On 27 September 2016, Merlin Attractions Operations Limited (Merlin), the operating company of Alton Towers Resort, was sentenced to a fine of £5 million at Stafford Crown Court for breach of section 33(1) of the Health and Safety at Work Act 1974. The sentence was reduced from £7.5 million due to Merlin pleading guilty at the first reasonable opportunity in the Magistrates’ Court.
The incident, which involved a crash on the Smiler rollercoaster ride operated by Merlin, took place on 2 June 2015 and resulted in 16 passengers suffering serious physical and psychological injuries. The court found that Merlin had failed to ensure, so far as was reasonably practicable, that the visitors to Alton Towers theme park were not exposed to material risks to their health and safety.
Applying the new sentencing guidelines for Health and Safety offences which were introduced in February 2016, Judge Michael Chambers QC held that the culpability of the offence was ‘high’ because “[t]he offender fell far short of the appropriate standard” by first, “failing to put in place measures that are recognised standards in the industry”, and second, “allowing breaches to subsist over a long period of time”.
The judge commented that simply relying on initial training by the manufacturer and then hoping it would be ‘cascaded’ down to other engineers was inadequate. The judge also held that there was a high likelihood of harm because the conditions that led to the crash were not unique to that particular day. Safety measures that could have prevented the incident were installed on other rides at the time, and have since been installed on the Smiler rollercoaster.
When weighing up the aggravating and mitigating factors, it was accepted that (i) the company had taken full and extensive steps to remedy the problem, (ii) there had been an exceptional level of co-operation with the investigation and (iii) generally the company had a good health and safety record and procedures in place. However, there were two major aggravating factors, namely that Merlin was recently convicted of a similar offence, and that there was a failure to provide proper access to the site for emergency services. The judge also stated “the earlier acceptance of responsibility was tainted by the willingness to blame its employees when the fundamental fault was that of the company” and was unwilling to take into account as additional mitigation the economic impact of the incident on the company.
The judge therefore held that there were “powerful aggravating factors in a case involving a serious breach of a high duty of care which put thousands at risk of death or serious injury over a long period of time and which has caused devastating injuries to a significant number of people”.
As a result, the judge moved beyond the category range and up the offence range in the Sentencing Guidelines noting that, if there had been a trial, the appropriate fine would have been £7.5 million. In addition to a £5 million fine (reduced due to the guilty plea), Merlin was also ordered to pay the prosecution costs of £70,000.
The fine signals the Health and Safety Executive’s increasing eagerness to secure substantial fines against corporates that fail to ensure the safety of those to whom they owe a duty of care. It also shows the willingness of the judiciary to closely apply the Sentencing Counsel’s new guidelines, and move beyond the categories set should it be deemed proportionate on the facts.