“You’d want to see him put to death! You’d want it to be cruel and unusual, which is why it’s probably a good idea that fathers of murder victims don’t have legal rights in these situations – now we’re going back to school!”

Toby Ziegler, The West Wing, Season 4 Episode 6

 

Four weeks after their wedding, Lissie Harper’s husband, Andrew, was taken from her in circumstances so awful that they are almost beyond comprehension. A serving police officer, Pc Harper was on the night of 15 August 2019 responding to reports of theft of a quad bike by a gang of teenagers – 18 year-old Henry Long, 17 year-old Albert Bowers and 17 year-old Jessie Cole. The three thieves were towing the stolen quad bike, using a strap attached to a Seat Toledo that they had bought for the express purpose of going out stealing. When they became aware of the arrival of Pc Harper and his colleague in their police car, the defendants unstrapped the quad bike from their vehicle and attempted to outrace the police. The driver, Long, accelerated away at high speed, encouraged by the others. Pc Harper, who had stepped out of his police vehicle, was caught by the strap loop, which wrapped around his feet and pulled him to the ground. He was knocked unconscious and dragged at “terrifying speeds” for over a mile. The driver, Long, became aware of something caught behind his car in the strap, and swerved violently and deliberately in an attempt to detach it. Eventually he succeeded. Pc Harper sustained catastrophic injuries from which he died within minutes.

The prosecution charged all three with murder. After a trial before a jury, the defendants were acquitted of murder, but Bowers and Cole were convicted of manslaughter. Long had already pleaded guilty to manslaughter at an earlier stage. Each had also admitted conspiracy to steal. On 31 July 2020, Long was sentenced to an extended determinate sentence of 19 years (a 16-year custodial term and a 3-year extended licence), with Bowers and Cole each sentenced to 13 years’ detention. Each will serve two thirds of their respective custodial sentence before release on licence, and, in the case of Long he will have to satisfy the parole board that he no longer poses a risk, else he will serve the full 16 years.

The verdicts and sentence were taken hard by Pc Harper’s family. Lissie Harper told the media that she was “shocked and appalled” at the verdicts, and petitioned the Prime Minister and Home Secretary to “right a despicable wrong” by ordering a retrial (something which they have no power to do). Encouraged by the Police Federation, she condemned the sentences imposed as “insufficient” and “inadequate”, and invited support for her campaign for “Harper’s Law” – a change in the law that would mean that anybody convicted of manslaughter of a police officer spends the rest of their lives in prison.

Today, Harper’s Law has been formally announced by the government. And it is a move which, no doubt, will attract a lot of public support. The Daily Mail’s headline today – “Life in jail for killing police, firefighters, paramedics and nursers: Harper’s Law is a triumph of tougher sentences for campaigning widow after she watched killers who dragged PC husband to his death smirking in the dock” – pithily (if grammatically questionably) captures a sentiment with which many will vigorously nod along. Remorseless criminals who take the lives of police officers should pay by spending their lives behind bars.

But there are serious problems with what is proposed.

Before turning to those, let me make plain: none of what follows is intended as a criticism of Lissie Harper. My blood runs cold when I even try to imagine what she has been put through; to transplant her experience onto my own. If it were my partner, killed days before our honeymoon by smirking, remorseless thugs, I doubt I would be able to maintain Lissie Harper’s repose; to restrain myself to letters and petitions. To return to The West Wing (in this instance Charlie Young, whose mother was murdered as a serving police officer), I wouldn’t want to see the killers executed: I’d want to do it myself.

However, those who make our laws know that this – entirely natural – human response is why we entrust criminal justice to an independent, dispassionate legal process. Justice is not measured solely in terms of how it satisfies the victim. Of course – of course – any criminal justice system worthy of the name must command public confidence, and must strive to deliver outcomes that meet as many of the objectives of criminal justice policy as possible, which of course include satisfaction for the victim – but there is more. The objectives of criminal justice are not singular, and they often conflict. Justice is not solely about inflicting the greatest quotient of pain upon those who hurt us. Justice includes justice for the defendant. Even those who have committed the most abhorrent wrongs, who have inflicted irreparable pain and who appear – or even are – recalcitrant and irredeemable, deserve to be treated fairly, proportionately and humanely. We owe that to them, and we owe it to each other.

