Sentencing guidelines update – manslaughter
The Sentencing Council is an independent body that defines and sets the guidelines that courts in England and Wales must follow when passing a sentence in specific criminal cases. There are currently 30 definitive sentencing guidelines in force for specific offences, the latest of which is the Manslaughter Definitive Guideline.
We were involved in the Sentencing Council’s consultation process on those guidelines, and on 31 July we saw its publication which will apply to all offenders sentenced on or after 1 November 2018 irrespective of when the offence was committed.
Manslaughter Definitive Guideline
Our response to the consultation asserted that it was inappropriate to split gross negligence manslaughter offending, the type of manslaughter which can be relevant to workplace fatalities, into four categories of culpability. Instead we suggested that the Sentencing Council should adopt a two tier approach similar to that used for sentencing corporate manslaughter cases. This would allow the courts to distinguish between reckless conduct and an omission with significant consequences.
It was our concern that where such serious offending had occurred it would be deemed inappropriate to categorise them as ‘low culpability’, and, therefore, this category would never be used. The courts would inevitably look to the higher categories with higher penalties. Disappointingly the guideline has maintained its four tier hierarchy of ‘very high’, ‘high’, ‘medium’ and ‘low’ culpability.
Where the Sentencing Council did agree with our response, was in relation to one aspect that could have given rise to ‘high culpability’, which is circumstances where the conduct persisted over a long period of time. We suggested that it is inappropriate in the workplace context to use this as an assessment of culpability as this could lead to offenders, who genuinely believed they were carrying out their role diligently, being categorised as highly culpable. Offences of this nature are subject to a starting point of eight years’ custody before any mitigating factors are considered. The Sentencing Council agreed and it has been removed.
Significant changes have also been made to the draft list of aggravating and mitigating features that will be considered when assessing where within the range of penalties a sentencing judge should place the offender.
The aggravating features have changed as follows:
- Removed - ’Death occurring in the context of dishonesty or personal gain’ - dishonesty is not a feature of the offence of gross negligence manslaughter and financial motivation is now considered a factor indicating higher culpability
- Amended - ’Blame being wrongly placed on others’ has been substituted for ‘investigation hindered and/or others have suffered as a result of being falsely blamed by the offender wrongly placed on others’.
The following mitigating features have been added:
- Attempts to assist the victim.
- Self-reporting and/or co-operation with the investigation.
- The offender lacked the necessary expertise, equipment, support or training which contributed to the negligent conduct.
- For reasons beyond the offender’s control, the offender was subject to stress or pressure which related to and contributed to the negligent conduct.
- For reasons beyond the offender’s control, the negligent conduct occurred in circumstances where there was reduced scope for exercising usual care and competence.
- The negligent conduct was compounded by the actions or omission of others beyond the defendant’s control.
One clear aspect that has not altered from the draft guideline is the sentencing starting point and category range. A starting point of eight years’ custody and a category range of 6-12 years’ custody for ‘high culpability’ offenders and a starting point of 12 years’ custody and a category range of 10-18 years’ custody for ‘very high culpability’ offenders remain.
To date the Sentencing Council has produced a Definitive Guideline for most high volume criminal cases. However, there are a number of types of criminal offences that do not have an applicable sentencing guideline. In the regulatory context this includes data protection, fire regulation and planning offences.
On 19 June 2018 the Sentencing Council opened a consultation into a “catch all” General Guideline that will provide a guideline for the sentencing of offences not covered by an offence specific guideline.
The consultation closes on 11 September 2018 and it is anticipated that like all other Definitive Guidelines they will apply retrospectively to the sentencing of offences committed prior to the implementation of General Guideline.
The reality of how many cases the Crown Prosecution Service will be prepared to pitch at ’low’ or ’medium’ culpability remains to be seen and it may be that the categories of 'high' and ‘very high’ will be more attractive.