The hotel was fined £350,000 last Friday for keeping its spa facilities – including the pool, sauna and steam room – open last year in what the prosecution described as a ‘flagrant breach’ of regulations imposed to stop the spread of the virus.
However, in an extraordinary departure from usual practice, the hotel was allowed to give its mitigation – the reasons it gave for breaking the law and associated arguments – in writing so it was not heard in open court and was therefore effectively submitted in secret.
In its leader column on Wednesday, this newspaper described the situation as an affront to the principles of open justice and called for full disclosure. The papers were released yesterday after a formal request was made by the JEP.
As a result of their release, it can be reported that the hotel argued that the penalty of £425,000 called for by the prosecution was disproportionate as the Crown had taken as its starting point the figures for the hotel’s financial performance from the year before the pandemic.
The hotel stated that in March-February 2018-2019 and 2019-2020, the hotel’s turnover was £13,422,630 and £13,347,524 respectfully. In contrast, the court was told, turnover between March 2020 and February 2021 was £4,856,894, a drop of 64%.
The Crown sought to set the fine at 20% of pre-tax profits for the year before the pandemic, which the defence said was ‘arbitrary’ and ‘wholly unjust’.
‘The defendant does not deny a breach but it strongly disagrees that the breach should be labelled “flagrant and persistent”,’ the written submission said.
While emphasising that the senior management took responsibility for the failings, the submission says that they had been visited by enforcement authorities who checked rules were being complied with and found no fault. It said that the spa was ‘open’, ‘not hidden’ or ‘done behind closed doors’. Any inquiry, it insisted, would have ‘revealed that they were open’.
‘Unfortunately, senior management thought they knew the correct position after looking at the government’s website, but they were wrong. They accept that they erred and that is why they have pleaded guilty and been fully co-operative,’ the submission said, adding that there was no ‘deliberate intention to flout the Island’s laws or regulations’.
At Friday’s court hearing, the prosecution said that a member of the hotel staff had repeatedly questioned whether the spa facilities should still be open because of Covid, but was consistently assured that they could remain so.
The submission adds that the hotel complied with changing Covid regulations in many other ways and said that it
acted immediately once it was made aware that it was breaking the rules. It also says that it provided accommodation to nurses ‘free of charge’ during the first lockdown.
The hotel’s advocate expressed concerns about the delay in bringing the matter to court for sentencing, complaining that its financial position was ‘worse than it would have been if the hearing was held sooner’.
The lawyer further submitted that other businesses fined for Covid-related breaches had been fined significantly less than the sum being asked for by the Crown. The submission said that there was no financial motivation for the breach, repeating that it was ‘unintentional’.
The Royal Court has offered no explanation as to why it allowed the written submission. The Deputy Bailiff, Robert MacRae, was presiding.
