On 26th February, former Lord Justice of Appeal Sir Henry Brooke tweeted:
Sentencing for manslaughter where the assailant had no intent to cause serious harm presents a formidable challenge to any sentencing judge
— Henry Brooke (@HenryBrooke1) February 26, 2014
There can be no doubt about that given the vast spectrum of factual situations and degrees of culpability involved in manslaughter cases.
Serious public concern has been expressed at the 4 year sentence imposed on Lewis Gill (aged 20) for the manslaughter of Andrew Young (40) who suffered from Asperger's Syndrome. Some of the media coverage of the offence is at The Independent 27th February (with a video of the event). Unfortunately, sentencing remarks do not seem to have been officially released. However, The Independent report states:
Gill pleaded guilty to manslaughter. Steven Perian, defending, said Gill had felt threatened by Mr Young, but judge Keith Cutler rejected the claim. In passing sentence, Judge Cutler explained why he was sentencing Gill to only four years. He said: "What I have had to look at is what was in your mind at the time you threw that punch. You wanted to cause some injury to Mr Young. If you wanted to cause grievous bodily harm it would have been a murder charge. I bear in mind your early guilty plea. I accept there is no pre-meditated element and provocation does exist.
From the video in The Independent's report, it is clear that Mr Young had been involved in discussion with a cyclist and it is reported that this was about riding on the pavement. The cyclist rides away and then Lewis Gill approaches Mr Young, turns to face him and and throws a punch with his right fist. My Young falls to the ground and lies there motionless. Lewis Gill just walked away leaving Mr Young lying in the road. Mr Young died the following day. It is very hard to see how Gill had felt threatened and that was rejected by the trial judge. In what way was there any provocation? From the reports we do not know but, even if there was any, it must have been very minimal. The punch was clearly a deliberate (intentional) assault on Mr Young and the blow must have been very forceful.
Sentencing for this form of manslaughter has been before the Court of Appeal many times. I will refer to just two cases though the judgments refer to others: R v Furby  EWCA Crim 3147 and R v Appleby and others  EWCA Crim 2693 - (the latter judgment was discussed in Daily Mail 19th December 2009).
In the Appleby case, Lord Judge CJ said of the Furby decision:
"Without seeking to undermine or diminish the value of Furby as a continuing example of a case of manslaughter at the very lowest level of seriousness, it was decided shortly after legislative changes in the Criminal Justice Act 2003, but, so far as we can see, without their possible impact being addressed." [para 12].
Lord Judge continued [13-14]:
- ....... What is now required, without of course diminishing the attention to be paid to the actions of the defendant and his intentions at the time, and the true level of his culpability, is that specific attention must also be paid to the consequences of his crime. The question which has not yet been addressed, and which now falls to be addressed, is the impact of recent criminal justice legislation.
- Section 143(1) of the Criminal Justice Act 2003 focused significant importance in the sentencing process on the consequences of every offence.
"In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused".This statutory provision was new. It expressly required that both the offender's culpability and the consequences, actual or potential, intended or foreseen, of the crime should be expressly addressed in the sentencing decision. In manslaughter culpability may be relatively low, but the harm caused is always at the highest level.
" ..... crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in schedule 21 of the 2003 Act, but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight."
The objectives of sentencing (Criminal Justice Act 2003 section 142) include punishment of offenders; reduction in crime (including its reduction by deterrence) and protection of the public. The sentence imposed on Lewis Gill appears to be low and the Attorney-General is considering a reference to the Court of Appeal on the basis of undue leniency (Criminal Justice Act 1988 section 36). The case offers a clear example of "single punch manslaughter" and it would be very useful to sentencers if the Court of Appeal were to consider it. The challenge referred to by Sir Henry Brooke might be made somewhat less formidable !