Newsletters Criminal Regulatory 7th Dec 2018

New Sentencing Guidelines for Manslaughter Offences Now in Force

On 1st November 2018, the Sentencing Council’s Definitive Guideline for Manslaughter offences came into force. Its aim is to ensure comprehensive guidance where previously there has been very limited. Until now, in the Health and Safety context, there has only been guidance for corporate manslaughter.

This guideline will apply to all offenders aged 18 or over who are sentenced on or after 1 November 2018 regardless of the date of the offence. The guideline reflects an attempt to bring consistency and transparency to sentencing for all forms of manslaughter.

Of particular interest to those in the health and safety world will be the guidance on gross negligence manslaughter. In brief, gross negligence manslaughter is a common law offence which consists of the following: (1) The defendant owed a duty of care to the deceased (2) There has been a breach of this duty of care (3) The breach is gross and (4) is a substantial cause of the death.

There are nine steps to sentencing. Step one determines the offence category and in particular the culpability that may attach to the offender’s conduct, that is, very high, high, medium and lower. Step two identifies the starting point and category range. Where culpability is ‘very high’, the starting point is 12 years with a range of 10 to 18 years’ custody. Where culpability is ‘high’, the starting point is 8 years with a range of 6 to 12 years’ custody. Where culpability is ‘medium’, the starting point is 4 years with a range of 3 to 7 years’ custody. Where culpability is ‘lower’, the starting point is 2 years with a range of 1 to 4 years’ custody. The statutory aggravating and mitigating factors apply. Other key steps include, step four; the reduction for guilty pleas and step six; the applicability of the totality principle.

The Sentencing Council has said that: “Overall, the guideline is unlikely to change sentence levels but it is expected that in some gross negligence cases sentences will increase”. The illustrative example given is notably a health and safety specific situation where “an employer’s long-standing and serious disregard for the safety of employees, motivated by cost-cutting, has led to someone being killed. Current sentencing practice in these sorts of cases is lower in the context of overall sentence levels for manslaughter than for other type”. Health and Safety practitioners will clearly have to carefully consider this new guidance and watch this space to see what the actual effect will be. If the recent trend in increasing fines for Health and Safety offences are anything to go by one would expect an increase in sentencing in the health and safety context. That being said, in assessing the impact it is right to note that only 10 offenders were sentenced for this offence in 2016.

Alexandra Tampakopoulos


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