James Taylor, director of the Royal Yacht, appeared in the Royal Court yesterday on behalf of the establishment after the fine was handed down in April. The St Helier business admitted illegally opening its spa facilities over the course of three months.
During the appeal it was heard that the business had been hit so badly by the pandemic that paying the full fine would ‘drive it into bankruptcy’.
Advocate Michael O’Connell, representing the hotel, criticised the service provided by his client’s previous lawyer, describing the advice offered to the business as ‘inept’ and ‘inadequate’. He also said it was unusual that the company’s previous legal representative had provided virtually all submissions to the sentencing court in a written rather than oral format. Advocate O’Connell went on to claim that the previous lawyer had failed to fully assert to the court the financial situation the company found itself in.
‘There was woefully inadequate advice supplied to this company. The failure to mitigate orally in court is no fault of Mr Taylor. It was not of his design. It was entirely the initiative of the defence counsel,’ Advocate O’Connell said.
He also criticised the process by which the court had reached its sentencing verdict. Using sentencing guidelines for prosecuting health-and-safety cases, Advocate O’Connell said the £350,000 fine represented a punishment three times higher than the largest ever issued and added that the comparative background used by the court to reach its conclusion had been ‘plucked out of thin air’. Advocate O’Connell told the court that this background related to a petrochemical company starting a large fire at La Collette fuel farm by attempting to decommission a petrol pump using an electric saw.
In that incident, he said, there had been a real risk of harm, but, he argued, due to the stringent hygiene measures and strict controls put in place in his client’s premises at the time of the offence – and the fact there was no evidence anyone had contracted Covid at the facilities during that time – a similar level of risk had not been present in the Royal Yacht Hotel’s case.
Crown Advocate Matthew Maletroit, prosecuting, said that the court was open to depart from health-and-safety-case sentencing guidelines, as the case dealt with a risk to the Island’s entire community rather than employees of a company.
‘An important distinction needs to be made. It is not right to point to the sentences from the health-and-safety cases. We are dealing with a risk of harm to the public at large: the community. This is a highly transmissible disease that has resulted in death and serious disease,’ Advocate Maletroit said. He also questioned Advocate O’Connell’s claim about the level of risk present while the offences were taking place. He added: ‘If there was no risk of harm, why would the government have closed these types of facilities in the first place?’
Commissioner Julian Clyde Smith, presiding, said the court would make a judgment at a later date. Jurats Charles Blampied, Elizabeth Dulake and Paul Nicolle were also sitting.