Alton Tower's £5 Million Fine Provides High Profile Demonstration for New Sentencing Guidelines in Health and Safety
Thursday, 29th September 2016
The 5 million fine handed to Alton Towers owners, Merlin Attractions Ltd following their guilty plea to an offence under the Health and Safety at Work Act 1974 (section 3) has firmly put the health and safety sentencing guidelines introduced last February into the commercial consciousness of organisations in the UK (https://www.sentencingcouncil.org.uk/about-sentencing/about-guidelines/). These guidelines were introduced to provide a systematic approach to sentencing replacing the previous fairly ad hoc system that was based on precedent (R v Howe for instance) and the judgement of the court.The new system has a number of steps to be followed - steps one and two dealing with culpability/harm and turnover respectively are the most important.
Step 2 dealing with turnover has prompted a lot of interest. Merlin Attractions had an annual financial turnover of ?250 million according to June's committal hearing. This puts them into the 'Large Organisation' bracket defined by a turnover of £50 million and over, putting them in line for consideration of very large fines. In fact it may also put them at the mercy of the 'very large organisation' caveat of the sentencing guidelines, which allows judges "to move outside the suggested range to achieve a proportionate sentence". Such a caveat was most noticeably used against Thames Water for a relatively 'low category harm' environmental pollution prosecution, which resulted in a fine of 1 million because of a very large turnover (the environmental sentencing guidelines have been around for a year or so longer than the health and safety version so are useful indicators of how the health and safety guidelines may be used).
Step 1 is the culpability and harm element of the guidelines. From the judge's comments such as "(T)his was a needless and avoidable accident in which those who were injured were lucky not to be killed" would suggest that there was a very high culpability and harm category being considered. As explained above moving into Step 2 the judge would be looking at the 'Large Organisation' bracket giving a sentencing category range of 2.6 million to 10 million with a starting point of 4 million. The judge went on to say that before the early guilty plea discount the fine would have been 7.5 million. Therefore, although there was obviously some mitigation put forward by the defence the judge obviously believed that the company required a severe punishment, placing it at the high end of the sentencing range. Though this may have been inflated by the 'very large organisation' caveat described above.
This case also highlights the often misunderstood concept in health and safety prosecutions the requirement to only need to demonstrate 'the risk' of something unfortunate happening. The sentencing guidelines when categorising 'harm' uses the phrase 'seriousness of harm risked'. So an event need only to have risked death to achieve the highest level of seriousness (Level A) in the harm categorisation process. The words used by the judge that those injured "were lucky not to be killed" gives an indication of his thinking on this. It is interesting that the two of the largest fines following the introduction of the Sentencing Guidelines did not involve death - the other case being the 2 million fine for the damaged hands of two workers at the site of giant company Tata steel.
The significance of the change to the new sentencing guidelines has already hit home to some organisations. The most high profile manifestation of this was the 25 million set aside in accounts by Balfour Beatty in anticipation of the effect of the new fining system on their foreseen health and safety issues.