The use of force against intruders – the blurry lines of ‘lawful killing’
The Sentencing Council issued comprehensive guidelines on manslaughter at the end of July. This follows a consultation process and consideration by the House of Commons Justice Committee (see our related blog). The effect of these guidelines is likely to be an increase in sentences for those convicted of gross negligence manslaughter.
The guidelines cover:
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.”
The new Guidelines will come into force on the 1 November 2018 and must be applied by judges passing sentence in all cases after this date.
The Sentencing Council provides a summary and 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. It could also arise in a medical setting when a practitioner falls far below the required standard in the treatment of a patient.
A case covered in the press was the so-called peanut allergy case (R v Mohammed Khalique Zaman  EWCA Crim 1783) 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”.
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.
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 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.
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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