The new Sentencing Council Guideline for Manslaughter offences came into force on 1 November 2018. This is the first time that comprehensive guidelines have been drawn up for these very serious and difficult cases, which could include an unintended death resulting from a workplace fatality.
The Guideline must be applied to all individual defendants sentenced after 1 November 2018, regardless of the date of the offence. So even if the offence is of some age, the judge’s hands will be tied to sentence under this new regime.
The new Guideline specifically deals with gross negligence manslaughter which includes workplace accidents. (Organisations convicted of corporate manslaughter will continue to be sentenced in line with the separate sentencing guidelines for corporate entities.)
What is gross negligence manslaughter?
Gross negligence manslaughter occurs when the offender (such as a company director) is in breach of a duty of care towards the victim, the breach causes the death of the victim and the offender’s conduct is so bad as to amount to a criminal act or omission. Under the new Guideline, the offence will carry a maximum sentence of life imprisonment with a range of between one and 18 years in custody.
Making the punishment fit the crime
The new Guideline follows the recent trend of courts taking a tougher stance against individuals and organisations, even where offences are not causative of death. Since the new sentencing guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences came into effect in February 2016, there has been a marked increase in the severity of the fines imposed on organisations, with the number of £1 million-plus fines continuing to mount. Lord Justice Holroyde, on behalf of the Sentencing Council, said “This guideline will help ensure sentencing that properly reflects the culpability of the offender and the unique facts of each case”.
Step by step approach
Like other sentencing guidelines, this new Guideline follows a formulaic approach:
- Step 1: The Judge will determine the offence category by assessing the level of culpability of the offender’s conduct in the context of the circumstances of the offence. Importantly, the assessment of culpability no longer includes consideration of the extent to which the individual was aware of the risk of death. In addition, the suggested high culpability factor, that the negligent conduct persisted over a long period of time, has been removed. This is particularly important from a health and safety perspective where a “long standing” breach could potentially occur in a wide range of cases but not necessarily be indicative of high culpability.
- Step 2: The judge will then look at the starting point and category range based on the level of culpability determined in step 1. The starting point is for a single offence of manslaughter resulting in a single fatality. The Guideline dictates that even for the very lowest level of culpability, the judge should be considering a starting point of two years in custody.
- Step 3: Having settled on the starting point for the sentence, the judge will then move on to consider any factors which increase or decrease that provisional sentence. Examples of factors which increase the starting point would be if the offender was motivated by financial gain or if there were previous convictions of a similar nature. From a health and safety perspective, blatant disregard of a very high risk will be relevant. This is concerning given that this factor may feature where a workplace fatality occurs. Factors reducing the starting point could include remorse, lack of pre-meditation and previous good character.
- Step 4: Finally, if the offender has pleaded guilty the judge may apply a potential reduction. An early guilty plea could be the difference between an immediate custodial sentence of between one and four years and a suspended sentence served in the community of up to two years. Any offender wishing to avoid prison under the new Guideline should be considering pleading guilty at the very earliest opportunity to secure this credit if the case is not defendable.
Courts are clearly being steered towards a formulaic approach to sentencing and tougher sentences. All cases have an individual set of circumstances to consider and the judge having the ability to sentence using his/her experience and discretion is often important. Will this latest Guideline lead to judges’ discretion being further eroded?
Ultimately, it remains to be seen how the courts will apply the new Guideline in practice but tougher outcomes, including immediate custodial sentences, seem likely. Companies should take the opportunity to review policies and procedures, and upskill managers and directors in their obligations under health and safety legislation. In addition, taking early proactive advice when things go wrong can make a huge difference to the outcome – an important factor given the stakes are so high for those involved.
For further information, please contact Kate Oliver or Kathryn Turner.