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New Definitive Guideline on Manslaughter Offences

New Definitive Guideline on Manslaughter Offences

  • United Kingdom
  • Health and safety

01-11-2018

From 1 November, manslaughter offences committed by individuals will be sentenced in accordance with the Sentencing Council’s Definitive Guideline for Manslaughter Offences.

Like the Sentencing Guideline for Corporate Manslaughter and Health and Safety Offences in February 2016, this introduces the potential for higher penalties for gross negligence manslaughter offences, which occur in the context of a work activity. The Guideline sets out a range of 1 to 18 years imprisonment, so it is no surprise that once again health and safety is at the top of the agenda.

When a fatal incident occurs as a result of a work activity, should individuals be worried and if convicted, how are sentences to be determined?

Gross negligence manslaughter is the most serious charge an individual can face following a fatal workplace incident and charges should be reserved for only the most serious cases. The offence requires a “gross” breach of the duty of care owed to the deceased which causes (or significantly contributes to) the death. What constitutes a “gross” breach is a matter for the jury having heard all of the evidence, which in the case of R v Misra (2004) was said to be:

“Mistakes, even very serious mistakes, errors of judgment, even very serious errors of judgment and the like are nowhere near enough for a crime as serious as manslaughter to be committed ….. [It has to be something which was] truly exceptionally bad which showed such an indifference to an obviously serious risk of life of the deceased and such a departure from the standard to be expected as to amount to a criminal act or omission and so to be the very serious crime of manslaughter.”

While manslaughter prosecutions remain relatively, rare in recent years it feels like there have been more manslaughter investigations and situations, where early on, there is a statement that manslaughter charges will be brought.

This is surprising given the inevitably complex fact patterns in most cases, as in fatal workplace incidents there are often a number of individuals with overlapping and interwoven responsibilities who have a relevant duty of care and at the same time there can be a hierarchy of command for investigators to pick through. This can result in charges being brought against more than one individual. After the fatal incident at Hannover Square in London in 2012, three individuals were charged with gross negligence manslaughter but only one was convicted following a two month trial.

So what will sentencing look like under the new Guideline?

Taking the Hanover Square example, the Managing Director was found guilty of manslaughter and sentenced to twelve months imprisonment. Under the new Guideline that sentence would undoubtedly be higher.

The Guideline asks judges to adopt a step by step approach to sentencing, assessing the culpability of the offender, applying aggravating and mitigating features and taking into account a number of other factors.

At the most serious end for Level A “very high” culpability offences there is a starting point of 12 years imprisonment with a range of 10-18 years. At the other end culpability Level D “lower culpability” offences start at 2 years with a range of 1-4 years.

Time will tell how the Courts approach the assessment of culpability under the new Guideline and whether the Prosecution will simply seek to argue that offences are always at the most serious end of the scale. For example, the Guideline specifies that “high culpability” offences includes those where “the offence was particularly serious because the offender showed a blatant disregard for a very high risk of death resulting from the negligent conduct” and/or “The negligent conduct was motivated by financial gain (or avoidance of cost)”. In our view the former goes some way to simply restating the offence and so it could be argued to apply in all manslaughter cases; the latter similarly might apply as decisions made in a workplace environment can frequently have an element or relevance to cost.

Helpfully there are a number of factors indicating lower culpability which may apply in health and safety cases. This includes “The negligent conduct was a lapse in the offender’s otherwise satisfactory standard of care” and for those lower in the hierarchy “The offender was in a lesser or subordinate role if acting with others in the offending”.

Will the new Guideline deter offending?

We think that this is unlikely. Whether manslaughter has been committed in a workplace context is never clear cut, with juries having to carefully consider and balance a number of factors to determine guilt or innocence.

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