensure insofar as was reasonably practicable that visitors to Alton Towers Theme Park were not exposed to material risk to their health and safety.
Sentencing
Applying the new Guidelines, the Recorder found that culpability was High – the company fell far short of the appropriate standard by firstly, “failing to put in place measures that are recognised standards in the industry” and secondly, “allowing breaches to subsist over a long period of time” and that the risk of harm was at Level A – death or serious physical impairment with lifelong dependencies on others.
Given the companies turnover – £367m in 2012, £395m in 2013, £412m in 2014 and £385m in 2015 – the company fell into the “large” category in the Guidelines.
Applying the table in the Guidelines, the Recorder found the starting point for a financial penalty was between £1.5m and £6m.
Aggravating and Mitigating Features
The Recorder identified as the first aggravating feature a previous conviction of the company at its Warwick Castle site involving a failure to carry out a risk assessment. On appeal against the sentence imposed in that case in December 2012 – a case that was concluded just six months before the Smiler rollercoaster ride was opened at Alton Towers, the Court of Appeal commented that “The Appellant fell seriously short of the applicable standard – it failed over a period of many years to carry out the necessary mandatory risk assessment” -. The Recorder regarded this conviction as a serious aggravating factor – commenting that “alarm bells should have been ringing”.
The Recorder also identified poor emergency access to the scene of the accident as a further aggravating feature, resulting in the injured passengers being trapped in the carriage for between four and five hours before being rescued, with many suffering from severe loss of blood, but accepted the mitigation advanced that the company had taken full and extensive steps to remedy the problem and had provided “an exceptional level of cooperation with the investigation”.
Furthermore, whilst the Recorder gave credit to the company for its early guilty plea, he found that it was tainted by an earlier press release in June 2015 which sought to blame its employees when the fundamental fault was that of the company, in that it failed to conduct a suitable and sufficient risk assessment, implement an effective safe system of work to deal with faults on the ride, disseminate to its staff health and safety information, including training and supervision concerning the safe operation of the ride, especially procedures to be followed when dealing with a “zone stop” fault and implement and properly manage an effective system to deal with the impact of wind speed on the operation of the ride.
The Recorder imposed a fine of £5m and ordered the Defendant to pay HSE costs of £70,000.
Lessons
Consideration of the sentencing remarks in this case indicate how important it is for defendants faced with such an investigation and subsequent charges to make informed, early and appropriate admissions of responsibility and to resist the temptation to avoid responsibility by suggesting that the fault lay with individual employees. A company should also take immediate steps to address any deficiencies identified by their own internal investigation and experts and by the HSE. Co-operation with the investigation is also a powerful mitigating factor.
David Wallis, a past President of the Showmen`s Guild of Great Britain and a longstanding client commented “No one in the industry, whether static amusement parks like Alton Towers or members of our Guild want accidents like this to happen – in fact, the Guild has worked consistently with the Health and Safety Executive to ensure proper maintenance of rides, including annual inspections and that there is the power to issue an immediate Stop Order on rides that are considered unsafe. The Safety Committee of the Guild worked alongside the Health and Safety Executive in drafting the first Code of Safe Practice at Fairs published by the HSE in 1984 and continues to review that Code and has supported the Executive in publishing safety manuals covering individual types of fairground rides”.
Guidelines and Sentencing Discretion
There will always be a tension between the desired aim of the Sentencing Council to ensure that there is a uniform approach to sentencing in the courts and the obligation of the sentencing judge to do justice according to the circumstances.
Whilst uniformity of approach to sentencing is to be welcomed a sentencing judge must do justice to a particular offender and a particular case. This means that whilst he/she is obliged to begin with a careful consideration of the guidelines he/she is entitled to deviate from them when satisfied there is good reason to do so.
It is not yet known whether the company will appeal the £5m fine or whether it will accept that the Recorder struck the correct balance between following the sentencing guidelines and taking into account the aggravating and mitigating factors of this particular offence outlined above.
Aidan Carr, Consultant, Regulatory Team