It may not surprise you that someone on a night out who gets involved in a fight after a few drinks and kills their adversary with a single punch will probably end up in prison.
But the question recently considered by the Sentencing Council, which provides guidance to criminal courts on penalties in England and Wales, is whether it was right that white-collar directors whose gross negligence results in a workplace fatality received more lenient sentences, often avoiding imprisonment.
In a year when the media have focused on corporate transparency and fairness, it is perhaps fitting that new sentencing guidelines for all manslaughter convictions (other than corporate manslaughter) were introduced on 1 November in England and Wales. They are set to redress this imbalance of punishment and create greater consistency in sentencing.
An individual sentenced for gross negligence manslaughter will now be treated by a court in the same way as the person on the street involved in a tragic brawl. Those convicted of any type of manslaughter offence will be extremely lucky to avoid jail.
Gross negligence manslaughter is a “common law” offence. It isn’t set out in legislation; the legal position has been established through case law over years.
Even for the lowest culpability the recommended range is still one to four years in prison
That case law tells us that those convicted of gross negligence manslaughter must have four factors in common: they must be shown to have had a duty of care to the deceased; the facts must show that the individual breached that duty of care; the breach must have been a “gross” failing – the individual showed “such a disregard for life and the safety of others that it amounts to a crime against the state and conduct deserving punishment”; and the breach must have caused or contributed towards the death.
Anyone prosecuted for a gross negligence manslaughter offence that occurred on or after April 2010 will now be sentenced according to the guidelines.
They set sentencing “brackets” depending on the individual’s level of culpability. Even for those in the bracket for the lowest level – when a death occurred because of a lapse in usually good health and safety standards of the individual, for example – the recommended range is still one to four years in prison.
If greater culpability is demonstrated, prison sentences will range up to 18 years and judges are told to consider life sentences – 18 years followed by parole – for the most serious cases, as well as director disqualification for up to 15 years.
More than three years ago guidelines like these were introduced for sentencing other safety and health, food safety and corporate manslaughter offences. The impact has been not only much more significant financial penalties but also an increasing awareness of safety and health issues at corporate board level.
The introduction of such clear and serious penalties for individuals facing gross negligence prosecution is likely to have the positive effect of further raising the importance of safety and health compliance among directors making decisions on behalf of a company.
OSH professionals are encouraged to ensure that those they advise are aware of the potential penalties for breaches and to support and encourage good practice, rather than just scaremongering.