On 20 July 2021 Vue Entertainment Ltd (‘Vue’) was fined £750,000 and ordered to pay costs of £130,000 following a fatal accident at the Star City cinema in Birmingham on 9 March 2018.
Ateeq Rafiq, a 24 year old husband and father, suffered catastrophic brain injuries when his head and neck were trapped under an electronic footrest whilst he was trying to find his phone and keys at the end of a film. A fuse in the control box for the powered chair was found to have blown and the chair was also reportedly missing a bar which would have allowed the footrest to be lifted by hand. Mr Rafiq’s wife and staff struggled for 10 to 15 minutes to release him and after being taken to hospital he tragically died on 16 March 2018.
An inquest in 2019 recorded a verdict of accidental death. The jury foreman commented that there had been “missed opportunities to undertake comprehensive safety checks of the chairs” and that “if the seat had been fitted and maintained in the correct manner, Mr Rafiq would not have died”.
In April 2021 Vue pleaded guilty to offences under the Health and Safety at Work Act 1974 (‘the Act’) of failing to ensure that persons were not exposed to risk to their health and safety, contrary to section 3(1) of the Act, and failing to make suitable and sufficient risk assessment between the 1 January 2007 and 9 March 2018.
The sentencing guidelines (‘the Guidelines’) for organisations which have breached relevant health and safety legislation provide an indication of the process the court will have taken to arrive at this sentence.
Culpability
The first step the court takes when determining the sentence is to consider the culpability of the offending organisation. This ranges from ‘very high’, where there is a deliberate breach, ‘high’, indicating systemic failings to address health and safety risks, ‘medium’, where systems were in place but not adhered to, and ‘low’ for minor failings.
Harm
Since health and safety offences are concerned with the failure to manage risk, the relevant offence is in respect of creating a risk of harm rather than of actually causing the harm itself. The Guidelines require a consideration of both the seriousness of harm risked, with risk of death defined as Level A, and of the likelihood of that harm arising, either as high, medium or low.
The Guidelines also require consideration of whether the offence exposed a number of members of the public to harm and whether the offence was a significant cause of the actual harm (i.e. a cause that more than minimally, negligibly or trivially contributed to the outcome). For the purposes of the Guidelines, actions of victims are unlikely to be considered contributory events.
In delivering the sentence, Judge Heidi Kubik QC noted that it was conceded that “clearly a number of members of the public were exposed to the same risk of harm” and further commented that “the complete lack of a risk assessment was a significant cause of the actual harm that resulted”.
Starting point and category range of fine
The court first considers an organisation’s annual turnover to identify a starting point and the range of the fine as against the culpability and harm category. Vue is a ‘large’ organisation, which reported annual turnover of £115.43m in the accounting period ending November 2020, and as such is subject to larger potential fines.
Aggravating and mitigating factors
The court can further adjust the fine on the basis of aggravating or mitigating factors, such as the offender having previous convictions.
In the present case, the Judge noted that Vue had no previous convictions or matters coming before the court and “a very positive health and safety record”.
Proportionality of fine
The court should then check whether the proposed fine based on the organisation’s turnover is proportionate to their means. The fine must be sufficiently substantial to have a real economic impact which will highlight to both management and shareholders the need to comply with health and safety legislation. When finalising the sentence the court should consider the financial circumstances of the offender in the round, which would include consideration of its profitability.
Other factors indicating a reduction in fine and guilty plea
The court will then consider if there should be any further reduction in sentence based on the offender assisting the prosecutor or investigator and also any reduction on the basis of entering a guilty plea. Vue will have received a reduced sentence for having pleaded guilty to the offences.
Since the Sentencing Guidelines were published in 2016 there has been a general increase in the levels of fines imposed on large organisations, particularly in circumstances where death or serious injury has resulted.
FURTHER INFORMATION
For more information on any issues raised in this blog post, please contact a member of our Criminal Litigation team.
ABOUT THE AUTHOR
Jonathan Grimes is a criminal lawyer specialising in serious and complex criminal cases. He represents individuals and organisations in all areas of financial services and business crime as well as health and safety and related areas. He also continues to advise in a wide variety of other criminal law matters with a particular emphasis on cases with an international aspect, including war crimes, extradition and INTERPOL. He provides advice during investigations, attending hundreds of interviews of many different kinds in the course of his career, and is experienced in defending prosecutions brought by a range of law enforcement agencies.
Charlie Roe is a trainee solicitor. He is currently in his fourth seat in the Criminal Litigation team, after having spent his first seat in the Regulatory team, his second seat in the Employment team and his third seat in the Public Law team.
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