New sentencing guidelines propose jail terms of up to 18 years for gross negligence manslaughter
Although the highest sentences are going to apply to individuals whose disregard of safety was motivated by cost saving and where there is a “blatant disregard for a very high risk of death”, for medium culpability cases the sentencing will still rise. Dr Simon Joyston-Bechal, Director at Turnstone Law, goes into detail as to what the changes could mean for you.
The Sentencing Council published its definitive guidance on 31 July 2018 covering new sentences for individuals who commit manslaughter. This includes a step-by-step guide that judges must follow in determining sentences for gross negligence manslaughter, which is the most serious offence that can be committed by an individual for a health and safety breach. The new rules come into force for sentences imposed from 1 November 2018, but it is retrospective in that it will apply to existing cases that have not concluded before that date.
The message for the boardroom is to sit up and take note and above all to avoid the worst culpability flashpoints of cost saving and disregarding a very high risk of death.
How does this relate to the 2016 sentencing guidelines for health & safety?
The sentencing guidelines introduced in February 2016 for health and safety offences and corporate manslaughter have led to a steady rise in fines for companies and a reduced threshold for individuals to be sent to jail under the two-year maximum term for health and safety offences.
Gross negligence manslaughter is committed by an individual whose gross breach of a duty of care causes or significantly contributes to a death. This offence was excluded from the guidelines in 2016 and we can now see that it is the Sentencing Council’s intention that, for workplace cases, it will also be punished more severely than before.
How are the proposed new sentences calculated?
There are four levels of culpability, from ‘low’ to ‘very high’, each of which leads to a different starting point jail term. The starting points are 12 years, eight years, four years and two years for culpabilities of ‘very high’, ‘high’, ‘medium’ and ‘lower’, respectively. Other factors can then be taken into account to move you down a little or up a lot within a specified range around each starting point. For example, the ‘very high’ range is 10 to 18 years and you move up the range if, for example, more than one person was put at risk or you ignored previous warnings.
A number of factors are listed to enable the judge to determine the right culpability category. In a typical case arising in the workplace, the most likely factors that would put you into the ‘high’ culpability category are: cost saving as a motivation for the breach; and “blatant disregard for a very high risk of death”.
In the absence of these two factors, a typical workplace case would most likely be in the medium culpability category (starting point four years imprisonment, with a range from three to seven years). At present, sentences of this length would be for cases at the most serious end of the spectrum. So, this represents an increase for typical cases, as was intended.
If cost saving is part of the motivation, then that would indicate ‘high’ culpability (starting point eight years, with a range from six to 12 years). With hindsight, cost saving can quite often be shown by the prosecution to have been a part of the reasoning for a breach in workplace cases.
If there was a “blatant disregard for a very high risk of death”, that would similarly indicate ‘high’ culpability. This test requires the disregard to be blatant; but I don’t see the word ‘blatant’ as raising the bar here. If you have disregarded a very high risk of death, someone has died and you have been convicted of gross negligence manslaughter, won’t that always be seen as ‘blatant’? If so, the bar set for this factor is that there must be a ‘very high risk of death’. That will be looked at with the hindsight of a death having happened, so it will apply in many cases but not all.
Very high culpability
A case is likely to be taken into the ‘very high’ culpability category if there are a combination of ‘high’ culpability features. This would apply to workplace cases if you were saving costs and you (blatantly) disregarded a very high risk of death. It leads to a starting point of 12 years imprisonment with a range from 10 to 18 years.
It seems to me that this very much escalated sentence will apply to a significant proportion of workplace cases – clearly the worst ones. For example, the owner of an Indian restaurant, saving money by purchasing ground peanuts instead of ground almonds, aware of a previous incident of a peanut allergic reaction and nonetheless continuing to describe dishes falsely as free of peanuts. Or the boss of a construction company, having been warned that a worker had fallen from a roof on a project, continuing to get the project done to avoid the delay and cost of introducing safeguards, and then a worker falls to his death.
And Grenfell reminds us that product related cases could come up in future. Imagine if you have supplied or used a construction product in the past (not just cladding panels), you have become aware that it poses a serious safety risk and you decide to avoid the costs that would arise from warning current owners/occupiers and them requiring the product to be replaced at your expense. A fatal accident in these circumstances could have all the ingredients for the longest jail terms – very much longer than at present.
What do the changes mean?
The changes mean that not just for the worst cases but now for typical workplace cases of gross negligence manslaughter, we can expect four year jail terms. But for cases that exhibit one or both of the new flashpoint features (cost saving and disregarding a very high risk of death), we can expect to see jail terms starting at 8 years and 12 years and potentially going up higher.
There will be two schools of thought as to whether that is to be welcomed. But it is very much less draconian than the original proposals by the Sentencing Council. I successfully led a lobbying exercise in the consultation on behalf of the Health and Safety Lawyers Association; and the Sentencing Council accepted my arguments that two of the ‘high’ culpability features that they previously proposed should be dropped. The first was that merely being aware of a risk of death arising from your breach should take you to ‘high’ culpability. The second was that if the breach persisted for weeks or months, that should also take you to ‘high’ culpability.
So those of us defending cases should be very pleased that these new guidelines, although increasing sentences, do not do so as much or in the unfair way that was previously planned.
Message for the boardroom?
The message for the boardroom is clear. Senior executives need to be aware of the behaviours that can get them into the worst trouble and proactively lead an agenda of compliance. Furthermore, these guidelines can be harnessed as a tool to train directors and senior executives as to the importance of setting the right tone at the top.
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