Law of unintended consequences

In July 2017, the Sentencing Council issued a draft consultation document on the Sentencing of Manslaughter. There is currently no guideline for individual manslaughter offences and no mandatory sentences for manslaughter: the length and possible suspension of custodial sentences is largely down to the courts discretion. These new guidelines propose jail terms of up to 18 years for manslaughter. The consultation closed on 10 October 2017 and it is expected that the guidelines will come into force for sentences imposed after December 2018.

The charge of gross negligence manslaughter is the charge used when there has been a death at work. Gross negligence manslaughter is committed by an individual who gross breach of duty of care causes or materially contributes to a death. The Health and Safety Sentencing Guidelines from 2016 have had a significant rise in the size of fines that have been levied against firms which have breached health and safety. It seems that these new guidelines when applied to workplace deaths may have a similar effect on increasing the jail terms that can be imposed.

However, the Sentencing Council have stated that:

‘The proposed guidelines are based on an analysis of current sentencing practice, and in most areas, there are unlikely to be changes to sentence levels, but the Council expects that in some gross negligence cases, sentences will increase. An example could be 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.’

The Sentencing Council have said that the guidelines are not expected to change the sentencing severity in most cases – the exception to this is cases of gross negligence manslaughter which occur in the workplace.

The guidelines have four levels of culpability from low to very high and each has a different starting point for a custodial sentence. A starting point for a low level of culpability would be two years, four years for medium, eight years for high and 12 years for very high. In a case arising from a workplace death, there are a number of factors which are against the culpability being in the low category and make is more likely to fall into the high or very high category. This is particularly true if the offender was aware that the breach could cause a death, and if the breach persisted for weeks or months.

The offence of gross negligence manslaughter covers a number of scenarios and so it is difficult to see how these will be catered for with one set of principles applied to sentencing. Courts are urged not to use an over mechanistic application of the factors pointing towards culpability. Otherwise, this could mean that the flexibility in sentencing for gross negligence manslaughter following workplace health and safety breaches will be lost.

Under these new guidelines offenders will be given longer sentences for gross negligence manslaughter if:

  • They are motivated by financial gain.
  • They knew that their actions were likely to cause harm.
  • They had a leading role to play in the work.

All of these factors can be found in most workplace deaths. In particular, the guidelines indicate that negligent conduct motivated by financial gain would indicate a high culpability.

According to the Sentencing Practice Council analysis since 2014 the maximum sentence for gross negligence offences was 10 years. Overall the average sentence was four years. The analysis also says that whilst data exists on the number of offenders and the sentences imposed, assumptions have been made about how current cases would be categorized across the levels of culpability and harm proposed in the new guidelines, due to a lack of data available regarding the seriousness of current cases, and the low numbers of cases (particularly for some of the lowest volume types of manslaughter). As a consequence, it is difficult to ascertain how sentence levels may change under the new guidelines. The analysis acknowledges that it will be difficult to estimate with any precision the impact the guidelines may have on prison and probation resources.

Last year a restaurant owner was jailed for six years for causing the death of a customer who was allergic to peanuts. However, under the new guidelines if an individual is found to be very highly culpable then they face a sentencing bracket of 10-18 years with a starting point of 12 years. These new guidelines could seriously increase the length of custodial sentences.

What will happen in event of medical negligence? In 2015 a doctor was convicted of gross negligence manslaughter following the death of a six-year-old boy. The doctor was sentenced to two years in prison which was suspended for 18 months. Under the new guidelines it would be difficult to see that such low sentence would be arrived at or the fact that it could be suspended. Will the potential of longer custodial sentences act as a deterrent to doctors and reinforce their duties to patients? – probably not. The consequence of these guidelines and the impact of work related death prosecutions and those for medical negligence is potentially very significant.

We have now seen an increase in fines for serious health and safety offences in particular levied against companies with large turnovers – it seems that there will also be an increase in the length of custodial sentences that individuals will now face following conviction. Whereas the increase in fines has risen to a level which is making companies aware of their responsibilities and their shareholders look to this as well it is hard to see how increasing the custodial sentences for work related death gross negligence manslaughter convictions will act as a deterrent. These guidelines will be applied retrospectively – so that someone who has committed an offence could find themselves being sentenced under the new guidelines. The increase in fines does have an impact on organisations and is felt by all of the organisation concerned, whereas the custodial sentence of an individual is an impact felt by that individual. It remains to be seen how these guidelines may increase sentencing or indeed impact on organisations or an individual’s attitude to health and safety.


Louise Smail is the author of Waste Regulation Law, Corporate Liability: Work Related Deaths and Criminal Prosecutions, and HSE and Environment Agency Prosecution: The New Climate

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