News

The new Sentencing Council guidelines for sentencing those who are convicted of manslaughter came into force in courts on 1 November 2018, and apply to England and Wales.

The new guidelines cover the offences of:

  • unlawful act manslaughter;
  • manslaughter by reason of loss of control;
  • manslaughter by reason of diminished responsibility; and
  • gross negligence manslaughter.

Gross negligence manslaughter is an offence which managers and company directors may be charged with if their negligence is found to have caused the death of an employee.

The guidelines set out a step-by-step decision making process for the court to use when sentencing manslaughter offences. Before sentencing is passed the court will have had to correctly determine the type of manslaughter offence in each case, as the proposed steps for each type of manslaughter may result in varying outcomes. 

Culpability factors

In terms of proposed sentencing guidelines for gross negligence manslaughter, firstly the court must determine which of the four levels of culpability apply to the offender.

The culpability factors are:

  • A, very high - this may be indicated by the extreme character of factors which fall under high culpability or a combination of high culpability factors;
  • B, high - which considers the following factors:
    • the offender persisted in the negligent conduct in the face of the obvious suffering of the deceased,
    • negligent conduct was in the context of other serious criminality,
    • the offender was clearly aware of the risk of death arising from the offender's negligent conduct,
    • negligent conduct was motivated by financial gain, or avoidance of cost,
    • the offender was in a dominant role if acting with others,
    • concealment, destruction, defilement or dismemberment of the body;
  • C, medium - this covers cases which fall between the categories of high and low because factors are present in high and lower which balance each other out and / or the offender's culpability falls between the factors as described in higher and lower;
  • D, lower - which considers the following factors:
    • negligent conduct was a lapse in the offender's otherwise satisfactory standard of care,
    • offender was in a lesser or subordinate role if acting with others,
    • offender's responsibility was substantially reduced by mental disorder, learning disability or lack of maturity.

The consideration given to harm is the same in all cases of manslaughter as inevitably a charge of manslaughter is only brought about after a loss of life has occurred. 

The second stage is for the court to determine the starting point and category range for a single offence of manslaughter. At this stage the guidelines state that the court should consider the suffering and vulnerability of the victim.

Sentencing in the second stage covers a variety of sentencing ranging from a minimum of one years' custody to a maximum of 18 years.

Culpability:

A

B

C

D

Starting point:

12 years’ custody

8 years’ custody

4 years’ custody

2 years’ custody

Category range:

10-18 years’ custody

6-12 years’ custody

3-7 years’ custody

1-4 years’ custody

Aggravating factors

Once a starting point has been established, the court must consider any additional factors which may aggravate or mitigate the offence, and adjust the sentence arrived at so far.  

Statutory aggravating factors include:

  • previous convictions;
  • an offence being committed whilst offender is on bail;
  • offence found to be motivated by any of the victims characteristics, e.g. religion, race, disability, sexual orientation, transgender identity.

Other aggravating factors would include:

  • a history of significant violence or abuse towards the victim by the offender;
  • involvement of others through coercion, intimidation or exploitation;
  • significant mental or physical suffering caused to the deceased;
  • offender ignored previous warnings;
  • commission of an offence whilst under the influence of alcohol or drugs;
  • offence involved use of a weapon;
  • others were put at risk of harm by the offending;
  • actions after the event, for example attempts to cover up or conceal evidence;
  • investigation hindered by or others suffered as a result of blame being falsely blamed by the offender;
  • offence being committed on licence or post sentence supervision or while subject to court orders.

Factors which would reduce the seriousness or reflect personal mitigation include:

  • no previous convictions or relevant convictions;
  • remorse;
  • attempts to assist the victim;
  • self-reporting and/or co-operation with the investigation;
  • for reasons beyond their control the offender lacked the necessary expertise, equipment, support or training which contributed to their negligent conduct;
  • for reasons beyond their 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;
  • negligent conduct was compounded by the actions or omissions of others beyond the offender's control;
  • good character or exemplary conduct;
  • serious medical conditions requiring urgent, intensive or long-term treatment;
  • mental disorder or learning disability;
  • age and / or lack of maturity;
  • sole or primary carer for dependent relatives.

