Gross negligence manslaughter: custodial sentences under review
In July 2017, the Sentencing Council announced a consultation on its proposals for a new Sentencing Guideline for offenders convicted of manslaughter. The Sentencing Council has prepared a draft Sentencing Guideline covering several different types of manslaughter, one of which, gross negligence manslaughter, is relevant to workplace fatalities.
Draft Manslaughter Guideline
For those acquainted with the Sentencing Council’s Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences which came into force in February 2016, the draft Manslaughter Guideline will look quite familiar. It has the same layout and format and follows the same principle that sentence should be based on an assessment of culpability and harm. However, the nature of the offence of gross negligence manslaughter is such that the ‘harm’ caused will, according to the draft Manslaughter Guideline “inevitably be of the utmost seriousness” and therefore no real assessment of that factor is required.
Assessment of culpability
The main factor for consideration under the draft Manslaughter Guideline therefore is an assessment of the culpability of the individual. Under the draft Manslaughter Guideline, ‘culpability’ is divided into four categories: very high, high, medium and low. One thing that jumps out immediately here is the juxtaposition of an offence which requires such serious offending for a conviction to be successful, with its possible categorisation post-conviction as a ‘low culpability’ offence.
Manslaughter cases in a workplace context are extremely rare because of the high threshold required for the offence. This is reflected by the fact that only around five in 100 of the fatal cases we have ongoing at any one time will be cases that will result in gross negligence manslaughter proceedings.
When one looks at the existing case law, it is evident that there is a very high threshold for gross negligence in the workplace context. For example, in R v Misra , Langley J directed the jury that “mistakes, even very serious mistakes, errors of judgment, even very serious errors of judgment, are nowhere near enough for a crime as serious as manslaughter to be committed”. Langley J continued that the conduct must be “truly exceptionally bad which showed such an indifference to an obviously serious risk to the life of the deceased…to amount to the very serious crime of manslaughter”. In our view this cannot, in anyone’s assessment, be categorised as ‘low culpability’.
The concern we have, therefore, is that the Crown Prosecution Service may (as indeed we have seen the HSE do time after time under the Health and Safety Guideline) simply allege ‘high’ or ‘very high’ culpability regardless of the circumstances of the offending. With ‘harm’ always being categorised at the highest level for manslaughter, this would not leave much if any room for defence lawyers to encourage a more nuanced, case-specific approach by the sentencing judge.
Further, it would be relatively easy for the Crown Prosecution Service to justify alleging high culpability in many workplace cases given one of the suggested factors in the draft Manslaughter Guideline indicating high culpability is where the negligent conduct persists over “weeks or months”. In the context of, for example, lengthy project works, situations where an individual does not appreciate that he is committing the offence and the very common scenario of safety management omissions remaining unrecognised for long periods; this is in our view too low a threshold.
High culpability under the draft Manslaughter Guideline has a custodial sentence starting point of eight years and a category range of six to 12 years’ custody; ‘very high’ a starting point of 12 years’ custody and a range of 10-18 years’ custody. This is at the extreme higher end of sentences currently imposed for this type of offence in a workplace context.
The draft Manslaughter Guideline, if adopted in its current form, will therefore have a significant impact on those being investigated and prosecuted for this type of offence, an offence which does not require any deliberate act.
Kennedys submitted a written response to the consultation on the draft Manslaughter Guideline, raising these and more general concerns before the consultation closed in October 2017. It remains to be seen whether our concerns, and the concerns of other legal practitioners and commentators, will be reflected in the final version which is likely to be published and come into force in the coming months.