What is happening?
The Sentencing Council, the independent body responsible for developing sentencing guidelines for courts in England and Wales to use when passing a sentence, published new sentencing guidelines for manslaughter offences on 31 July 2018. These will be coming into effect on 1 November 2018.
What are the guidelines?
The guidelines include a step-by-step guide that judges must follow in determining sentences for manslaughter. This includes gross negligence manslaughter, which is the most serious offence that can be committed by individuals for a health and safety breach.
What is gross negligence manslaughter?
Gross negligence manslaughter is committed by an individual whose gross breach of a duty of care causes or materially contributes to a death. For example, a director or manager is likely to be charged with manslaughter by gross negligence if prosecutors consider that they completely disregarded the safety of an employee and this specifically resulted in their death.
What are the key details of the new guidelines?
Under the guidelines, the severity of sentences is determined by an assessment of two factors – the harm caused to the victim and the culpability of the offender.
The level of harm is always going to be the highest possible in manslaughter cases as it involves a fatality. Therefore, the maximum sentence in law is life imprisonment.
However, sentences can range from suspended sentences to substantial life terms to reflect the hugely variable circumstances and levels of culpability in manslaughter cases.
There are four levels of culpability, which range from ‘low’ to ‘very high’, each of which leads to a different jail term starting point. For gross negligence manslaughter, the starting points are 2 years, 4 years, 8 years and 12 years’ custody for culpabilities of ‘low’, ‘medium’, ‘high, and ‘very high’ respectively.
The judge assesses a range of factors to determine culpability, such as prior knowledge of the breach, intent of the offender etc. The judge can also consider a range of factors to move the offender within a specified range around each starting point, such as seeking to wrongly blame others etc.
How does this affect me?
Following the introduction of the sentencing guidelines for health and safety offences and corporate manslaughter in February 2016, there has been a steady increase in fines and a reduced threshold for individuals to be jailed for up to two years.
The new guidelines mean that there is an increased risk of a lengthy custodial sentence for an individual convicted of manslaughter by gross negligence.
In a workplace fatality, an individual could be accused of negligent conduct if they allowed the risk of death to be present to cut costs or time. For example, if a risk assessment identified a risk of death and reasonably practicable control measures but these were not implemented, these factors point strongly towards ‘high’ culpability, as:
- The offender was aware that the breach could cause death;
- They allowed the breach to persist for any significant amount of time;
- They were motivated by financial gain or to avoid costs;
Most significantly, where more than one of these ‘high’ factors are present, the sentencing can easily fall into the ‘very high’ category with a sentencing range of 10 - 18 years’ custody.
Therefore, the actions or omissions of directors or managers in such circumstances can have a significant impact on their sentencing in a manslaughter case.
What should you do?
You need to ensure that your company is continuing to improve its health and safety management. Some key factors to ensure are:
- Directors need to ensure that they are actively driving the health and safety culture of their businesses from the top.
- Directors and managers need to be reminded of their responsibilities in relation to health and safety management and the results of failing to fulfil these responsibilities.
- Directors and Managers need to ensure that all work activities are appropriately risk assessed and planned.
How can we assist?
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