The use of force against intruders – the blurry lines of ‘lawful killing’
At the end of 2017, the Justice Committee published its report on the Sentencing Council’s draft guidelines on manslaughter.
In July 2017, prompted by a request from the then Lord Chancellor to develop a guideline for so-called “one punch” manslaughter cases, the Sentencing Council announced a consultation on its proposals for how offenders convicted of manslaughter should be sentenced in England and Wales. The consultation paper, amongst other things, sets out the specific draft sentencing guidelines for the below four offences:
Following the end of the consultation period in October 2017, in December 2017 the Justice Committee produced a report on the Sentencing Council’s draft guidelines where it made six recommendations. Three of the most significant of the recommendations are summarised below.
One of the Justice Committee’s recommendations relates to offenders who are suffering with mental health problems. The draft guidelines for unlawful act manslaughter and gross negligence manslaughter include a low culpability factor: “the offender’s responsibility was substantially reduced by mental disorder, learning disability or lack of maturity”. However, this is qualified by a statement that “[l]ittle, if any weight should be given to this factor where an offender exacerbates a mental disorder by voluntarily abusing drugs or alcohol or voluntarily failing to follow medical advice”. Taking guidance from other respondents, in their report the Justice Committee recommended that this qualification be deleted from the guidelines. This recommendation, amongst other things, is based on the “complex” relationship (as described by the Ministry of Justice) between mental health and substance abuse.
Another of the recommendations looks at the unlawful act manslaughter guidelines. For offences in the lowest range of culpability for example, where the unlawful act was in self-defence or the defence of others – the Law Society, in response to the guidelines, questioned the one to four years’ imprisonment proposed by the Sentencing Council. In agreement with the Law Society, the Justice Committee stated that those passing sentences should understand that they retain discretion where there is strong mitigation, to impose non-custodial sentences for unlawful act manslaughter at the lowest level of culpability.
Some of the respondents to the Council’s consultation expressed concerns about the proposed culpability factors for cases of gross negligence manslaughter. The Justice Committee agreed with these concerns and recommended that the Sentencing Council reconsider the proposed factors. In the draft guidelines it states that higher culpability may be indicated by “negligent conduct that persisted over a long period of time” and/or “the offender was clearly aware of the risk of death arising from the offender’s negligent conduct”. The Justice Committee concluded there was a risk that these high culpability factors would lead to “inappropriately long custodial sentences, especially in relation to clinical decisions taken by medical practitioners in testing circumstances, and situations where junior employees have little control in their workplace environment”.
The definitive sentencing guidelines on manslaughter are due to be published in September 2018 and will come into force in December 2018. It will be interesting to see which (if any) of the Justice Committee’s recommendations will be adopted by the Sentencing Council.
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