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Sentencing Council publishes new guideline on gross negligence manslaughter 

Blogs08/10/2018

This new guideline is likely to result in increased penalties for individuals responsible for fatal workplace accidents. 

*https://www.sentencingcouncil.org.uk/wp-content/uploads/Manslaughter_Definitive-Guideline_WEB.pdf

For the first time the Sentencing Council has drawn up a comprehensive sentencing guideline for manslaughter cases, including gross negligence manslaughter. Individuals responsible for workplace fatalities can be prosecuted for gross negligence manslaughter when they are in breach of a duty of care towards the victim and that breach causes the death of the victim and, having regard to the risk involved, the individual’s conduct was so bad as to amount to a criminal act or omission. An example may be an employer’s long-standing and serious disregard for the safety of employees, motivated by cost-cutting which has caused the death. 

Current sentencing practice in gross negligence cases is generally lower in the overall context of manslaughter cases. The new guideline aims to give consistent sentencing for all forms of manslaughter. The offence range for gross negligence manslaughter is one to 18 years in prison, but the maximum sentence (if the judge departed from this) is life imprisonment. The guideline applies to individuals aged 18 and over, sentenced in England and Wales on or after 1 November 2018, regardless of when the offence took place.

Approach to sentencing

The gross negligence section of the guideline sets out a nine step approach which the sentencing judge must follow.

  • Step one involves determining the offence category. This reflects the severity of the offence by reference to culpability and harm.
  • At step two, the judge considers the starting point and category range. The starting point defines the position within a category range from which the judge starts to calculate the provisional sentence.

Once the judge has decided upon a provisional sentence, they then consider whether there are any aggravating features which justify an increase in sentence. These include previous convictions, ignoring previous warnings and the number of people put at risk of harm. The judge then balances this with any mitigation factors such as remorse, self-reporting, good character and factors beyond the control of the offender, such as whether they lacked the necessary expertise, equipment, support or training, which contributed to the negligent conduct.

  • Steps three to seven involve taking into account assistance offered by offenders to the prosecutor or investigator, credit for a timely guilty plea, dangerousness, the totality of the sentence and any compensation or ancillary orders, such as director disqualification in accordance with Section 2 of the Company Directors Disqualification Act 1986, for up to 15 years.

Only ten offenders were sentenced for gross negligence manslaughter in 2016, so this is a rare offence, but the circumstances in which a duty of care can arise are very wide. This makes a definitive guideline more difficult to draft, so there is a degree of flexibility in determining the culpability of an offender and the guideline specifically states that the “court should avoid an overly mechanistic application” when determining culpability and the offence category.

The new guideline sets out four levels of culpability for those convicted, with different sentencing ranges:

  • “Very high culpability” offences – range of ten to 18 years, with a starting point within the range of 12 years
  • “High culpability” offences – range of six to 12 years, with a starting point within the range of eight years
  • “Medium culpability” offences – range of three to nine years, with a starting point within the range of six years
  • “Lower culpability” offences - range of one to four years, with a starting point within the range of two years.

Factors indicating high culpability that are likely to be relevant to health and safety cases include serious offences where the offender showed a blatant disregard for a very high risk of death resulting from the negligent conduct and that conduct was motivated by financial gain (or avoidance of cost).

In relation to harm, the harm caused will inevitably be of the utmost seriousness in all manslaughter cases. The loss of life is already taken into account in the sentencing levels at step two, when the judge considers the starting point and category range.

Impact of new guideline

This new guideline, which follows on the back of the 2016 guideline for health and safety offences and corporate manslaughter, reflects the increasingly strong line that is being taken by the courts when sentencing for health and safety breaches. The level of fines imposed on companies has risen dramatically over the past two years and individuals convicted of gross negligence manslaughter are now more likely to face tougher custodial sentences.

This offence is particularly newsworthy at the moment, with the Hillsborough prosecution of the match commander who recently pleaded not guilty to 95 charges of gross negligence manslaughter. There have also been calls by the public for certain individuals to be prosecuted following the Grenfell Tower tragedy.

Keoghs Comment

There are steps that organisations and individuals can take now. For example, they should continue to ensure that safety management is a top priority, review their crisis management policy, access immediate areas for improvement, be proactive with audits, document good safety practices, and respond to near misses (and learn from them). Further, they should ensure adequate insurance cover is in place and obtain specialist advice (when warranted), to help with this process.