Manslaughter Sentencing Guidelines

On 31 July 2018, the Sentencing Council published new definitive guidelines on the sentencing of defendants convicted of all manslaughter offences including Gross Negligence Manslaughter (GNM), the most serious offence that an individual can commit following breaches of health and safety. The new guidelines, which are set to come into force on 1 November 2018, produce a step-by-step guide for Judges to follow when determining appropriate sentences in GNM cases (unless adherence to the Guidelines would run contrary to the interests of justice)[1].

The publication represents a significant development in the realm of health and safety, as it is the first time that a comprehensive set of guidelines have been drafted for all manslaughter offences. Up until now, there has only been such comprehensive guidance issued in respect of corporate manslaughter and manslaughter by reason of provocation. Moreover, the 'Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences' guidelines introduced by the Sentencing Council in February 2016 omitted any reference to GNM.

The hope amongst members of the Sentencing Council therefore is that the publication will bridge this gap and provide greater clarity to offenders, Lawyers and Judges alike.

Gross Negligence Manslaughter

GNM is committed when an offender's breach of a duty of care towards a victim causes the victim's death, and is so serious that the offender's conduct amounts to a criminal act or omission.

As highlighted by Lord Justice Holroyde (of the Sentencing Council) “manslaughter offences vary hugely – some cases are not far from being an accident, while others may be just short of murder." This, combined with the lack of guidance and scarcity of GNM cases (meaning that they are rarely presented before Judges), has resulted in a huge variation in sentencing practices amongst the Judiciary.

Despite the seriousness of the offence resulting in a maximum tariff of life imprisonment, the current sentencing of GNM cases has been far lower than those for other types of manslaughter offences. Of the 10 offenders sentenced for GNM in 2016, 20% received suspended sentences and all ranged between 2-6 years as the maximum custodial sentence received.

New Guidelines

Under the new Guidelines, Judges are provided with a spectrum of 'culpability', with consequent custodial sentences ranging between 1 to 18 years – it is for the Judge to determine where on that spectrum of culpability the particular GNM offence lies, based upon various factors that the offence demonstrates (such as ignorance to previous warnings). Once that 'culpability category' is established, the Judge is then provided with a 'starting point' for sentencing, and a sentencing 'range' in which they can move up or down.

When looking at the guidelines, it is important to note that the guidelines apply to all GNM cases, not just those related to breaches of health and safety, and therefore whilst there are features that affect culpability which lend themselves to health and safety cases, many are likely to be irrelevant or not applicable to the specific nature of the offence.

At one end of the spectrum lies 'very high culpability' offences which is demonstrated by the extreme character of one or more high culpability factors or a combination of high culpability factors and the guidelines go onto list a number of factors for consideration within high culpability – in health and safety cases, typical factors that are likely to be relevant are financial gain or cost-savings as a motivation for the breach and blatant disregard of there being a very high risk of death. Very high culpability cases have a starting point of 12 years' custodial sentence, with a sentencing range of 10-18 years. At the other end of the spectrum, 'lower culpability' offences have a starting point of 2 years in custody, with a 1-4 year sentencing range.

In assessment of the offence, the Guidelines therefore take into account the vast variation in both GNM cases and the severity of factors that contribute towards a victim's death. There has been considerable disparity in the sentences that have been handed down in GNM cases, given the wide Judicial discretion that has been afforded to Judges, therefore the aim is for Guidelines is to result in more proportionate sentences being passed that "properly reflect the culpability of the offender and the unique facts of each case”[2].

Anticipated impact of the New Guidelines

It is hoped that the Guidelines will assist in promoting consistency within sentencing practices, therefore serving justice more appropriately. The Guidelines should also assist in the transparency of the judicial process, by clearly demonstrating to offenders, families of victims and the wider public how all sentencing decisions are reached.

Considering the sentences handed down in 2016, the highest sentence was 6 years, which would fall within the middle of medium culpability or the bottom end of high culpability. With Judges now afforded the new guidance and given the opportunity to utilise the full sentencing spectrum, we anticipate that we will see a considerable increase in sentences in these types of cases.

Where the CPS will decide to pitch GNM cases along the culpability spectrum remains to be seen, but the severity of the potential custodial sanctions is enough to remind not only directors, but managers and supervisors, about the importance of ensuring that robust health and safety policies and procedures are in place, are implemented and are in fact adhered to. Now more than ever, directors need to remain alert to the types of behaviors to avoid and promote a positive health and safety culture within their business, through a planned system of policy implementation, training, supervision and audit.

[1] Coroners and Justice Act 2009 section 125(1)

[2] Lord Justice Holroyde