New sentencing regime for gross negligence manslaughter now in force

1 November 2018

The Sentencing Council issued comprehensive guidelines on manslaughter at the end of July. These are now in force and must be applied by judges passing sentence in all cases after this date from 1 November 2018.

The effect of these guidelines is likely to be an increase in sentences for those convicted of gross negligence manslaughter.

The guidelines cover:

  • Unlawful act manslaughter
  • Gross negligence manslaughter
  • Manslaughter by reason of loss of control 
  • Manslaughter by reason of diminished responsibility

Note that corporate manslaughter is covered by the Health and Safety Guidelines

The changes in the regime follow a consultation process and consideration by the House of Commons Justice Committee (see our related blog).

During the consultation process the Sentencing Council confirmed that the proposed guidelines are based on an analysis of current sentencing practice, and that in most areas, there are unlikely to be changes to sentence levels.  

However it is in relation to the offence of gross negligence manslaughter that change is expected.  It is foreseen that here sentences will increase as current sentencing practice for these cases is said to be “lower in the context of overall sentence levels for manslaughter than for other types.”  

What is gross negligence manslaughter?

The Sentencing Council provides a summary and offers various examples:

Gross negligence manslaughter – this 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. 

The circumstances vary greatly. In a domestic setting it could include parents or carers who fail to protect the victim from an obvious danger. In a work setting, it could cover employers who completely disregard the safety of employees.

Restaurants have also been in the spotlight over this past year, with cases covered in the press including R v Mohammed Khalique Zaman ([2017] EWCA Crim 1783) (November 2017) where a restaurant owner who had persistently failed over several months to take steps to ensure that customers suffering from peanut allergies were not served with food containing peanuts. One customer died after suffering an allergic reaction. His sentence of six years was upheld. The court confirmed that the sentence “was not out of line with other cases”.  More recently, on the 26 October 2018, Mohammed Abdul Kuddus and Harun Rashid, were found guilty of manslaughter by gross negligence in another “restaurant allergy” case.  Sentencing will take place on 7 November – under the new regime.

Penalties for cases of gross negligence manslaughter

The guidelines address culpability, harm, sentencing range and also aggravating and mitigation factors.

High culpability may be indicated by the “very extreme character” of factors such as: 

  • The offender continued or repeated the negligent conduct in the face of the obvious suffering caused to the deceased by that conduct;
  • The offence was particularly serious because the offender showed a blatant disregard for a very high risk of death resulting from the negligent conduct;
  • The negligent conduct was motivated by financial gain (or avoidance of cost);
  • The offender was in a leading role if acting with others in the offending.  

The starting point for sentences in these circumstances is 12 years custody with the category range 10-18 years.  At the other end of the spectrum the starting point of 2 years custody with a 1-4 years range would fit for circumstances where: the negligent conduct was a lapse in the offender’s otherwise satisfactory standard of care; the offender was in a lesser or subordinate role if acting with others in the offending.

Aggravating factors include previous convictions or a history of violence, and involvement of others through coercion, intimidation or exploitation. Mitigating factors include attempt to assist the victim and self-reporting/ co-operating with the investigation.

Given the extent of the negligence required to warrant a charge of gross negligence manslaughter it seems likely that the majority of defendants sentenced will fall within higher culpability brackets listed and face a serious penalty.

Conclusion

In 2016 only 10 offenders were sentenced for gross negligence manslaughter, an indication as to the limited occasions on which this charge is considered appropriate. Gross negligence manslaughter is likely to remain an offence reserved for the most serious cases. Where such cases fall to be sentenced, however, it is likely that the effect of these guidelines will be to increase sentences because of the nature of the behaviour required to justify such a conviction.

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