Tougher Sentencing for individuals following deaths in the workplace

Susan Dearden | Head of Legal | Finch Consulting

In the past 5 years an average of 142 people each year have been killed in the UK during their work.  Each fatal accident generates an investigation for possible offences and the first offence under consideration will normally be manslaughter.

Since February 2016, the Courts in England and Wales have been required to follow a Definitive Sentencing Guideline (which can be found here) to determine sentence on health and safety convictions and on any conviction for Corporate Manslaughter.  Scottish Courts also have regard to the Definitive Sentencing Guideline in these types of offence.

The Definitive Sentencing Guideline has led to very significant increases in the penalties imposed for health and safety offences.  But while it provided guidance on sentencing individuals for breaches of health and safety law, and corporates for manslaughter, it did not attempt to suggest how individuals convicted of manslaughter should be sentenced.

The Sentencing Council last week has issued a proposed draft guideline as part of a new consultation which is intended to close this gap and aims to achieve more consistent sentencing across a range of offences, including gross negligence manslaughter.  The consultation (a copy of which can be accessed here) will conclude on 10th October, 2017 following which it is expected that a definitive Manslaughter Guideline will be issued which the courts in England and Wales will be obliged to follow in sentencing manslaughter cases.

Those vulnerable to the charge of gross negligence manslaughter following a workplace accident include those whose actions or omissions are felt to be sufficiently serious to justify such a charge.  Guilt is not dependent on proof of any intention to cause death.  The offence is committed if:

  1. The accused owed the deceased a duty of care (e.g. employee to employee or employer to employee);
  2. The duty of care was breached (e.g. turning a blind eye to poor practices);
  3. The breach caused death; and
  4. Having regard to the risk involved, their conduct was so bad in all the circumstances as to amount to a crime.

On conviction, the proposed draft Manslaughter Guideline suggests a stepped approach to sentencing.  The judge will first have to consider and categorise the defendant’s culpability based on the facts and ranging from ‘Very High’ (Category A), through to ‘High’ (Category B), ‘Medium’ (Category C) or ‘Lower Culpability’ (Category D).

Very High culpability is expected to be rare.  Seven potential factors are suggested as indicating High (Category B) culpability including: negligent conduct motivated by cutting cost; negligent conduct which persists over a period of weeks or months, or negligence where the risk is clearly apparent to the offender.  The Lower culpability (Category D) rating will be applied where the risk of death was not appreciated by the offender, or was a lapse in an otherwise satisfactory standard of care.  Rather unhelpfully, Medium culpability (Category C) rating is identified with no more particularity then falling between the Lower and High culpability categories!

The categorisation will be applied to a matrix which will suggest a starting point for sentence, and a range for any sentence once mitigating and aggravating factors have been considered.  The starting point for a category A conviction is proposed to be 12 years custody (range 10 – 18 years).  For even the lowest culpability cases it is proposed that a category D offence on conviction would have a starting point of 2 years’ custody, with a range of 1-4 years.

It is worth noting that aggravating features likely to push a sentence above the recommended starting points are likely to include: putting others at risk by the offence committed (whether or not anyone else was in fact injured); blaming others, or attempting to cover up what happened.  Mitigating features include: remorse; the lack of previous convictions, and the breach of duty of care being an isolated occurrence.

Since the introduction of the Definitive Sentencing Guideline, the penalties imposed by the courts for these offences have soared with record levels of fine on corporate convictions, and an increasing use of custodial sentences for individuals.

We have also seen a surge in the number of prosecutions of individuals for breaches of the Health and Safety at Work etc Act 1974.

If the draft Manslaughter Guideline follows suit, we can expect that the likelihood and length of custodial sentences will increase on conviction for gross negligence manslaughter.  The publication of the draft Manslaughter Guideline and threat of lengthy custodial sentences is a timely reminder of the possible consequences of not taking health and safety seriously, and should engage the attention of anyone who still regards safety as someone else’s responsibility. This is an opportune time to review and remind staff of risk assessments which identify a risk of death from activities or processes, particularly where reliance on their behaviour is an essential part of the controls in place to manage that risk.

For further information about Finch Consulting’s Legal Services or for a confidential discussion please contact;

Susan Dearden

e: [email protected]

m: 07909 682688.