New manslaughter sentencing guidelines

New guidelines were recently published by the Sentencing Council that relate to manslaughter sentencing.

Manslaughter sentencing

Manslaughter can be committed in a wide variety of circumstances and the guidelines are split into several sections as follows:-

1. Unlawful act manslaughter
2. Gross negligence manslaughter
3. Manslaughter by reason of loss of control.
4. Manslaughter by reason of diminished responsibility.

Although the guidelines are not themselves legislation, courts are obliged to follow them by virtue of s125(1) of the Coroners and Justice Act 2009, unless the court is satisfied it would be contrary to the interests of justice to do so. The reality is that for the vast majority of cases the court follow them.

Gross negligence manslaughter

Manslaughter by gross negligence occurs when the offender is in breach of a duty of care towards the victim, the breach causes the death of the victim and, having regard to the risk involved, the offender’s conduct was so bad as to amount to a criminal act or omission. Deaths in the workplace due to negligent behaviour of a person or company can lead to such prosecutions.

The sentences now fall into four potential brackets, depending on the level of culpability attributed to the offender.

• The highest category A has a sentence range of 11-24 years.
• Category B has a sentence range of 6-12 years.
• Category C has a range of 3-7 years.
• The lowest category D has a range of 1-4 years.

Sentences could potentially be suspended if they fall into the lowest bracket and the judge feels that a sentence of no more than two years would be appropriate.

Where the negligent conduct was motivated by financial gain (or by avoiding cost) then this is deemed to be at least high culpability (bracket B) and extreme examples of this could end up in category A.

Effect on manslaughter sentences

The effect of the guidelines is that it should be possible to more accurately predict the length of sentence that someone could potentially receive when being prosecuted for such offences.

The consultation paper provided some examples of sentences for different situations as follows:-

• Offender A, aged 57, was an experienced builder who was sub contracted by a larger company to carry out ground work on the excavation of a basement to a residential property. He employed two young men with no previous building experience to dig out the basement under his direction. He supplied the workers with safety boots and hard hats, but made no other provision for their safety on site. The sides of the hole they were digging should have been shored up but he told them that it was not necessary and would slow the work down, thereby costing money. After three weeks of working on the site, one side of the hole collapsed killing one of the men instantly and narrowly missing the other. He pleaded guilty. He had no previous convictions and was remorseful. He was the main carer for his disabled wife.
• Offender B, aged 42, was the site manager for the larger company. He had carried out a risk assessment for the work and drawn up a method statement of the necessary safeguards to be followed. He visited the site on nine occasions in the three weeks before the incident but failed to take any steps to ensure that the method statement was being adhered to. He was convicted after a trial. He had no previous convictions and a good health and safety record over 20 years.
• Applying the guideline to offender A, the high culpability factors of ‘the negligent conduct was motivated by financial gain (or avoidance of cost)’ and ‘the negligent conduct persisted over a long period of time (weeks or months)’ apply. It might also be felt that because of his experience the factor ‘the offender was clearly aware of the risk of death arising from the offender’s negligent conduct’ would apply. This would lead to a starting point of 8  years .The aggravating factor ‘other(s) put at risk’ would apply. Mitigating factors include no previous convictions, remorse and ‘sole or primary carer for dependent relatives’.
• Applying the guideline to offender B, the high culpability factor of ‘the negligent conduct persisted over a long period of time (weeks or months)’ applies. It might also be felt that because of his experience the factor of ‘The offender was clearly aware of the risk of death arising from the offender’s negligent conduct’ would apply. The low culpability factor of ‘the negligent conduct was a lapse in the offender’s otherwise satisfactory standard of care’ could be relevant in the light of his previous good record. Balancing the factors could lead to a starting point of 5 years. The aggravating factor of ‘other(s) put at risk’ and the mitigating factor of no previous convictions would apply.

Healthy and safety measures

Companies and responsible individuals working in high risk professions such as construction need to be aware of these guidelines. They need to ensure that they operate their business with robust health and safety measures in place. If, as the examples above, a court deems that they have put people at risk through any kind of cost cutting measure and someone is killed as a result then lengthy custodial sentences could follow for anyone deemed to bear some responsibility.

Toby Wilbraham – criminal and regulatory solicitor

Toby Wilbraham is a criminal and regulatory lawyer with significant specialist expertise in cases involving health and safety issues.

If you would like to discuss your case or are concerned in relation to a potential investigation contact Toby Wilbraham by telephone on 0161 834 1515, by email to tobywilbraham@olliers.com  or click here to send us a message.