Weighing up the law

Laura White explains concerns that the new sentencing guidelines will herald an increase in custodial sentences

safety failings. From 1 November, the Sentencing Council’s (SC’s) new Definitive Guideline (DG) for manslaughter applies to people aged 18 and older, sentenced on or after that date in England and Wales, regardless of the date of the offence. As a result, those responsible for serious workplace fatalities can expect sentences of up to 18 years. The SC’s aim was to promote ‘consistency


in sentencing and transparency’ in terms of how decisions are reached. Four types of manslaughter are included, with gross negligence manslaughter (GNM) most relevant to fire safety. Under the DG, GNM offences are to be classified

in one of four categories referencing a number of factors. Whilst other guidelines required an assessment of the risk of harm, in manslaughter cases ‘harm caused will inevitably be of the utmost seriousness’. A list of indicators are given for assessing culpability: ‘very high’ culpability may be identified by the extreme character of one or more ‘high’ culpability factors, and/ or a combination, including: • the negligent conduct was motivated by financial gain (or the avoidance of costs)

• the offender was in a ‘leading role’ if acting with others (this has been changed from ‘dominant role’ in the consultation, to ‘make it clear that the role is only significant if it relates to the offending’)

• the offender showed a blatant disregard for a very high risk of death resulting from the negligent conduct

Concerns were raised during the consultation by health and safety professionals, who felt that the reality of workplace fatalities meant that a combination of factors would be present in many cases, pushing them into ‘high’ or ‘very high’ culpability. Given the jump between those, this can have very serious and unintended consequences.

E RECENTLY touched on the increasing incidence of custodial sentences for those found guilty of serious health and

Although some changes have been made,

concerns remain, and the DG’s recommendation that courts avoid an ‘overly mechanistic application’ of culpability, ‘particularly in cases to which they do not readily apply’, does little to assuage this. Many are wondering if previous flexibility in GNM sentencing has been sacrificed for consistency and transparency, and more, not less, uncertainty. The offence category indicates a starting point

and range for sentencing, with any aggravating or mitigating factors applied alongside reductions for assistance given or a guilty plea. There must also be consideration of whether compensation or another ancillary order is appropriate. Following the consultation, there is now a requirement to consider whether the individual should be disqualified from acting as a director, and reasons for the sentence imposed must be given. GNM convictions for workplace fatalities

are rare but increasing, as regulators seek to punish individuals responsible for egregious breaches. In June, director Richard Pearson of SP Fireworks Limited was sentenced to 10 years’ imprisonment following the deaths of an employee and a customer in an explosion at his fireworks shop. He was found to have flouted safety regulations and licensing requirements, storing fireworks far in excess of the quantities he was licensed to, and in a manner that could not possibly comply with safety limits. He may have been imprisoned for longer

if sentenced after 1 November – for ‘very high’ culpability, between 10 and 18 years may be imposed, with a starting point of 12 years. Much has been written on larger fines imposed on organisations for health and safety and fire safety failings, but directors and senior managers must take note. The growing incidence of custodial sentences means it now looks likely that individuals ultimately held responsible should expect more time in jail

Laura White is a solicitor in the health and safety team at Pinsent Masons DECEMBER 2018/JANUARY 2019 45

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