Relevance to health and safety

The new guidelines are based on an analysis of current sentencing practice and it is thought that in most cases, there are unlikely to be changes to sentence levels. However where a death was caused by an employer’s long-standing and serious disregard for the safety of employees which was motivated by something such as cost-cutting, it is believed that sentences will increase in such gross negligence cases.

Sentencing for gross negligence manslaughter has always previously been lower than the overall sentence levels for other types of manslaughter offences, with a median sentence of four years in comparison to eight to ten years for unlawful act manslaughter and manslaughter by reason of loss of control.

Sentencing Council member Lord Justice Holroyde commented: "Manslaughter offences vary hugely - some cases are not far from being an accident, while others may be just short of murder. While no sentence can make up for the loss of life, this guideline will help ensure sentencing that properly reflects the culpability of the offender and the unique facts of each case."

For more information, see the:

This week the Health and Safety Executive (HSE) released their latest statistics on work-related health and safety in Great Britain.

The annual statistics, compiled by HSE from the Labour Force Survey (LFS) and other sources, cover work-related ill health, workplace injuries, working days lost, costs to Britain and enforcement action taken.

Key figures which came from the 2017/18 survey include:

  • 1.4 million work-related ill health cases;
  • 0.6 million work-related stress, depression or anxiety cases;
  • 0.5 million work-related musculoskeletal disorder cases;
  • 0.6 million non-fatal injuries to workers;
  • 71,062 non-fatal injuries to employees reported by employers;
  • 144 fatal injuries to workers;
  • 12,000 lung disease deaths linked to past exposures at work;
  • 2,595 mesothelioma deaths in 2016, with a similar lung cancer deaths linked to past exposures of asbestos.

As a result of these figures the survey found that 30.7 million working days were lost due to work-related ill health and non-fatal workplace injuries.

The costs of this included; 9.7 billion annual costs of new cases of work-related ill health, 5.2 billion annual costs of workplace injury and 15 billion annual costs of work-related injury and new cases of ill health.

Despite Britain continuing to be one of the safest places to work, the figures confirm the scale of the challenge HSE faces in making Britain a healthier and safer place to work, and there are still areas to improve on to prevent death, injury and ill health in the work place.

HSE Chair Martin Temple commented that "these figures should serve as a reminder to us of the importance to manage risk and undertake good health and safety practice in the work place". He noted that Britain's health and safety record is something we should be proud of but there is much more to be done and collectively we must take responsibility to prevent further incidents in the future.

For more information, see the:

The EU Commission, EU Council of Ministers and European Parliament have reached an agreement on including workplace exposure to diesel engine exhaust emissions (DEEE) in the updated Carcinogens and Mutagens Directive 2004/37/EC (CMD).

On 11 October the agreement was announced following a vote by Members of the European Parliament (MEP) on the employment and social affairs committee in March, which then triggered six months of negotiations.

The exposure limit will be set at 0.05 mg/m³ of elemental carbon from all diesel engines, without distinguishing between sources of diesel emissions. Although diesel engine exhaust emissions are regulated in the UK under the Control of Substances Hazardous to Health (COSHH) Regulations SI 2002/2677, there is currently no workplace exposure limit to guide regulators or employers.

In regards to how this impacts the UK will depend on its future relationship with the EU and the terms of any trade agreement drawn up following transitional arrangements. This is assuming that a Brexit withdrawal arrangement can be signed.

The EU estimates that 12 million workers are exposed to diesel engine exhaust emissions in the workplace. The agreement also covers limit values for workplace air or skin notations for the possibility of the chemical being absorbed through the skin, for five other cancer-causing substances. These are trichloroethylene, 4,4-methyledianiline, epichlorohydrine, ethylene dibromide and ethylene dichloride.

