On 31 July 2018 the new sentencing guidelines for manslaughter offences were published by the Sentencing Guidelines Council. The impact on health safety offences is felt through the revised guidelines for gross negligence manslaughter. The new guidelines come into effect on 1 November 2018 and will apply from that date regardless of when the offence was committed.
Typically in health and safety cases we have seen the organisation being prosecuted for Corporate Manslaughter or offences under the Health and Safety at Work 1974, however, there is a growing trend by the Police to focus in on the individuals within organisations, and these guidelines have the potential to massively increase custodial sentences.
The increased risk of lengthy custodial sentences in the sentencing guidelines comes from the now familiar assessment of culpability that we saw introduced in the 2016 sentencing guidelines for corporate manslaughter and health and safety offences. Criteria contained within the 'high culpability' category include cost savings, and that the offender was aware of risk of death due to negligent conduct.
It is therefore easy in health and safety cases to see how an individual could be accused of allowing the risk of death to be present due to costs concerns if for example a risk assessment identifies a risk of death and remedial measures that are cost proportionate and yet nothing is done and death occurs.
Although one might expect, and hope that most cases will fall in the 'medium' culpability bracket (even with its starting point of 4 years custody with a range of 3-7 years), some of the criteria for high culpability are arguably easy to meet in a health and safety case.
The reality is that anyone of the criteria in the guidelines for high culpability could result in the offender being deemed to be highly culpable.
This then means that the sentencing starting point goes to 8 years with a range available to the court of 6 -12 years.
Recently a Company Director was sent to prison for 32 months after being convicted of gross negligence manslaughter. He employed a vulnerable individual to collect golf balls from a lake at around £20-£40 per day when the normal rate was around £1000 per day. The Judge indicated in his sentencing remarks that the deceased "was an unsuitable contender for the diving work you employed him to undertake, but you allowed him to take those risks to make a quick buck".
"The risk of death or serious injury was obvious to you, but your cavalier attitude towards safety was the cause of Mr P's death".
Under the new guidelines both cost savings and an awareness of the risk of death were present and the negligent conduct took place and therefore under the new guidelines the Directors culpability would undoubtedly be assessed as high and therefore attract a starting point of 8 years, a sentence three times longer than the one that was imposed.
Ultimately the message to individuals remains the same. Ensure that health and safety in the work place is managed properly and in the event of a fatal accident get legal support straight away.
So a lot of porridge for thought in Board Rooms across England and Wales.
