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01 Nov 2018

The Crimes They Are A Changin’ – How headlines influence guidelines

Today (1 November 2018) the Sentencing Council’s Manslaughter Definitive Guideline (‘the Guideline’) comes into force. The Guideline is part of the series issued since 2004 and which, by virtue of the Coroners & Justice Act 2009, a sentencing court must follow except where it is in the interests of justice not to do so.

A softly cynical view on timing might be that, having exhausted other categories which are more quantifiable (such as theft) or comparable (drugs and assaults at least being divided up into classes of severity and intent), the Sentencing Council (‘the Council’) now feels obliged to tackle one of the more difficult sentencing challenges. Whilst manslaughter offences may share a common outcome (an unlawful death), they occur via a huge variety of actions and inactions and in states of mind ranging from intent to neglect. They form a spectrum from just short of murder (i.e. but for reason of diminished responsibility or reason of loss of control) to ‘one punch deaths’, workplace fatalities and neglect by caregivers.

They are also rare offences, with only 153 sentences being passed across all forms of manslaughter in 2016. As such, this was unlikely to have been ahead of more prolific offence categories on the Council’s priority list. So why has manslaughter sentencing been formalised now, particularly when the covering press release[1] notes that sentencing in the majority of cases is not expected to change?

As is often the case with changes in criminal law, a new approach to sentencing can be a bellwether of popular views, or at least their political interpretation. By way of example, the idea that serious traffic offences were taken too lightly resulted in the Government’s 2017 plan to increase the maximum sentence for causing death by dangerous driving to life imprisonment, and to create a new offence of causing serious injury by careless driving. This is part of a campaign which began with the introduction of a drug driving offence (committed irrespective of whether the driver’s ability was impaired) in 2015 and looks ahead to the possible introduction of a new offence of causing death by dangerous cycling[2].

As noted above, the Council do not in fact expect sentences for the majority of offences to change as a result of the Guideline. The exception is an increase in penalties for some gross negligence manslaughter cases, particularly where the death has been caused by an employer’s disregard for safety, motivated by cost-cutting. This is consistent with the recent trend towards tougher sentences for health and safety offences, most notably the 2015 Sentencing Council Guideline on Corporate Manslaughter, Heath & Safety and Food Safety Offences[3]. This significantly increased sentences for the most serious health and safety offences and, in particular permitted courts to exceed even the maximum prescribed fine for especially large corporate offenders.

In the case of this Guideline, the Council’s emphasis likely reflects an increasingly prevalent view that, whilst the mens rea of gross negligence manslaughter is quite distinct from murder, where the neglect is persistent, serious and motivated by profit, it deserves to be sentenced on a similar footing. The Guideline may also be attempting to prepare for the public response which would follow a manslaughter conviction in a major disaster such as Hillsborough or Grenfell, particularly if adhering to previous sentencing practice might have resulted in only a short custodial term. Headlines would no doubt be quick to divide any sentence by 95 (Hillsborough) or 72 (Grenfell) to calculate how many days in each custody each life was deemed to be ‘worth’.

The Guideline also includes another interesting topical addition to the existing sentencing formula, although curiously not one to which the Council has sought to draw any attention.

Now included in the Factors reducing seriousness or personal mitigation (i.e. those which court might consider justification a reduction in sentence) on conviction for gross negligence manslaughter are the following:

  • The offender lacked the necessary expertise, equipment, support or training which contributed to the negligent conduct.
  • For reasons beyond the offender’s control, the offender was subject to stress or pressure which related to and contributed to the negligent conduct.
  • For reasons beyond the offender’s control, the negligent conduct occurred in circumstances where there was reduced scope for exercising usual care and competence.
  • The negligent conduct was compounded by the actions or omission of others beyond the defendant’s control.

Significantly, these factors were not included in the draft Guideline published on 4 July 2017. Rather, they were introduced during the consultation stage. So what happened between that draft and the publication of the Guideline on 31 July 2018?

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. Many doctors expressed concern that they found themselves in the same position all too often.

Unsurprisingly, calls for reform followed and the then-Health Secretary Jeremy Hunt commissioned a ‘rapid policy review’ [5] which, inter alia, recommended a revision of CPS guidelines on prosecuting gross negligence manslaughter, presumably with particular consideration given to the treatment of medical professionals when patients die. It is therefore also unsurprising that the Council have taken the opportunity in the Guideline to introduce mitigating factors which are clearly aimed at the caring professions (although it should not be forgotten that even if the Guideline had been in force, it would not have any impact on the jury’s verdict for Dr Bawa-Garba or Honey Rose).

It is not so clear why such a seemingly deliberate shift in sentencing policy has not been front-and-centre of the Council’s publicity in the same way as increased sentences for more reprehensible conduct. It may be that those instigating the new approach do not wish to be questioned as to why more has not being done (and is unlikely to be done) to protect doctors. Alternatively, perhaps there is a fear of being accused of a populist knee-jerk reaction which fails to address the real issue. Either way, there is at least one lesson to be learnt here: always read beyond a press release.

[1] https://www.sentencingcouncil.org.uk/news/item/sentencing-guidelines-for-manslaughter-introduced/

[2] Heavily influenced by the 18 month sentence received in 2017 by cyclist Charlie Alliston for causing the death of pedestrian Kim Briggs.

[3] https://www.sentencingcouncil.org.uk/news/item/new-sentencing-guidelines-introduced-for-corporate-manslaughter-health-and-safety-and-food-safety/

[4] Also note the quashing of the conviction of surgeon John Sellu in September 2016

[5] https://www.gov.uk/government/publications/williams-review-into-gross-negligence-manslaughter-in-healthcare

This article was originally published in CrimeLine and can be accessed here

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