Sentencing in 2018
In 2018 we saw continued high fines for large companies convicted of health and safety offences as the courts applied the sentencing guidelines that were introduced in 2016…
Published 9 January 2019
Published on 31st July 2018 the new Sentencing Guidelines came into force on 01 November 2018 and apply to all individuals aged 18 or over regardless of the date of the offence.
The Sentencing Council's aim in producing the Definitive Guidelines is to promote "consistency in sentencing and transparency in terms of how sentencing decisions are reached".
The guideline covers 4 types of manslaughter; unlawful act manslaughter, manslaughter by reason of loss of control, manslaughter by reason of diminished responsibility and gross negligence manslaughter.
Gross Negligence Manslaughter is the most relevant offence in a workplace context and occurs when the offender is in breach of a duty of care towards the victim which causes the death of the victim and amounts to a criminal act or omission. In a work setting, it could cover employers who completely disregard the safety of employees, for example, where an employer’s long-standing and serious disregard for the safety of employees, motivated by cost-cutting, has led to someone being killed.
Gross Negligence Manslaughter incorporates such a wide range of scenarios and despite the comprehensive guidelines not all cases are readily catered for.
A charge for Gross Negligence Manslaughter will arise where the actions of an individual, who themselves owed a duty of care which was breached, can be shown to have caused or contributed to the death.
With a maximum sentence of life imprisonment with a range of 1 – 18 years, the new guidelines will inevitably lead to tougher penalties for health and safety offences. Custodial sentences in such cases are already on the increase and it is expected that not only will large fines be imposed for the most serious offenders; individuals can also expect lengthy custodial sentences.
In line with other recent sentencing guidelines; it requires gross negligence manslaughter offences to be classified in one of four offence categories. Each of the categories has a starting point of a custodial sentence.
Much like the guidelines for sentencing Health and Safety Offences, the guidelines for Gross Negligence Manslaughter require the Court to follow a 9-step process when determining sentence.
Starting with Culpability, a Judge will have to determine where the offence lies in a range from low to very high. The guidelines set out factors which indicate culpability at the various levels.
Whilst other recent guidelines have required an assessment of the risk of harm, in Gross Negligence Manslaughter cases this is not the case and the guidelines state that "harm caused will inevitably be of the utmost seriousness".
The guidelines then require the Judge to go on to consider a range of other factors to reach the eventual sentence.
Should you wish to read the guidelines themselves then they are available online:
R v Neil Carpenter (November 2018) – Farmer sentenced to 4½ years imprisonment for Gross Negligence Manslaughter and 10 (concurrent) months for two HSWA Breaches after a worker (20) was killed when she became entangled by her hair in a dangerous power take off shaft at the back of a tractor.
R v Andrew Winterton (November 2018) – Construction manager's conviction and sentence upheld on appeal. Sentenced to 4 years for GNM, and 28 (concurrent) months for HSWA breaches after a worker was crushed in a building site trench.