Shaw, Re Attorney-General's Reference No 89 of 2006

A suspended sentence under section 118 of the Powers of Criminal Courts (Sentencing) Act 2000 requires both that custody would otherwise be appropriate and that exceptional circumstances justify suspension. Exceptional circumstances are fact-specific. The likely collapse of a business and consequent loss of employees’ jobs may sometimes be relevant, but will not normally be exceptional where an employer’s grossly negligent management of that business caused an employee’s death. Ordinary personal mitigation, however genuine, does not ordinarily alter that conclusion. Sentencing must preserve the imperative that workplace health and safety obligations are observed where failure may cause death.

The Attorney-General referred as unduly lenient a sentence imposed on Michael Shaw for gross negligence manslaughter and associated health and safety offences. Shaw was the managing director of a stone-cutting company. A 22-year-old employee died after entering the danger zone of a cutting machine whose safety devices had been disabled.

Following a trial in which the jury could not agree on manslaughter, Shaw pleaded guilty. Owen J at Winchester Crown Court imposed two years’ imprisonment suspended for two years and fines totalling £40,000 for the health and safety offences. The suspension was based solely on concern that immediate custody would cause the business to fail and put employees out of work.

The central issue was whether those consequences, together with the available mitigation, constituted exceptional circumstances under section 118 of the Powers of Criminal Courts (Sentencing) Act 2000.

1. The Attorney-General’s reference succeeded. The two-year suspended sentence was unduly lenient because its suspension was wrong in principle. The court substituted 15 months’ immediate imprisonment. The fines imposed for the health and safety offences remained unchanged.
2. Section 118 of the Powers of Criminal Courts (Sentencing) Act 2000 permits a suspended sentence only where immediate imprisonment would otherwise be appropriate and exceptional circumstances justify suspension. The statute does not define exceptional circumstances. Whether they exist depends on the facts of the individual case.
3. The consequences of imprisonment for a business run by an offender may in some cases be relevant to sentence. However, where gross negligence in the conduct of that business has caused an employee’s death, the likely collapse of the business and resulting unemployment cannot normally amount to exceptional circumstances. Treating those consequences as exceptional would weaken the incentive for hands-on managers of small businesses to comply with workplace safety obligations.
4. Shaw’s good character, genuine remorse, late but unusual guilty plea, ill health, and the delay before sentence were significant mitigation. They did not justify suspending a custodial sentence for criminal negligence which had caused a young employee’s death. The court nevertheless took those matters, including the further delay and the fact that Shaw had initially been told he would not go to prison, into account when fixing the substituted term.

• Court of Appeal (Criminal Division) — On the Attorney-General’s reference under section 36 of the Criminal Justice Act 1988, held that the suspended sentence was unduly lenient and substituted 15 months’ immediate imprisonment: [2006] EWCA Crim 2570.
• Winchester Crown Court — Owen J imposed two years’ imprisonment suspended for two years for gross negligence manslaughter, and fines totalling £40,000 for health and safety offences.