While health and safety might once have been the realm of the Health and Safety Manager or Advisor; there have been many reasons over recent years why it has become of increasing importance to everyone within a business. The most recent is that on 31 July, the Sentencing Council published its long awaited Definitive Guideline on manslaughter offences including gross negligence manslaughter, the most serious charge an individual can face following a fatal workplace incident. The Guideline will apply to offenders sentenced on or after 1 November 2018.
Gross negligence manslaughter cases should be reserved for those that are “truly exceptionally bad”. They occur where there has been a “gross” breach of duty, which can be a single or number of acts or omissions by an individual which have caused a death. It is also possible for a number of individuals to be charged, for example, after a fatal incident at Hannover Square in London in 2012, three individuals were charged with gross negligence manslaughter and one was convicted following a two month trial at The Old Bailey. He was sentenced to twelve months imprisonment. Under the new Guideline, that sentence would undoubtedly be higher.
The new Guideline follows a similar step-by-step approach taken in the Guideline for Corporate Manslaughter and Health and Safety Offences published in February 2016. This has also had the effect of significantly increasing sentences, both fines payable by organisations and penalties for individuals of fines and imprisonment.
The new Manslaughter Guideline sets out a sentencing range of 1-18 years custody determined following an assessment by the court of the culpability of the offender, the application of aggravating and mitigating features and a number of other steps set out in the Guideline. No assessment of harm is necessary by the courts as the risk and level of harm is always the most serious having resulted in a death.
The Guideline sets a starting point for culpability level A “very high” offences of 12 years custody with a range of 10-18 years imprisonment. At the other end, a culpability level D “lower culpability” offence, starts at 2 years with a range of 1-4 years. So what will the courts look at to determine the level of culpability?
Our experience in workplace cases is that regulators nearly always suggest to the court that an offence is “high culpability”. In the case of gross negligence manslaughter the Guideline sets out that this includes cases where: “..the offence was particularly serious because the offender showed a blatant disregard for a very high risk of death resulting from the negligent conduct”; “The negligent conduct was motivated by financial gain (or avoidance of cost)”; and “The offender was in a leading role if acting with others in the offending”.
We can see how it could be argued in workplace cases that a measure was not put in place, or a step not taken, resulted in financial gain or avoidance of cost; the argument will be whether this was a motivating factor. We can also see there being argument around whether it is fair to characterise a manager or supervisor as being “in a leading role” and therefore, an offence they commit being one which is high culpability, whereas others could be looked upon differently. The reality in workplace fatality cases is that usually there are a number of people with overlapping and interwoven responsibilities and it is not their role, rather their conduct, which will determine how culpable they are for a death.
Helpfully, there are a number of other factors set out in the Guideline indicating lower culpability that may frequently apply in health and safety cases, including “The negligent conduct was a lapse in the offender’s otherwise satisfactory standard of care”, and “The offender was in a lesser or subordinate role if acting with others in the offending”.
The Guideline also sets out aggravating features for the courts to consider, including the “Offender ignored previous warnings” and “Other(s) [were] put at risk of harm by the offending”, which will result in a higher penalty. Mitigating features include: “No previous convictions or no relevant/recent convictions”; “Remorse”; “Self-reporting and/or co-operation with the investigation” and the offender is of “Good character and/or exemplary conduct”.
Nevertheless, the Guideline will undoubtedly have the effect of increasing penalties. This reflects a growing trend in the courts to treat workplace incidents, and those who are responsible for them whether an organisation or an individual, with the appropriate level of seriousness. This is what led to the step change in the Guideline on Corporate Manslaughter and Health and Safety Offences, which sets levels of fines into the millions of pounds and terms of imprisonment for individuals of up to two years. The effect of that Guideline is that levels of penalties are steadily increasing as the courts become more confident in their application.
In our view, it is also undoubtedly the case that the Sentencing Council, will have considered the new Guideline against the backdrop of a number of very serious incidents including the Hillsborough disaster where the police has brought gross negligence manslaughter charges against a number of individuals. The Sentencing Council may have been influenced to establish a structure, which will result in penalties of a level the public would consider appropriate for events of the most serious nature and consequence.
One question is whether the new Guideline will have the effect of deterring offending. We think that this is unlikely as whether gross negligence manslaughter has been committed is not usually clear cut, with juries having to carefully consider a number of factors (and those which have come to light after an incident) to determine guilt or innocence, which is not an assessment an individual is likely to make when acting in the course of their work.
The Guideline can be accessed here