Guideline for manslaughter offences issued by Sentencing Council

The new Definitive Guideline for manslaughter offences (30-page / 184KB PDF) will apply to people aged 18 and older who are sentenced on or after 1 November 2018 in England and Wales, regardless of the date of the offence. The Sentencing Council's aim in producing the Definitive Guideline is to promote "consistency in sentencing and transparency in terms of how sentencing decisions are reached".

The Sentencing Council has undoubtedly sought to address some of the concerns raised by respondents to last year's consultation on draft guidelines. However, the fact remains that of the offences covered by the Definitive Guideline, gross negligence manslaughter in particular incorporates an extremely wide range of scenarios, which are not readily catered for in one set of principles. As a result, including such scenarios in the Definitive Guideline may well produce more rather than less uncertainty.

What is clear, though, is that the Definitive Guideline is set to contribute to the growing trend of stronger penalties for health and safety offences in the workplace. Whilst not yet commonplace, the incidence of custodial sentences in such cases is on the increase and it now looks likely that not only will heft fines be imposed on the most serious offenders, but that the individuals ultimately held responsible should also expect lengthy periods behind bars.

The Definitive Guideline covers four types of manslaughter:

• unlawful act manslaughter: this includes deaths that result from assaults where there was no intention to kill or cause very serious harm, and unintended deaths that result from other crimes, such as arson or robbery;
• gross negligence manslaughter: this occurs when the offender is in breach of a duty of care towards the victim which causes the death of the victim and amounts to a criminal act or omission. This is wide-ranging and can include deaths in a domestic setting where parents or carers fail to protect the victim from an obvious danger, as well as workplace fatalities following a health and safety breach;
• manslaughter by reason of loss of control: this arises if the actions of an offender, who would otherwise be guilty of murder, resulted from a loss of self control, for example arising from a fear of serious violence;
• manslaughter by reason of diminished responsibility: this covers the situation where someone otherwise guilty of murder was suffering from a recognised mental condition which affected their responsibility at the time of the offence.

Of these, gross negligence manslaughter is most relevant in a workplace context and we will concentrate on this here.

The Definitive Guideline in practice

According to the Sentencing Council, the Definitive Guideline "ensures comprehensive guidance where previously it was very limited" and "will help ensure sentencing that properly reflects the culpability of the offender and the unique facts of each case".

The Definitive Guideline follows a consultation published last year and, in line with other recent sentencing guidelines, requires gross negligence manslaughter offences to be classified in one of four offence categories. This should be done by reference to a number of different factors. Whilst other recent guidelines have required an assessment of the risk of harm too, in manslaughter cases "harm caused will inevitably be of the utmost seriousness".

For gross negligence manslaughter cases, the Definitive Guideline contains a list of culpability indicators for use when assessing culpability. For example, "very high" culpability may be identified by:

• the extreme character of one or more of the "high" culpability factors; and/or
• a combination of those factors.

The high culpability factors include that:

• the negligent conduct was motivated by financial gain (or the avoidance of costs);
• the offender was in a "leading role" if acting with others (this has been changed from "dominant role" in the consultation, "to make it clear that the role is only significant if it relates to the offending");
• the offender showed a blatant disregard for a very high risk of death resulting from the negligent conduct.

Some changes have clearly been made from the draft guideline issued with last year's consultation, including omission of the high culpability factor that the negligent conduct persisted over a long period of time. However, concern remains that for a workplace fatality, in many cases, a combination of these factors may well still be present, pushing those cases into the "high" or "very high" category of culpability rather than the anticipated medium culpability. The recommendation that courts avoid an "overly mechanistic application" of the factors pointing to culpability, "particularly in cases to which they do not readily apply", does little to assuage this.

Given the level of sentencing and the jump between culpability levels, this can have very serious and possibly unintended consequences, with doubts remaining over whether previous flexibility in sentencing for gross negligence manslaughter following a workplace health and safety breach will be lost.

In particular, the retention of the requirement to consider financial gain (or the avoidance of cost) at this stage is disappointing. It seems inappropriate, lacks clarity, involves a subjective assessment, is arguably inconsistent with the underlying law and should have no impact here.

The offence category indicates a starting point and range for sentencing. For example, for offences indicating a very high degree of culpability, sentences of between 10 and 18 years may be imposed, with a starting point of 12 years. To this, any aggravating or mitigating factors are applied. Reductions may then be given, for example for assistance given or a guilty plea. Reasons for the sentence imposed must be given.

The Definitive Guideline contains a non-exhaustive list of aggravating and mitigating factors. In the draft guideline, the aggravating factors included that the "blame [was] wrongly placed on other(s)". This has been changed to "[i]nvestigation has been hindered and/or other(s) have suffered as a result of being falsely blamed by the offender" in an attempt to address concerns raised by stakeholders that the aggravating factor could be applied to any offender who runs a defence based on others being responsible for the fatal incident, particularly in gross negligence manslaughter convictions following a trial. Whether this change will meet those concerns will depend on judicial interpretation but, on a strict construction of the aggravating factors, an offender whose defence that others are responsible fails will have "falsely" placed blame on others.

The Definitive Guideline states that "appropriate weight" is to be given to any aggravating or mitigating factors, and of course discourages an overly mechanistic application, so it may be that an offender should be able to rely on his/her legal representative to make the position clear in the particular circumstances. Whether this achieves the aims of transparency and consistency remains in doubt.

Consideration must also be given as to whether compensation or another ancillary order is appropriate. Added to this following the consultation is a requirement to consider whether the individual should be disqualified from acting as a director.

Kevin Bridges is a health and safety law expert at Pinsent Masons, the law firm behind Out-Law.com.