Gross Negligence Manslaughter: Increased Sentences

The Sentencing Council announced on 4 July 2017 that it is consulting on the sentencing of manslaughter offences, with a view to increasing custodial sentences.

There are no existing guidelines for most types of manslaughter.

This is yet another wake-up call to individuals and businesses that they must create and manage safe environments and carry out their work with due diligence.

What is manslaughter?

In criminal law this is divided up into two types: involuntary manslaughter and voluntary manslaughter. Within the voluntary manslaughter there are two categories: unlawful act manslaughter and manslaughter by gross negligence.

Manslaughter by gross negligence can happen in a variety of contexts: medical negligence, in care homes that fail to protect those that are being cared for or fatal accidents involving employees / third parties resulting from the safety failings of business or organisation.

This category of offence is proved by the Prosecution demonstrating all of the following:

• there has been a breach of the duty of care to the victim
• the breach caused the death
• the offender’s conduct was so bad that it amounts to a criminal act or omission.

The Sentencing Council has concluded that increased sentences are appropriate for some situations and cites the type scenarios where a greater penalty should be imposed than is the case now e.g. where an employer is engaged in prolonged disregard for employees’ safety and/ or there is a profit motive via cost-cutting. (According to Sentencing Council data 16 manslaughter by gross negligence sentences were passed in 2014. Prison sentences of between 9 months and 12 years were imposed and of these four were suspended sentences.)

The proposed guideline divides the culpability of any Defendant into one of four categories; it suggests a starting point and then a range of penalties upwards or downwards having regard to the circumstances of the case:

• the starting point prison sentence for Category A is 12 years custody. (Category range will be 10-18 years custody)
• the starting point prison sentence for Category B is eight years custody. (Category range will be 6-12 years custody)
• the starting point prison sentence for Category C is four years custody. (Category range will be 3-7 years custody)
• the starting point prison sentence for Category D is two years custody. (Category range will be 1-4 years custody)
• Prison sentences imposed for gross negligence manslaughter currently tend to sit within the Category C range.

Where there is a Guideline relating to sentencing defendants in a criminal case this must be followed by the Court unless it is satisfied it would be contrary to the interests of justice to do so. There are already guidelines for many other types of criminal matters: driving offences causing death, health and safety offences and environmental offences.

As with other guidelines relating to sentencing the Court must go through a step by step process to reach the outcome that takes all the circumstances into account. The Court must assess the degree of culpability and categorise it. It must also assess harm – in manslaughter cases the offence will always be regarded seriously of course given that a death has occurred.

The Manslaughter consultation closes on 10 October 2017. The draft Guideline will no doubt be adopted in its entirety if not almost entirely. Thereafter one can anticipate lengthier custodial sentences for the more serious categories of gross negligence manslaughter. The new proposals are also a further significant ratcheting up of penalties in Health & Safety cases generally – a new Guideline in February 2016 has led to a huge increase in fines for such matters not least for medium and large organisations. There has been a very marked rise in the imposition of fines in excess of £1M, in particular.

If you require information, advice, assistance or representation with regard to any investigation or proceedings faced by you or your business please contact our Regulatory team.