Weighing up the law


This month, Laura Page looks at gross negligence manslaughter, how it can relate to fire safety liability, and possible penalties


HIS OFFENCE potentially arises where there is a gross breach of a relevant duty of care which causes a death. ‘Gross’ is not strictly defined, but means something serious enough to amount to a criminal act or omission. The case of Donohue v Stevenson in 1932 established that a duty of care arises if requirements of foreseeability, proximity, fairness, justice and reasonableness establish duty. In the health and safety context, this includes


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the employer/employee relationship, and also that of individuals in businesses with consultants, the self employed and the public. Crucially, gross negligence manslaughter (GNM) is an offence committed by individuals; corporate manslaughter is the comparable offence committed by organisations. For GNM to arise, the gross breach must be a substantial element in the cause of death. A good example is the 2010 case of Nathan and


Martin Winter, who operated a fireworks company from a farm. In breach of their licence, they stored more products than allowed, and a fatality occurred at a display they held, after a fire caused by a lack of storage control. The two were sentenced to four and seven years’ imprisonment, respectively, for GNM. Sentences for manslaughter in general and GNM


have been criticised for a lack of consistency and, at times, undue leniency. This led the Sentencing Council in England and Wales to publish a consultation and draft guidelines last summer for sentencing offences (other than corporate manslaughter, already addressed in the Health and Safety Sentencing Guidelines, February 2016). The stated aim is to create consistency


and transparency in sentencing for four types of manslaughter, including GNM. Although unusual, GNM can occur in a range of circumstances, including deaths in domestic settings where parents or carers fail to protect the victim from obvious danger; workplace deaths after a health and safety breach; and cases involving medical practitioners. So it’s hard to foresee how these can be adequately catered for in one set of sentencing principles.


Whilst the council does not expect the guidelines to cause a substantial difference to penalties in most cases, that is not likely for GNM, where they accept that some sentences will increase. As potential GNM sentences under the guidelines range from one to 18 years’ imprisonment, for workplace fatalities, sentences could be substantially increased. In line with other recent changes, the draft guidelines require such offences to be classified in one of the four categories. The council said this should be done by assessing culpability in reference to a number of different factors, indicating a starting point and category range for sentencing to which any aggravating or mitigating factors are applied. Reductions may then be allowed, such as for assistance given or a guilty plea, while reasons for the sentence imposed must be given. Matters to account for in considering culpability


for GNM are often extremely complex, and few factors to consider in determining culpability, as well as listed in mitigation or aggravation, seem relevant in the context of a workplace fatality. As the council states, ‘developing a sentencing guideline for manslaughter by gross negligence has been particularly challenging because the offence occurs relatively rarely but in a very wide range of circumstances’. Although courts are urged to avoid an ‘overly


mechanistic application’ of factors pointing to culpability, doubts will arise over whether previous flexibility in sentencing following a workplace health and safety breach will be lost. This could lead to more uncertainty, and raises the question: should workplace fatalities in the form of GNM have been included in the Health and Safety Sentencing Guidelines? What is clear, though, is that the sentencing guidelines are set to contribute to the growing trend of stronger penalties for health and safety related offences in the workplace


Laura Page is a solicitor in the health and safety team at Pinsent Masons


www.frmjournal.com APRIL 2018 15


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