On 4 July 2017 the Sentencing Council published its consultation on new sentencing guidelines for manslaughter offences. The definitive guideline will apply to individuals sentenced for gross negligence manslaughter offences linked to failure to discharge health and safety duties.

Through this consultation process, the Council is seeking views on:

1. The principal factors that make any of the offences included within the draft guideline more or less serious;

2. The additional factors that should influence the sentence;

3. The approach taken to structuring the draft guidelines;

4. The sentences that should be passed for manslaughter offences; and

5. Anything else that you think should be considered.

The consultation runs until 10 October 2017.

FORM

The draft guideline proposes the following nine-step approach.

Step 1: Determining the offence category

Step 2: Starting point and category range

Step 3: Consider any factors that indicate a reduction, for assistance to the prosecution

Step 4: Reduction for guilty pleas

Step 5: Dangerousness

Step 6: Totality principle

Step 7: Compensation and ancillary orders

Step 8: Reasons

Step 9: Consideration for time spent on bail

SUBSTANCE

Harm

The level of harm is constant and taken into account at Step 2 of the process.

Culpability

Very high culpability

Cases falling within this category will be characterised by the presence of extreme and/or a combination of the factors present for high culpability. They are likely to be extremely rare.

The starting point is 12 years’ custody within a range of 10-18 years.

High culpability

This could capture a significant proportion of offences committed in a workplace health and safety context. Determinative factors that one may expect could foreseeably form the premises of the case for the Prosecution include:

  • The negligent conduct was motivated by financial gain (or avoidance of costs);
  • The negligent conduct persisted over a long period of time (weeks or months);
  • The offender was in a dominant role if acting with others; or
  • The offender was clearly aware of the risk of death arising from the offender’s negligent conduct.

The starting point is eight years’ custody within a range of 6-12 years.

Medium culpability

Similar to the guideline for health and safety offences, cases of medium culpability are characterised as those where the culpability of the offender falls between high and lower. There is recognition that such cases may be characterised by factors falling within both high and low culpability, which balance each other out. The cautionary note to tribunals against applying an overly mechanistic approach reinforces this approach. This purports to be representative of the emerging approach taken in relation to health and safety offences, which will be welcomed by defence practitioners.

The starting point is four years’ custody within a range of 3-7 years.

Low culpability

Unlike the guideline for health and safety offences committed by organisations where the low culpability bracket is criticised as being unrealistic and redundant, the factors here are representative of the factual circumstances in which these cases could feasibly arise. They include:

  • The offender did not appreciate the risk of death arising from the negligent conduct;
  • Death was caused in the course of an unlawful act where there was no intention to cause any harm and no obvious risk of anything more than minor harm; and
  • The negligent conduct was a lapse in the offender’s otherwise satisfactory standard of care.

The starting point is two years’ custody within a range of 1-4 years.

IMPACT

The guideline is intended to increase the severity of sentences imposed for gross negligence manslaughter offences due to failing to discharge health and safety duties. The press release states:

“…in most areas, there are unlikely to be changes to sentence levels, but the Council expects that in some gross negligence cases, sentences will increase. An example could be where a death was caused by an employer’s long-standing and serious disregard for the safety of employees which was motivated by cost-cutting. Current sentencing practice in these sorts of cases is lower in the context of overall sentence levels for manslaughter than for other types.”

According to an analysis of sentencing transcripts 16 offenders were sentenced for manslaughter by gross negligence in 2014. All were sentenced to determinate custodial terms ranging from nine months to 12 years, four of which were suspended. The median sentence length was four years. The resource assessment accompanying the consultation document reports that only 3 offenders were sentenced for gross negligence manslaughter offences due to failings in health and safety duties in 2014.

Recent examples of sentences imposed for gross negligence manslaughter include:

  • Andrew Winterton, director and site manager of a construction company sentenced to four years imprisonment after trial in July 2017 for the death of a ground worker when an unshored drainage trench collapsed.
  • Construction company director Allen Thomson sentenced to six years in April 2016 for the death of a worker who fell through a skylight sustaining fatal injury. Another two workers had earlier fallen through a skylight, one of which suffered serious multiple fractures.
  • Care home director Yousaf Khan sentenced to three years and two months imprisonment in February 2016 for the death of a patient from pneumonia attributable to neglect.

It is arguable that all three of the examples referred to above would fall within the high culpability bracket where the starting point for sentence is eight years’ imprisonment and could be as high as 12 years.