BLOG: ‘One Punch’ Manslaughter – One Size does not fit all

A single blow resulting in death – a result not foreseen, or perhaps even foreseeable, by the perpetrator. Anisha Kiri looks at whether the guidelines are effective in dealing with cases where the level of harm and degree of culpability cannot be reconciled and considers the renewed public interest in this area.

Typically when we hear of an altercation where a single punch is thrown, seldom do we think the outcome could be fatal. However, a number of such cases have taken spotlight in the media for this very reason – the facts being so unique and the consequences so tragic.

A single punch most commonly would be charged as common assault, ABH or GBH depending on the severity of the injury. However where there is death, it would likely be charged as unlawful act manslaughter. Unlawful act manslaughter (otherwise known as constructive manslaughter) is where a death has occurred as a consequence of a criminal act. The criminal act must be one from which a reasonable person would realise some risk of physical harm arises. Whether the offender intended the harm or knew the act was unlawful is irrelevant.

Deaths caused by a single punch tend to occur in one of two ways. The first is that the punch lands at a precise fatal position upon contact. The second is that the force of the punch causes the victim to fall back and critically injure themselves through the impact. Perhaps an individual with specialist knowledge could intentionally execute the former, but this would be a rare scenario. For the latter to take place, it would in most cases be an unanticipated result. However, if there is any intention to kill or do really serious harm, it would be murder. That is not what is at stake in the cases being considered here. Where the outcome is wholly unanticipated—and arguably could not have been anticipated—how can a fair outcome be achieved?

Perspectives are split: there is the family of the victim who will have to make peace with the grave consequences of the perpetrator’s actions. But there is also the perpetrator, who did not intend the outcome and must come to terms with their own actions and suffer the consequences.

The courts have often had to grapple with very difficult cases, such as where a punch was thrown between best friends (R v Eveleigh [2016] – the victim’s own family asked for the perpetrator to receive a suspended sentence, but he was sentenced to 28 months’ custody, discussed here) or arising from an altercation after a night out (R v Dunne [2011] – sentenced to 30 months’ custody, discussed here). Both demonstrate the highly varying levels of culpability in cases of this kind.

Prior to the Sentencing Council’s Guidelines

When one punch assault cases first reached the courts in the 1990’s, a total of 19 cases were referred to the Court of Appeal – testament to the uncertainty arising out of the sentencing exercise at the time.

In 2005, some guidance arose out of the case of R v Furby [2005] EWCA Crim 3147 which suggested that at the top end of these types of cases, “an appropriate sentence can rise as high as four years”, although, notably the maximum punishment for manslaughter is a discretionary life sentence.

It is notable that section 20 GBH carries a maximum sentence of five years, which may make this decision seem illogical where a death has occurred. However, this is an offence where the consequences were not envisioned, particularly to arise out of one single punch. LCJ Lane stated in Furby:

 ‘The circumstances in which the punch was delivered would have a significant effect on the length of sentence, but where the consequences of the punch were not reasonably foreseeable, care must be taken to see that the effect was not disproportionate’.

Section 20 GBH has the scope to sentence for life changing injuries from perpetrators who may be wilful or reckless. The worst of section 20 could be a sustained attack which is much more likely to cause more damage than a single punch.

In 2014, in the case of R v Gill [2014] EWCA Crim 956, there was a public outcry due to the leniency in the sentencing of a one punch manslaughter. Ex-Attorney General, Dominic Grieve KC, referred the case to the Court of Appeal, arguing that a four year sentence for the most serious offences (as suggested in Furby) did not accurately reflect the gravity of harm caused. He also called for the public to take action and add pressure on Parliament to revisit the guidelines.

The court held that the sentence imposed was in line with authorities. The leading judgement was given by LJ Treacy who stated that:

‘The sentencing process cannot be driven only by the harm done, appalling as it is. The other side of the equation is the level of culpability, and inherent in the charge of manslaughter is the recognition that the offender did not intend to cause really serious harm’.

LJ Treacy went on to say that there should be public interest in reviewing the sentencing guidelines and this would be a matter for the Sentencing Council to address, not the judiciary.

Soon after, in 2017, the Lord Chancellor at the time, Chris Grayling, announced plans to respond to public requests and review the sentencing guidelines. The Sentencing Council subsequently launched a consultation into manslaughter offences across the board. They stated that their aim was to ensure that ‘all sentences are proportionate to the offence committed and in relation to other offences’.

Sentencing Council Guidelines

The Sentencing Council guidelines came into force in November 2018. They presented a more nuanced approach in relation to unlawful act manslaughter. There are four levels of culpability. Predominantly, a one punch assault would likely fall within medium culpability (“where there was an intention on part of the offender to cause harm (or reckless as to harm caused) and it falls between higher and lower culpability”). Medium culpability has a starting point of 6 years’ custody with a range of 3 to 9 years – a significant increase on the guidance issued in Furby.

There is, however, leeway to consider placing the offence in lower culpability if, for example, the death was caused by an unlawful act which was in self-defence (where not amounting to a defence). This has a starting point of 2 years. By the same token, if the punch is considered to be closer to an assault under GBH, the higher culpability category has a starting point of 12 years’ custody.

It is clear that this type of offence requires considerable discretion and a full assessment of facts. A ‘one size fits all’ approach is too restrictive and these new guidelines provided much needed flexibility, demonstrated by the Sentencing Council determining a range of 1 to 24 years’ custody as appropriate for unlawful act manslaughter.

Current Public Interest

Dehanna Davis MP for Bishop Auckland launched the All-Party Parliamentary Group for One-Punch Assaults in February 2021. Having been personally affected by the offence through the loss of her father in 2007, she believes that there is a sense of burning injustice for the family of the victims due to difficulty in bringing these charges to court and securing a conviction and the lack of consistency in sentencing. The aim of the APPG is to kickstart an inquiry into this type of offence and undergo an evidence gathering exercise at the initial stage. It will provide an opportunity to speak to families of victims, perpetrators, police officers and members of the criminal justice system and to explore proposals to put forward to the Ministry of Justice in relation to sentencing and victim support.

Conclusion

This offence is unique in that a convicted offender will be punished for consequences which were not within their contemplation. Safe to say, the offender is likely to suffer living with the unintended consequences of their actions, which is the fundamental piece of mitigation in these cases. It will be interesting to see the proposals which will be put forward by the newly formed APPG and the balancing act they will have to undergo in doing so.

Anisha Kiri is a working pupil at Carmelite Chambers, currently under the supervision of Richard Furlong. She completed her pupillage with the Crown Prosecution Service. Anisha is a Kalisher Trust Scholar and undertook a sponsored internship with the Death Penalty Project.