A view on the Sentencing Council’s Draft Guidelines for the Offence of Manslaughter in the Health & Safety Context
On 4 July 2017 the Sentencing Council launched a consultation into Draft Guidelines for the offence of manslaughter. The consultation concluded on 10 October. Manslaughter, almost more than any other offence on the criminal calendar can cover a broad range of factual backgrounds. This is in part reflected in the fact that the Draft Guideline covers four different categories of manslaughter including Gross Negligence (“GN”) Manslaughter, which is typically what regulatory lawyers are most likely to deal with, and what this short article will cover.
The Consultation Document covering the Draft Guidelines acknowledges that the Council faced “significant challenges” in drafting the guidelines for GN manslaughter. In part the challenge arises from the paucity of historic cases capable of analysis by the Council in drawing up the guidance. For the relevant period only 16 GN manslaughter cases were sentenced in England and Wales. Of those cases only 5 involved deaths at the workplace. Arguably, this makes it almost impossible to create a meaningful guideline to assist Judges in the future. Indeed the suggestion has been made during the course of the consultation that workplace deaths are best kept out of the Manslaughter Guidelines entirely, but, frankly, that suggestion is very unlikely to be adopted.
The major concern that I, and others, have with the current Draft concerns the level of sentences in the future. The members of the Council have stated that their intention is that the average GN case will fall within the Medium Culpability category of the Guideline. However, the strong likelihood is that due to the content of the draft, a normal GN manslaughter arising from a fatality at the workplace will, in fact, end up falling within the High Culpability range. The explanation for this can be found within the list of factors included in the guidance that indicate a finding of High Culpability. These include “the negligent conduct persisted over a long period of time (weeks or months)” and the “offender was clearly aware of the risk of death arising from the offender’s negligent conduct”.
The reality is that in a GN manslaughter case arising from a fatality in the workplace, both of these factors are likely to be almost conditions precedent to a decision to charge a suspect with manslaughter. If the conduct only did take place over a short period of time, or if the risk of death was not known or was not fully appreciated, then it is highly unlikely that instead of a charge of manslaughter, some other offence would be charged instead. Whilst these two features are extremely likely to exist in workplace scenarios, the same may not be true of other GN manslaughter situations that are currently covered under the same Guidelines; such as medical practitioners or carers neglecting patients. On behalf of the HSLA, in its response to the Consultation, I have suggested that those two features be explicitly excluded from the court’s consideration of the level of culpability to avoid the inevitable finding of at least High Culpability. I write “at least High Culpability” as the Draft Guideline indicates that where two features or more indicating High Culpability are present, the court can conflate them and assess the level of culpability as being Very High. It is possible that the two factors that I believe are present in most workplace GN manslaughter cases will, therefore, place an average such case in the Very High culpability category.
Under the current, non guideline, sentencing regime, the average sentence for GN manslaughter in the sort of cases that we are discussing, is between 4 to 5 years imprisonment. The consensus amongst regulatory lawyers is that the Draft Guidelines, if implemented in their current form will inevitably give rise to a significant increase in the level of sentences handed down in instances of GN manslaughter. The range of sentence indicated by the Guideline in High Culpability cases is 6 to 12 years imprisonment with a starting point of 8 years. For Very High Culpability cases the range is 10 to 18 years with a starting point of 12 years. Therefore, we are looking at a potential for sentences to potentially double, at the very least.
Therefore, our clients should be aware that the Courts are in the future likely to be sentencing those convicted of GN manslaughter in a way that has previously been reserved for what the general public, and lawyers, may consider to be the more traditional, very serious criminality rather than negligent behaviour, however gross.
Michael Hayton QC