06/09/2017
The Sentencing Council’s consultation process for the manslaughter sentencing guidelines has been in progress for a month. If all goes to plan, the new guidelines, which increases the risk of a significant custodial sentence for directors and senior managers if breaching health and safety rules and regulations, will come into force late next year.
Given the high-stakes connected with the proposed manslaughter sentencing guidelines, it is likely that the issue of what constitutes gross negligence manslaughter will once again come into the spotlight.
Recent Article
In a recent article in the Journal of Criminal Law, Dr Anne Lodge, senior lecturer in law at Teesside University, stated,
“There is no comprehensible and consistent means of measuring whether conduct is sufficiently gross to warrant criminal conviction. The gross negligence condition also sets the culpability bar too low by permitting the criminal censure of undeserving defendants who did not advert to any risk of death associated with their conduct.”
According to Dr Lodge, academics have long criticised gross negligence manslaughter, calling it a “dog’s breakfast” and “common law at its worst”. Currently, more weight is given to the harm caused, as opposed to the offender’s culpability. This has resulted in
“a poorly defined serious homicide offence which leaves much to the discretion of the jury, is incapable of any objective and fair measurement, and needs further judicial or legislative attention” .
The new guidelines set out custodial sentences of 12-18 years for gross negligence manslaughter, where both the offender’s culpability and the harm caused are deemed very high or high.
If employers are going to face these types of lengthy custodial sentences, it is imperative that what constitutes gross negligence manslaughter is clearly defined, so a robust defence can be constructed.
Dr Lodge argues that:
“the nebulous notion of gross negligence is simply too broad to be a defensible standard of criminal culpability” and proposes “the offence boundaries must be redrawn to ensure the lower limits of manslaughter are defined with greater precision to withstand damaging claims of uncertainty and to ensure that only those whose conduct is deserving of state censure are punished.”
What is gross negligence manslaughter?
Manslaughter can be defined as:
“The unjustifiable, inexcusable, and intentional killing of a human being without deliberation, premeditation, and malice. Or, the unlawful killing of a human being without any deliberation, which may be involuntary, in the commission of a lawful act without due caution and circumspection ”.
Voluntary and Involuntary
In English law, it is split into two categories, voluntary and involuntary. Voluntary manslaughter must have an intention to kill or cause serious bodily harm behind it.
Involuntary manslaughter is killing without intent.
Gross negligence manslaughter comes under the involuntary category. To apply, the accused must have owed the deceased a duty of care, which is almost always the case in an employer/employee relationship.
Lord Mackay LC set out the scope of gross negligence manslaughter in the case of R v Adomako [1995] 1 AC 171.
“… [T]he ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.”
There appears to have been uncertainty as to the level of fault required for gross negligence manslaughter since its inception. In R v Bateman (1925) 19 Cr App R 8, it was held that punishable negligence must display "disregard for the life and safety of others'. Dr Lodge calls this
“an ambiguous statement which could be interpreted as requiring either objective fault or subjective fault on the part of the accused, depending on whether the term disregard requires awareness of a risk.”
Recklessness has been used post-Bateman synonymously with gross negligence. This widens the scope of manslaughter as mere heedlessness of the risk is sufficient, and it is no defence that the accused inadvertence to the risk does not constitute a gross breach .
In Adomako, the House of Lords determined that the negligence requirement was objective and that the negligence had to be so gross that a risk of death would have been obvious to a reasonable person in the accused's circumstances. When determining gross negligence, recklessness should be given its natural meaning according to Lord Mackay.
Negligence and Risk
The difference between negligence and risk is not necessarily clear cut. Negligence has been described as the “inadvertent creation of unreasonable risks” while recklessness is the “conscious taking of those said risks .”
But what if a director or senior manager initially knew of the risks and then forgot about them prior to the victim’s death occurring? Is this reckless, therefore gross negligence? To what degree is the awareness of the risk required to constitute not just negligence, but the higher threshold of “gross negligence”.
Dr Lodge concludes that the problems defining gross negligence are “insurmountable” and
“the reliance on the jury's instinct to determine the boundaries of criminality by reference to the standard of the reasonable person and the lack of clarity about what constitutes negligence (as distinct from recklessness) provide sufficient reasons alone to revisit the offence.”
In summary
The lack of clarity identified by academics as to what defines ‘gross negligence manslaughter’ coupled with the proposed new sentencing guidelines poses a serious risk of injustice being done in the context of health and safety law. It is therefore imperative that before the new sentencing guidelines are brought in, a fresh look is taken at the offence of gross negligence manslaughter to provide directors and business owners with a fair chance at understanding what constitutes the offence.
Business owners wishing to respond to the consultation on the new sentencing guidelines have until 10th October 2017. The guidelines are expected to come into force for sentences imposed from December 2018.
Fisher Scoggins Waters is a London based law firm who are experts in construction, manufacturing, and engineering law. If you have any questions about health and safety matters or require an emergency response to an incident, please phone us on 0207 993 6960.
(1) Lodge, A (2017), Gross negligence manslaughter on the cusp: the unprincipled privileging of harm over culpability, Journal of Criminal Law, 2017, 81(2), 125-142
(2) Ibid
(3) http://legal-dictionary.thefreedictionary.com/manslaughter
(4) Lodge, A (2017), Gross negligence manslaughter on the cusp: the unprincipled privileging of harm over culpability, Journal of Criminal Law, 2017, 81(2), 125-142
(5) L. Alexander and K. Kessler Ferzan Crime and Culpability: A Theory of Criminal Law (Cambridge University Press, 2009) 83.
(6) Lodge, A (2017), Gross negligence manslaughter on the cusp: the unprincipled privileging of harm over culpability, Journal of Criminal Law, 2017, 81(2), 125-142