Initially in 2014, public concern over sentencing in high profile cases prompted the (then) Lord Chancellor’s request for a guideline for so called ‘one punch’ manslaughter offences. A consultation was then launched in July 2017 by the Sentencing Council into manslaughter offences in general. The Sentencing Council stated that their aim was to ensure that “all sentences are proportionate to the offence committed and in relation to other offences”. The guideline covers various forms of manslaughter, including gross negligence manslaughter which can arise in the context of safety failings (for example, relating to health and safety, food safety, fire safety and product safety legislation).
The offence of gross negligence manslaughter arises when death is caused by a grossly negligent breach of a duty of care towards a victim. This offence may occur in a wide range of circumstances. This explains why the Sentencing Council found it “particularly challenging” to develop the guideline and why an “overly mechanistic application” of the factors outlined for determining an offender’s culpability is discouraged to ensure flexibility.
In its response to the proposed guideline, the House of Commons Justice Committee outlined its concern over the potential for “inappropriately long custodial sentences” to result from certain proposed culpability factors. A number of these concerns have been addressed by changes made to the final guideline. For example, medical practitioners may have received much longer sentences under the proposed guideline as a clear awareness of the risk of death arising from the negligent conduct in question could result in ‘high culpability’ (even though such a risk may arguably be inherent in serious clinical decisions). However, the final guideline instead states that a “blatant disregard for a very high risk of death” is indicative of ‘high culpability’. The proposed ‘high culpability’ factor of negligent conduct which “persisted over a long period of time (weeks or months)”, which is common in safety failings, has been removed. Furthermore, “blame wrongly placed on other(s)” has been amended in the list of aggravating factors in the final guideline; the investigation must have been “hindered and/or other(s) … suffered as a result of being falsely blamed by the offender”. This higher threshold is likely to reduce the potential for offenders being penalised for highlighting any role played by others.
Despite these changes made after the consultation, custodial sentences are likely to increase under the new guideline. When the Court deems an offender to be of ‘very high culpability’ (which may be indicated by the extreme character and / or combination of ‘high culpability’ factors) the sentence range is ten to eighteen years’ custody, with a starting point of twelve years. Stepping down one level to the ‘high culpability’ category, the range is six to twelve years’ custody, with a starting point of eight years. Six indicative factors are listed for ‘high culpability’, including whether the offender took a leading role if acting with others and if “the negligent conduct was motivated by financial gain (or avoidance of cost)”; the latter may be of particular relevance in cases of negligent conduct causing the death of an employee, for example, if health and safety measures are not implemented in order to keep down costs. The guideline also sets out a custodial sentence as the starting point for offences of ‘medium culpability’ and ‘lower culpability’. For example, if an offender’s conduct is a lapse in an otherwise satisfactory standard of care and therefore deemed to be of ‘lower culpability’, the sentence range is one to four years’ custody with a starting point of two years.
The likely increase in custodial sentences for gross negligence manslaughter offences follows a general trend towards more stringent penalties for safety failings, including significantly larger fines for offending organisations.
The Manslaughter Definitive Guideline comes into force on 1st November 2018.
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Richard Reichman is a partner specialising in corporate crime, financial crime and regulatory investigations. He has extensive experience in a broad range of regulatory offences, such as health and safety (generally following major or fatal incidents), environmental, food safety, fire safety and trading, as well as financial offences such as fraud, bribery, insider dealing and money laundering.
Bethan Cowlam is a legal assistant, specialising in regulatory investigations and financial crime. Her experience includes health and safety (generally following fatal/serious accidents), environmental investigations, money laundering and fraud.