Merlin Attractions Operations Ltd R.

Where a health and safety offence by an organisation has significantly caused a death, the sentencing court must apply the relevant sentencing guideline unless the interests of justice require otherwise. Seriousness depends on the foreseeability of serious injury, the extent of the departure from the required standard, whether the breach was isolated or systemic, and its level within the organisation.

A fine must be punitive, have a real impact, and reflect the organisation’s individual circumstances and resources. There is no tariff and comparative averages provide little assistance. Prosecution costs are considered separately from the fine; they should not be aggregated with it to assess the appropriate sentencing range.

A visitor to Warwick Castle fell from the Bear and Clarence Bridge into a dry moat and died. The appellant company was convicted at Warwick Crown Court of offences under the health and safety legislation arising from its failure to protect visitors and to maintain effective preventive and protective arrangements.

The judge imposed fines totalling £350,000, a £15 victim surcharge, and £145,000 prosecution costs. The company appealed against sentence, contending that the fines, alone or combined with costs, were manifestly excessive. The appeal concerned the application of the Sentencing Council’s Definitive Guideline to a health and safety offence which significantly caused a death.

1. Appeal dismissed. The sentencing fell within the scope of the relevant Definitive Guideline. Under section 125(1) of the Coroners and Justice Act 2009, the court was required to follow it. Earlier authorities remained relevant to its interpretation and application.

2. The seriousness assessment under paragraph 6 of the Guideline supported a substantial fine. Serious injury was plainly foreseeable because the low bridge parapets concealed a deep drop, particularly endangering children. The company had failed for many years to carry out the mandatory risk assessment. A proper assessment would have led to barriers, eliminated the obvious risk, and prevented the death. The breach was nevertheless isolated to this bridge and an uncharacteristic blind spot in an otherwise generally sound safety system; responsibility did not extend beyond the on-site line manager.

3. The failure to respond appropriately to the 2003 advice was an aggravating feature. The company could rely on its good safety record, generally responsible attitude, and remedial works. However, it had contested liability at trial, so there was no prompt acceptance of responsibility. Remedial action attracted limited mitigation because it corrected an ongoing and obvious breach.

4. The company had provided no financial information. The judge was therefore entitled to infer that it could pay the penalty and did not rely on limited resources. The court rejected the contention that costs had to be aggregated with the fine. Properly incurred prosecution costs were separately recoverable under section 18(1) of the Prosecution of Offences Act 1985; where means constrain payment, the proper course is ordinarily to reduce costs rather than the fine.

5. There was no tariff. The fine had to inflict painful punishment, make an impact, and be tailored to the offender’s circumstances, including its inferred wealth. The total fine of £350,015 was within the appropriate range, although towards its upper end. The costs order was just and reasonable.

• Court of Appeal (Criminal Division). The appeal against sentence was dismissed.

• Warwick Crown Court. The appellant was convicted of two health and safety offences and fined £350,000 in total, with a £15 victim surcharge and £145,000 prosecution costs.