Today (4 July) the Sentencing Council has announced a consultation on its proposals for how offenders convicted of manslaughter should be sentenced in England and Wales.
It is the first time that the independent body responsible for developing sentencing guidelines for the courts has proposed comprehensive guidelines for such cases, which would include workplace fatalities caused by employers’ negligence.
The draft guideline has been published in the Manslaughter Guideline for Consultation document and covers four types of manslaughter.
The first – gross negligence – occurs when the offender breaches their duty of care towards the victim, resulting in death and amounting to a criminal act or omission. In the workplace this covers employers who disregard the safety of employees. It could also arise in domestic and medical settings.
The guidance also applies to unlawful act manslaughter, which includes deaths that result from assaults where there was no intention to kill or cause serious harm; manslaughter by reason of loss of control, which arises if the action of an offender, who would otherwise be guilty of murder, resulted from a loss of self-control; and manslaughter by reason of diminished responsibility, when the offender would have been suffering from a mental condition.
There are no existing guidelines for any other forms of manslaughter except corporate manslaughter, which is covered by the Sentencing Council’s health and safety offences guideline.
Under the draft guideline for sentencing manslaughter by gross negligence, the court would first decide the offence category by determining the level of culpability and the harm caused.
It includes four levels of culpability: very high (A); high (B), which lists seven factors including if the negligent conduct was motivated by financial gain (or avoidance of cost) and if it persisted for a long period of time; medium (C), where the culpability falls between high and lower; and lower (D), if the negligent conduct was a lapse in the offender’s otherwise satisfactory standard of care.
The council says suffering and the vulnerability of the victim should be considered at step two of the guideline, after the starting point has been determined. Step one states: “For all cases of manslaughter the harm caused will inevitably be of the utmost seriousness. The loss of life is already taken into account in the sentencing levels at step two.”
The next step would be for the court to identify the starting point to reach a sentence within the category range (see table below), irrespective of plea or previous convictions.
Step two: starting point and category range for a single offence of manslaughter resulting in a single fatality
|Starting point:||12 years’ custody||8 years’ custody||4 years’ custody||2 years’ custody|
|Category range:||10-18 years’ custody||6-12 years’ custody||3-7 years’ custody||1-4 years’ custody|
The court should then consider any additional factors not identified in step one, which may aggravate or mitigate the offence, and adjust the sentence arrived at so far.
Additional steps (there are nine in total) include taking into account the offender’s cooperation with the investigation, reduction for guilty pleas, totality principle to reflect the overall criminality, compensation and ancillary orders, reasons for the sentence, and consideration for time spent on bail.
The proposals are based on an analysis of current sentencing practice and the council expects that, in most cases, there are unlikely to be changes to sentence levels. However, it said that sentences could increase in some gross negligence cases, for example where a death was caused by an employer’s long-standing and serious disregard for the safety of employees which was motivated by cost-cutting.
Current sentencing practice in these sorts of cases is currently lower in the context of overall sentence levels for manslaughter than for other types. The consultation document highlights that 16 offenders were sentenced for manslaughter by gross negligence in 2014. All were handed custodial sentences that ranged from nine months to 12 years; four were suspended. The median sentence length was four years.
By comparison, 104 of the 107 offenders sentenced to unlawful act manslaughter in the same year received custodial terms ranging from two to 24 years (the median was eight years, six months). Two were sentenced to life imprisonment and one was made subject to a hospital order.
All nine offenders sentenced for manslaughter by reason of loss of control in 2014 were handed determinate custodial sentences in the range of four years and six months to 18 years, with a median sentence length of ten years. And six of the 23 offenders sentenced for manslaughter by reason of diminished responsibility received determinate sentences (one suspended), from 18 months to 25 years. Three were sentenced to life imprisonment.
The consultation is open to everyone until 10 October. Once the consultation exercise is over and the results considered, a final guideline will be published and used by the crown court. It will apply to all offenders aged 18 and over.