09 Nov 2018

Manslaughter guidelines recognise that caregivers are at breaking point

Manslaughter is a rare offence: only 153 sentences across all forms, which range from “one punch” deaths to caregiver neglect, were passed in 2016.

So why did the Sentencing Council decide last week to bring a definitive guideline into force, particularly given the announcement notes that sentencing in the majority of cases will not change as a result?

The only cited exception is an increase in penalties in some gross negligence cases, particularly where death has been caused by an employer’s disregard for safety motivated by cost-cutting.

Often in criminal law, a new approach to sentencing can be a bellwether of popular opinion or its political interpretation. For example, recent moves to toughen the road traffic regime or increase fines for large corporate offenders.

The council’s emphasis here likely reflects an increasingly common view that, while manslaughter is not the same as murder, where fatal neglect is persistent, serious and motivated by profit, it should be sentenced on a similar footing.

The guideline might also be anticipating the response to a manslaughter conviction in a major disaster such as Hillsborough or Grenfell, particularly if following previous practice might have resulted in a short custodial term. The media would no doubt be quick to divide any sentence by 96 (Hillsborough) or 72 (Grenfell) to calculate how many days in each life the offence was deemed to be “worth”.

The guideline includes another topical addition to the existing sentencing formula, although curiously not one to which attention has been drawn.

Now included is a set of mitigating factors which are clearly aimed at providing some relief to those in the caring professions. For example, where an offender “lacked the necessary expertise, support or training” or “was subject to stress or pressure”, the court should consider reducing the sentence.

Interestingly, these factors were not included in the draft guideline published in July last year but were introduced at the consultation stage. What happened in between?

Notably, decisions were reversed in two high-profile healthcare manslaughter cases, with both the conviction of optometrist Honey Rose being and the striking-off of Dr Hadiza Bawa-Garba being overturned on appeal this year. Both cases attracted public attention and the fate of Dr Bawa-Garba raised particular fears when it became apparent that she had been working under immense pressure with scant support on the day of Jack Adcock’s death in February 2011.

Therefore, it is no surprise that the Sentencing Council has taken the opportunity in this guideline to introduce factors that would protect those in similar positions.

It is not so clear why such a deliberate shift in policy has not been front and centre of publicity in the same way as increased sentences for more reprehensible conduct. It may be to avoid questions as to why more has not been done.

Alternatively, perhaps there is a fear of being accused of a populist, knee-jerk reaction. Either way, it reminds us that reading beyond a press release is always worthwhile.

This article was originally published in The Times Law Brief, and can be accessed here, behind a paywall.

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