The trend of increasing penalties for health and safety offences continues with new manslaughter sentencing guidelines, says expert

The Sentencing Council's consultation (80-page / 1.02MB PDF) contains proposals for how offenders convicted of manslaughter should be sentenced in England and Wales. The guidelines, when finalised, will sit alongside existing guidelines on corporate manslaughter which were published last year.

The new sentencing guidelines are aimed at promoting "consistency in sentencing and transparency in terms of how sentencing decisions are reached", according to the Sentencing Council's draft.

What is the scope of the new draft guidelines?

The draft guidelines cover 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.  It 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.

In line with other recent guidelines, the draft guidelines require manslaughter offences to be classified in one of the four offence categories. The Sentencing Council has said this should be done by assessing culpability by reference to a number of different factors. 

This then indicates a starting point and category range for sentencing, to which 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 potential impact of the guidelines

Whilst the Sentencing Council does not expect its draft guidelines to cause a substantial difference to penalties imposed in the majority of cases, that is not likely to be so for gross negligence manslaughter where they accept that in some cases sentences will increase.

In this respect it cited the example of "where a death was caused by an employer’s long-standing and serious disregard for the safety of employees which was motivated by cost-cutting… [where] current sentencing practice in these sorts of cases is lower in the context of overall sentence levels for manslaughter than for other types".

With potential sentences for gross negligence manslaughter ranging from anything between one and 18 years imprisonment, it is clear that for workplace fatalities sentences could indeed be substantially increased.

Where the Sentencing Council's proposals could be improved

Of the offences covered in the draft guidelines, gross negligence manslaughter in particular covers an extremely wide range of scenarios. It is difficult to foresee how these can be adequately catered for in one set of principles.

As the Sentencing Council state, "developing a sentencing guideline for manslaughter by gross negligence has been particularly challenging because the offence occurs relatively rarely but in a very wide range of circumstances".

Although courts are urged to avoid an "overly mechanistic application" of the factors pointing to culpability, doubts will arise over  whether  previous flexibility in sentencing for gross negligence manslaughter following a workplace health and safety breach will be lost. 

The matters to be taken into account in considering such culpability are often extremely complex and are seldom, if ever, the same as in the case of, for example, a domestic death. Indeed few of the factors listed to be considered in determining culpability, nor in mitigation or aggravation, seem relevant in the context of a workplace fatality.

As a result, including such scenarios in the draft guidelines may well produce more rather than less uncertainty – the draft guideline’s aim may well have been better served by including workplace fatalities as part of the overall guidelines for sentencing for health and safety offences produced last year.

Stiffer penalties trend continues

What is clear, though, is that the sentencing guidelines are 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 hefty fines be imposed on the most serious offenders, but that the individuals ultimately held responsible should also expect lengthy periods behind bars.

Kevin Bridges and Sean Elson are experts in health and safety regulation at Pinsent Masons, the law firm behind Out-Law.com.