Manslaughter consultation shows intent but lack of clarity

The Sentencing Council has recently issued a consultation to consider increasing the length of custodial sentences in cases of individual manslaughter including, in a health and safety context, manslaughter by gross negligence.

The consultation, which runs until 10 October 2017, comes shortly after the introduction in February 2016 of new Sentencing Guidelines for corporate manslaughter, health and safety and food safety offences. The net effect of those Guidelines was to dramatically increase the levels of sentences which could be imposed against both companies and individuals convicted of health and safety related offences. The Guidelines were explicit in providing courts with punitive sentencing powers.

In addition the 2016 Guidelines provided a much more prescriptive and linear framework for courts to follow when sentencing. They directed courts to consider not only a defendant’s level of culpability and the extent to which they had fallen short of the required standard, but in addition the likelihood of the harm risked, the actual harm which did occur, and also the defendant’s turnover. These considerations produced a sentencing bracket and a suggested starting point within that bracket, from which the court could impose a sentence taking into account all the factors in a case.

By contrast, no such guidelines currently exist for individual manslaughter offences and, at present, there are no mandatory sentences for manslaughter, with the length and potential suspension of a custodial sentence largely down to the court’s discretion.

The Sentencing Council’s proposed changes suggest aligning the sentencing process for individual manslaughter offences with the 2016 Guidelines, seeking views on the implementation of a similar thought process. For example it is suggested that, should the Guidelines become effective, courts will initially consider an offender’s level of culpability and assign it to one of four categories ranging from ‘very high’ to ‘low’. Following this exercise courts will then be presented with corresponding sentencing brackets and starting points, as is the case under the 2016 Guidelines.

As per those Guidelines, once a starting point has been identified, courts are directed to consider additional factors which act to either aggravate or mitigate the offence and, by extension, the ultimate sentence imposed.

Whereas the maximum sentence for manslaughter is currently life imprisonment, research undertaken prior to the issue of the proposed Guidelines indicates that in the preceding 12 months the sentences imposed for gross negligence manslaughter ranged from two years imprisonment suspended for two years, to seven and a half years imprisonment. Given such a wide variance, little guidance can initially be drawn from such sentences.

Should the new Guidelines become effective, the suggested sentencing bracket for an offender found to be of a medium level of culpability (in which it is expected the vast majority of gross negligence manslaughter cases will fall) is three to seven years with a starting point of four years. An individual found to be very highly culpable will face a sentencing bracket of between 10-18 years, with a suggested starting point of 12 years.

Going forwards, whilst the proposed Guidelines may provide a degree of certainty as to the likely range of custodial sentences following a conviction for gross negligence manslaughter, the suggested brackets are very wide and will significantly increase the length of custodial sentences for individual defendants. This is perhaps evidence once more of the Sentencing Council’s and courts’ determination to escalate the priority ascribed to health and safety in the workplace and drive home the seriousness with which organisations ought to treat this aspect of their operations.

It is therefore important that there is broad participation in this consultation so any new guideline can achieve the Sentencing Council aims whilst maintaining proportionality and fairness.

The consultation can be assessed at www.sentencingcouncil.org.uk/consultations/manslaughter-consultation.

For more information, please contact: 

Bolton
Bill Dunkerley 
Associate 
T: 01204 678905
E: bdunkerley@keoghs.co.uk 

London
Tom Stevenson 
Solicitor
T: 0203 436 2342
E: tstevenson@keoghs.co.uk