Sentencing health and safety offences under the new guideline

Overview

Merlin Attractions Operations Limited, owner of Alton Towers, have been fined £5 million for the health and safety offence of failing to ensure the health and safety of non-employees following the Smiler rollercoaster incident in June 2015. The large fine was determined by reference to the turnover of the company, which was in the region of £385 million in 2015, and then the judge's findings with regard to culpability and harm (both potential and caused). The Company was found to be highly culpable for the offence, which ran a high risk of causing death to the many thousands of people who had used the ride since its installation in 2013.

Human or system error

What is particularly interesting in this case, besides the level of fine, is that despite what was widely regarded as a positive media response by the defendant in the immediate aftermath of the incident, the suggestion in the early days after the incident that it came about as a result of "human error" was viewed as an aggravating factor when sentencing. His Honour Judge Chambers QC remarked that the incident came about as a result of the "defendant company's catastrophic failure to assess risk and have a structured system of work". Judge Chambers said "that the underlying fault was the absence of a structured and considered system, not that of individuals engineers doing their best within a flawed system. Members of the pulic had been exposed to serious risk of one train colliding with another when the controlling computer control system was re-set, having been overrideen to address faults since the opening of the Smiler rollercoaster two years before in May, 2013". This makes clear that it was the system that was at fault, not individuals within it. It also calls counsels caution when seeking to lay blame when talking to the media. Further reflecting on comments made in court, companies should consider their incident response arrangements given the difficulties emergency services faced in treating the injured persons, which was viewed by the Judge as another aggravating feature.

The new sentencing guidelines

The Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Definitive Guideline for sentencing, came into effect in February 2016, and has set fines on a steep upward trajectory across all industries. The Judge commented that businesses that operate "rides for commercial gain are under a very high duty of care to ensure that their users are safe at all times". By analogy, this very high duty must extend to other commercial businesses that are public facing. The Retail & Consumer sector had already seen an unusually large fine before the Guideline was introduced when Hugo Boss was fined £1.2 million in late 2015 following the death of a young boy in one of their stores. However, since then fines have steadily increased and the Guideline has arguably impacted on how courts deal with other related matters. The imprisonment of a restaurant owner for 6 years for gross negligence manslaughter following the death of a customer who was allergic to nuts serves to show that the arena of regulatory crime, particularly where it impacts on the general public, is undergoing dramatic change in the way offences are punished. Companies that fail to put in place measures that are recognised standards in the industry or have serious or systemic failures within their organisation to address health and safety can expect to receive some of the highest fines, and management now falls to be sentenced more harshly too.

How we can help

Addleshaw Goddard has dealt with many cases under the new Guideline and is able to advise you how to avoid systemic failures and ensure that recognised standards are met within your business. We have recently given a number of presentations to boards and senior personnel on the new Guideline, and on how to better manage risk; this has included crisis management exercises and stress-testing procedures. Not only will such advice and training give you the comfort of knowing how to improve the management of health and safety, but it will give you the comfort of knowing that if things go wrong, you know how to respond.

If you are interested in discussing any of these issues please do not hesitate to contact us.