Criminal Regulatory 8th Nov 2016

Alton Towers and the Application of the Health and Safety Sentencing Guidelines

In a landmark sentencing hearing which was the first major case to fall under the new Health & Safety guidelines issued on 1st February 2016, the Recorder of Stafford, Michael Chambers QC, imposed a fine of £5million on Merlin Attractions, owner and operator of the Alton Towers amusement park at which a disastrous rollercoaster crash left a number of visitors with life-changing injuries in June 2015.

During a two-day hearing, the court heard that the Health & Safety Executive, which brought the prosecution against Merlin, found what was described by the judge as a “catastrophic failure to assess risk and have a structured system of work”. This led to a series of grave operating errors by staff employed at the amusement park, culminating in the decision to override a computer safety warning after an empty test carriage became stuck on the tracks of the Smiler ride during strong winds.

The Recorder made clear that, had the company fought the charges at a trial, the fine would have been £7.5million, but this was reduced by one-third to take account of Merlin’s early guilty plea. The company had publicly accepted liability from day one; its annual turnover was reported as being £385million in 2015 when the accident happened.

The Recorder focused particular attention on the company’s “shambolic” safety procedures, which left injured victims of the crash waiting almost an hour in mid-air for paramedics to be able to get to them for urgent treatment.

This being the first major case to be dealt with under the new guidelines, health and safety lawyers have been scrutinising the outcome for any clues as to the courts’ likely approach. The sentencing remarks have now been published, but do these shed light on the future for health and safety sentencing?

There’s no doubt that the Smiler case was an exceptional one. The prosecution’s expert report concluded that Merlin had fallen far short of the standards expected in conducting a risk assessment, in implementing and managing a safe and structured working system to deal with any faults on the ride, in providing suitable health and safety training and supervision to staff, and was lacking in any suitable system for dealing with the impact of strong winds on the operation of the Smiler.

In applying the guidelines to the facts, the Recorder concluded that the company’s culpability was high. This was due to the presence of two relevant factors: that the identified breaches were allowed to subsist over a substantial period of time, and a failure to put in place measures which were recognised industry standards.

As regards the harm factor, the guidelines remind sentencers that the offence lies in creating a risk of harm. As the Recorder pointed out, the guideline distinguishes between consequence (the seriousness of the harm risked) and likelihood (the chance of that harm actually arising). Whilst there was little apparent disagreement between the parties as to the level of harm risked – here, level A – there was disagreement about the likelihood of such harm arising.

On the facts, the Recorder concluded that the prosecution were correct and the likelihood of harm was high. This conclusion appears to have been reached, at least in part, on the basis that the resetting of the safety equipment with another train carriage already on the Smiler’s track was not an exceptional circumstance: the Recorder’s view was that the company’s argument was based upon too narrow a view of the risk actually created by the operating conditions of the ride.

Having found that the initial harm categorisation was at level 1, the Recorder went on to consider two further significant factors: whether the offence exposed a number of workers or members of the public to the risk of harm (plainly, it did) and whether the offence was a significant cause of actual harm (plainly, it was). As a result of those findings, the Recorder stated that he moved the offence substantially up the category range. For offences initially placed in a lower harm category than this one, the guidelines make clear that these are factors that can move the offence up a category.

This brought the Recorder to an initial starting point of £2.4million, Merlin being a ‘large’ company for the purposes of the sentencing guidelines. The company’s most recent annual turnover figure would raise the possibility that the fine could increase outside the relevant range, as that starting point is based on annual turnover figures of £50million or more. However, it was judged that a proportionate sentence could be achieved within the range.

However, what really appears to have moved the ultimate penalty substantially up the available range was the presence of two aggravating features: the fact that Merlin had been convicted in 2012 of another serious breach of the same legislation, resulting in a fatality at Warwick Castle, and that emergency services’ access to the scene of the Smiler accident was seriously impeded.

What is clear from the judgment is that mitigating factors other than an early guilty plea may be unlikely to hold much sway under the new guidelines. The result reveals that deterrence – both to the company concerned and to others – is key.

Scott Ivill

9th November 2016