The agreement will then be submitted to the European Council's permanent representatives committee for approval and will then be subject to a vote by the European Parliament. A press spokesperson for the European Commission advised that once it is published after the final votes, member states will have two years to implement the Directive into their national legislation. Then the industry/companies will have another two years to implement measures to comply with the Directive. In the case of diesel exhaust they will have five years to do so. 

The Commission have stated "this will ensure better protection for more than 20 millions workers in Europe. Workers in the chemical, metal and car industry, professional drivers, construction workers and workers in the dock and warehouse sector, in particular, will benefit. At the same time, it will make our internal market simpler and fairer, with particular attention to help small and micro-enterprises comply with health and safety rules".

According to the EU, cancer is the leading cause of work-related deaths in the EU, with 53% of occupational deaths across the region attributed to cancer, almost double the 28% for circulatory diseases, while respiratory diseases account for 6%. While the majority of EU member countries have national exposure limits for many cancer-causing chemicals, these vary across the EU, with the result that not all workers have equal protection and businesses are not operating to the same standard.

The new additions were drafted under the guidance of Belgian MEP Claude Rolin who said "this agreement is a successful outcome, as we managed to introduce a limit value for diesel engine exhaust emissions (DEEE), after months of negotiation". In the EU more than 12 million workers are exposed occupationally to DEEE.

"This second revision of the Directive gives a clear signal: monitoring occupational exposure to more and more harmful substances substantially strengthens workers' protection. We need to constantly monitor this. Cancer is the leading cause of work-related death in the EU. It is unacceptable that workers lose their lives while trying to earn a living."

 For more information, see:

  • Proposal COM (2017)11 for a Directive amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work.

This week the Independent Review of Build Out: Final Report by Sir Oliver Letwin MP was published. In the draft analysis published in June, Letwin had focused on the issue of the build out rate of fully permitted new homes on the largest sites in areas of high housing demand. He concluded the similarity of the types and tenures of the homes on offer on these sites, and the limits on the rate at which the market will absorb such products are the fundamental reasons for the slow rate of build out.

In the final report Letwin presents recommendations about ways in which the Government could increase the variety and differentiation of what is offered on these large sites, raise the proportion of affordable housing, and raise the rate of build out.

Letwin concludes that the Government should:

  • adopt a new set of planning rules specifically designed to apply to all future large sites (initially those over 1,500 units) in areas of high housing demand, requiring those developing such sites to provide a diversity of offerings, in line with diversification principles in a new planning policy document;
  • establish a National Expert Committee to advice local authorities on the interpretation of diversity requirements for large sites, and to arbitrate where the diversity requirements cause an appeal as a result of disagreement between the local authority and the developer.

The Review suggests to give the greatest possible chance that new planning rules for large sites will have an effect in the near-term, the Government should:

  • provide incentives to diversify existing sites of over 1,500 units in areas of high housing demand, by making any future Government funding for house builders or potential purchasers on such sites conditional upon the builder accepting a Section 106 agreement which conforms with new planning policy for such sites;
  • consider allocating a small amount of funding to a large sites viability fund, to prevent any interruption of developing on existing large sites that could otherwise become non-viable, for the existing builder as a result of accepting the new diversity provisions.

The Review suggests to give the greatest possible chance of significant change in the build out rates and quality of large scale development in the longer term, the Government should:

  • introduce a power for local planning authorities in places with high housing demand to designate particular areas within their local plans as land which can be developed only as single large sites, and to create master plans and design codes for these sites which will ensure both a high degree of diversity and good design to promote rapid market absorption and rapid build out rates;
  • give local authorities clear statutory powers to purchase the land designate for such large sites compulsorily at prices which reflect the value of those sites once they have planning permission and a master plan that reflect the new diversity requirements;
  • give local authorities clear statutory powers to control the development of such designated larges sites, through either a Local Development Company or a Local Authority Master Planner who would develop a master plan and design code before the land is sold to privately financed Infrastructure Development Company.

