The Sentencing Council has today published the Definitive Guideline for offences of manslaughter. Previously left to judicial discretion, in issuing this new document the Council has completed the suite of guidance available to Courts tasked with sentencing these serious crimes.
In preparing the Guideline, the Sentencing Council had the unenviable task of attempting to deal fairly, consistently and justly with all manslaughter offences, notwithstanding the hugely varying circumstances in which these offences can be committed. Distilling their efforts into a concise and user friendly format can have been no mean feat.
The Guideline is overdue, particularly given the well-publicised bolstering of the Courts’ powers when sentencing health and safety cases. Although gross negligence manslaughter cases are still relatively rare, they often accompany charges of corporate manslaughter and serious breaches under the Health and Safety at Work etc, Act 1974, both of which were covered in the February 2016 Guideline.
The consultation exercise that preceded today’s publication demonstrated this nexus and there was clearly much consideration of the workplace fatality as a source of gross negligence manslaughter cases. Indeed, key changes were made to the original draft Guideline to reflect these discussions
How does the Guideline work?
The Guideline bears the now familiar step by step approach we have become used to in health and safety cases. It calls on Judges to retain some flexibility when sentencing to achieve fairness; partly a way of reflecting upon the huge range of circumstances that might result in conviction.
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Step 1: |
Determine the offence category by examining the offender’s culpability and the harm caused. There are four classes of culpability:
· Level A: very high · Level B: high · Level C: medium · Level D: low
The Court will consider factors such as offending motivated by financial gain, “blatant disregard” for the high risk of death resulting from the negligent conduct and the offender’s role (if acting with others).
The Courts are directed to “avoid an overly mechanistic application of these factors”, a direct result of arguments raised at the consultation stage.
The Guideline quite properly notes that in these cases, “the harm caused will inevitably be of the utmost seriousness”.
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Step 2: |
Identify the starting point and category range:-
· Level A culpability: starting point 12 years (range 10 – 18 years) · Level B culpability: starting point 8 years (range 6 – 12 years) · Level C culpability: starting point 4 years (range 3 – 7 years) · Level D culpability: starting point 2 years (range 1 – 4 years)
The Court is then directed to a non-exhaustive list of factors that may aggravate or mitigate the offence. Matters increasing seriousness include previous (relevant) convictions, ignorance of warnings and attempts to conceal evidence. Amongst the mitigating factors are previous good character, remorse, attempts to assist the victim and self reporting/co-operation with the investigation.
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Step 3:
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Consider any factors warranting a reduction in sentence for assistance to the prosecution.
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Step 4: |
Reduction in sentence for guilty plea.
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Step 5:
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Dangerousness: is it appropriate to impose a life sentence or an extended sentence? |
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Step 6: |
Totality: when sentencing for more than one offence or where the offender is already serving a sentence, consider whether the penalty is just and appropriate to reflect the offending as a whole.
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Step 7:
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Consider whether to make a compensation order and/or a directors disqualification order. |
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Step 8:
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Give reasons for the decision |
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Step 9:
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Consider time spent on bail |
Can we expect longer sentences?
Almost certainly; yes.
In developing the Guideline, the Council looked at sentencing data for 2014 and found that the median sentence for manslaughter in that period was 4 years.
The Guideline sees the overall sentencing range for gross negligence manslaughter run from 1 year through to 18 years. However, that 2014 median sentence lies at the upper end of a low culpability sentence and is the starting point for a medium culpability offender under the new regime. If we consider the criminality of the negligence required to bring a case of this type in the first place, it seems very likely that the median sentence will be considerably higher in coming years.
The Guideline makes no mention of the potential for sentences to be suspended; a clear indicator of the approach the Council expects from the Crown Courts.
Toughening sentencing in gross negligence manslaughter cases is the final piece of the jigsaw when it comes to arming the judiciary with the support they need to impose heavier penalties on a more consistent basis where a death results from a workplace incident.
When will this apply?
The Guideline will apply to all cases sentenced after 1 November 2018, regardless of the date of offending.
The Guideline and consultation response are available here https://www.sentencingcouncil.org.uk/wp-content/uploads/Manslaughter_Definitive-Guideline_WEB.pdf and https://www.sentencingcouncil.org.uk/wp-content/uploads/Manslaughter-consultation-response_WEB.pdf
Rhian Greaves is a Director in the Regulatory team at Pannone Corporate LLP