The new sentencing guidelines for gross negligence

Safety advice notice: 56
December 2018

Brian Parker, our Business Development Manager, Technical Support, is the sub group Chairman of IPAF's 'Spread the Load' working group, which is working under the direction of the IPAF UKCC (UK Country Council).

He has now been tasked with updating the IPAF guidance to bring clarity and standardisation to the industry.

His work will also involve ensuring that the guidance also considers wheeled and tracked MEWPs.

Brian Parker discusses the upcoming changes to sentencing guidelines of gross negligence.

The penalties imposed on individuals for fatal accidents in the workplace are set to increase after the Sentencing Council for England and Wales reviewed its guidance for manslaughter not specifically relating to Health and Safety Offences.

This will change the sentencing range available to judges when trying a health and safety case and will now also give judges a much grater custodial sentencing range for all types of manslaughter.

The Sentencing Council consulted in 2017 to draft sentencing guidelines for gross negligence manslaughter.*

What is gross negligence manslaughter?

Gross negligence manslaughter occurs when the offender/offenders':

  • Is in breach of a duty of care towards the victim
  • Causes the death of the victim and, having regard to the risk involved
  • Conduct was so bad as to amount to a criminal act or omission

Manslaughter is not just an offence that can be directed towards senior management in a business following a workplace death; any person can be implicated.

So what has changed?

As of October 2018 the law hadn’t changed, the potential for longer custodial sentences have always been available to judges, however they haven’t been used and this is why very few individuals have been imprisoned.

Moreover increased fines may not only make the directors and boards of business take note but also the potential for individuals at all levels of the business, could you afford a fine 700 times that of your weekly salary? I guess many of us wouldn’t have that ability.

The new guidelines came into force for sentences imposed from 1st November 2018, but what’s certainly worth noting is that they are also retrospective. Because of this they will apply to existing cases which have not been concluded.

The culpability starting points have been given as two years for ‘low’, four years for ‘medium’, eight years for ‘high’ and 12 years for ‘very high’ respectively.

As noted, for the lowest level of culpability, individuals can expect a two year sentence, but this moves quickly up to eight or 12 years if a judge determines that new features, or what some have referred to as ‘flashpoints’ such as ‘cost saving’ and/or ‘disregarding very high risk of death’, factors have been met.

Be mindful that in cases where perhaps more than one person was put at risk, or you have ignored previous warnings, then you could be sentenced up to 18 years in jail.

What do the changes mean?

The changes mean that for a typical workplace case of gross negligence manslaughter, we can now expect to see more four year jail terms being given. But for cases that exhibit one or both of the new ‘flashpoint' or 'contributing features’ i.e. 'cost saving' and 'disregarding a very high risk of death', we can now expect to see jail terms starting at eight years, 12 years and above.

So how is culpability decided?

Culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction.

A degree of flexibility in determining the culpability of an offender (in effect, how ‘guilty’ they are) is particularly important in relation to the guidelines. Very high culpability cases will range in type and scenario.

The guidelines sets out a nine stage step-by-step decision making process for the court to use to ensure a consistent approach to sentencing in gross negligence manslaughter cases across England and Wales.

Step 1: involves determining the offence category, which reflects the severity of the offence
Step 2: relates to the starting point and category range. Starting points define the position
Step 3: then takes into account any factors which would indicate a reduction in the accused assistance during the trial
Step 4: then considers a reduction for guilty pleas
Step 5: considers whether it would be appropriate to impose a life sentence
Step 6: covers the totality principle. This is a common law principle which applies when a court imposes multiple sentences of imprisonment
Step 7: in appropriate cases an offender may be disqualified from being a director of a company in accordance with Section 2 of the Company Directors Disqualification Act 1986, the maximum period of disqualification to 15 years
Steps 8 & 9: relates to the Criminal Justice Act 2003 and imposes a duty to give reasons and explain the effect of the sentence and also to give credit for any time spent on bail.

Quite harrowing reading no doubt, thankfully gross negligence manslaughter offences happen rarely.

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