The Royal Town Planning Institute (RTPI) welcomed the report, saying it signalled "a much overdue strengthening of public sector planning" but the recommendations should be extended "across a much wider section of the housing market". John Acres, RTPI president commented "the recommendations he is making today reflect a full grasp of the fact that untramelled market forces alone have not been delivering enough homes and will not deliver what the people need".

The RTPI had been closely involved in many stages of the review, stating that it echoes their key concern that "the delivery role of the public sector has been limited in recent years to responding to private sector proposals. The reviews recommendations to change this by giving enhanced powers for local authorities to achieve proactive development is very welcome".

Chancellor Phillip Hammond responded to the review in the Budget, stating that the report confirmed that housebuilders were not engaged in speculative landbanking, and that the Government would respond to his proposals in the new year. 

For more on this subject, see:

Her Majesty's Revenue and Customs (HMRC) has released a short guide with the updated charges applicable to all those disposing of waste by mean of landfilling, to which a landfill tax applies.

These rates currently apply to England and Northern Ireland under the provisions of the Finance Act 1996.

The landfill tax applies to all waste:

  • disposed of by way of landfill on or after 1 October 1996; and
  • at a licensed landfill site.

There are certain exemptions to the landfill tax charge, which are detailed in Part 3 of the Finance Act 1996.

The tax is charged by weight and there are two rates - standard rate for active waste and a lower rate for inert waste.

The charges are:

  Rate from 1 April 2020 Rate from 1 April 2019 Rate from 1 April 2018
Standard rate £94.15/tonne £91.35/tonne £88.95/tonne
Lower rate £3/tonne £2.90/tonne £2.80/tonne

Charging of landfill tax for Scotland is now set out in the Landfill Tax (Scotland) Act 2014, and for Wales in the Landfill Disposals (Wales) Act 2017.

For more information on this subject, see the:

Virgin Trains have been criticised this month over a health and safety policy which insists hot drinks bought on its trains must be put in a paper bag before passengers can take them back to their seats. The train company prides itself on reducing its impact on the environment and in 2006 pledged to spend $3 billion on tackling global morning. Nevertheless Virgin Trains has confirmed all hot food and drink purchased are placed in bags for "customer safety".

As a result environmentalists have accused Virgin Trains of adding to the "mountains of waste" already created in the UK each year. Allison Ogden-Newton, Chief Executive of Keep Britain Tidy commented that "giving away a paper bag with every hot drink adds insult to injury - a single-use cup in a single-use bag! Hopeless". She added "Virgin Trains needs to look at their sustainability strategy urgently to reduce waste for all our sakes, but especially for future generations".

Emma Priestland, plastics campaigner from Friends of the Earth said it is "always best" to avoid unnecessary single-use packaging, regardless whether it is paper or plastic. She asked why Virgin Trains were not encouraging customers to use a reusable coffee cup to avoid the risk of spilling hot drinks.

Customers have taken to social media to complain about the policy as far back as 2011, questioning the logic of paper bags to prevent spilling and branding it wasteful.

Virgin Trains have defended the policy, stating "safety is always our top priority" and that it is a policy adopted by many other train operators. They also added that they have introduced a 20p discount incentive for customers who bring a reusable cup for hot drinks. They have also introduced recycling bins at stations to collect mixed dry recycling. Translink also admitted to giving paper bags when buying hot drinks to "help minimise the impact of hot liquid spilling". 

Amelia Womack, deputy leader of the Green Party, stated there must be a bigger, co-ordinated strategy between railway companies and platform coffee shops to "reduce the level of rubbish being churned out and make train journeys less wasteful". She noted "there's a lack of obvious recycling services and until recently most networks wouldn't even accept my reusable cup".

 


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