On the 4 July 2017, the Sentencing Council announced a consultation on its proposals for how offenders convicted of manslaughter should be sentenced in England and Wales.

There are no other existing guidelines for any other forms of manslaughter except Corporate Manslaughter which is covered by the Sentencing Guideline covering Corporate Manslaughter, Health and Safety and Food Safety and Hygiene offences that came into force in February last year.

The proposed guidelines are based on an analysis of current sentencing practice, and 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 in a health and safety case 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.

Gross negligence manslaughter, almost more than any other type of offending, covers an extraordinarily wide set of scenarios. To try and cater adequately for that in a single (and very brief) Sentencing Guideline may be a very difficult exercise. The formulaic approach set out in the draft might serve to significantly restrict the traditional flexibility enjoyed by Judges to deal with each case, especially health and safety cases, on its unique facts.

It might be more sensible for deaths arising out of or in connection with work related activities to be separated out of this draft Guideline and dealt with separately, to sit with and dovetail the existing and recent Sentencing Guideline covering Corporate Manslaughter, Health and Safety and Food Safety and Hygiene offences. In that way the various factors addressing culpability, aggravation and mitigation might be more readily tailored to this type of offending. As set out in the current draft the applicability of the various factors to work-related deaths appears somewhat limited.

The draft Guideline certainly appears, looked at in the context of its potential impact on gross negligence manslaughter prosecutions in the health and safety sphere, to be a continuation of the trend of the last decade or so towards trying to significantly increase the consequences faced by both businesses and employees (of whatever seniority) of getting compliance wrong in this crucially important area of public protection.

In recent years there has been an increase in the number of individuals prosecuted for health and safety offences and gross negligence manslaughter. The reported cases also appear to show a noticeable increase over the last few years of individuals receiving custodial sentences for such offending and an increase in the length of such sentences. This Guideline, read in conjunction with the Guideline for individuals committing health and safety offences, suggests that those periods of custody will, on average, continue to get longer.

This can be found on the following link: https://www.sentencingcouncil.org.uk/consultations/manslaughter-consultation/