Key to all of that is ensuring that, when we deal with people in the criminal courts, we have a fair and safe process for determining what offences, if any, have been committed, and ensuring that they are dealt with only for what they are proved to have done; not what we, whether curious onlookers or flesh and blood of the victim, believe the wrongdoer to have done.

And this is where Harper’s Law runs into immediate difficulties. Because it is a campaign born not of principle, but of a victim’s dissatisfaction with a verdict in a particular case. Lissie Harper believes that her husband’s killers should have been convicted of murder, and sentenced for murder. The jury, independent of all parties involved and in possession of all admissible evidence, could not be so sure, and so – as was their duty – acquitted the defendants of murder, but convicted them of “unlawful act manslaughter”. The crucial difference for sentencing purposes is that murder carries a mandatory life sentence. Irrespective of how old the defendant is, irrespective of any mitigating or extenuating circumstances, the court has no choice at all but to impose a life sentence. A life sentence involves the court setting a “minimum term” for the defendant to serve, at the end of which he must satisfy the Parole Board that his imprisonment is no longer necessary to protect the public. If he can’t, he will remain in custody until he can. If he is released, he remains on ‘life licence’ with conditions, breach of which can result in immediate return to prison. In the case of the murder of serving police officers, the law since 2015 has in fact required judges to impose “whole life orders” – life without parole.

Life imprisonment is serious. Even if the minimum term appears short, it is a mistake to assume – as the tabloids frequently do – that a prisoner will be released at that point. We have more prisoners serving life sentences than any other country in Europe. At the latest count, a quarter of all people in prison serving life sentences are serving beyond their minimum terms.

Manslaughter sentences, in contrast, do not always carry life imprisonment. They can, and sometimes do, but the court is not required to impose it. And to understand why, it’s necessary to look at the legal distinction between murder and manslaughter.

Murder, in England and Wales, requires that a person unlawfully kill another, intending either to kill or to cause really serious harm. The prosecution have to prove those elements so that the jury is sure. If the jury is anything less than sure, they must acquit. This is the principle underpinning our entire mode of criminal justice. In this case, the prosecution case was that the defendants knew that Pc Harper was being dragged behind their car, and that they intended to cause him really serious injury. The defendants denied that they knew that a person was being dragged – and the jury, having heard the evidence, could not be sure that they did. Hence the acquittals for murder.

“Unlawful act manslaughter”, by contrast, occurs when a person kills another as a result of an unlawful act, but without intending to kill or cause really serious harm. As long as it was objectively foreseeable that some harm may have been caused from the unlawful act, that is enough. Even if the defendant did not in fact intend that any harm would be caused at all.

This means that manslaughter covers an enormous range of cases. In all of these, the harm caused is of the utmost seriousness – death has occurred. But a defendant’s culpability varies significantly.

At the top of the scale, you have cases which are only a hair’s breadth away from murder: where a defendant committed a highly dangerous unlawful act, intending to cause serious harm (but just short of really serious harm), or where the unlawful act gave rise to an obvious, high risk of death. This includes cases such as Long, Bowers and Cole – which the sentencing judge acknowledged was “very close to a case of murder“. Exceptionally serious, where the starting point in the Sentencing Guideline is 18 years’ custody, with a range up to 24 years, and in which judges will be considering imposing a life sentence. Indeed, in the case of Long, the sentencing judge made clear that, but for his age, he would have received a life sentence. He also took a starting point of 24 years, before giving due reduction (“credit”) for Long’s guilty plea, as required by law.

At the bottom of the manslaughter scale, you have cases where there was no intention to cause any harm, and no obvious risk of anything more than minor harm – for example, where a gentle push causes somebody to lose their balance, strike their head and sustain a fatal head injury. In cases like that, there is a difficult balancing act for the court in reflecting the serious harm caused, but also the defendant’s relatively limited culpability. Such cases, you may not be surprised to hear, are unlikely to involve considerations of a life sentence.

But that is where Harper’s Law seeks to change things. Where the victim is an emergency worker, it is proposed that a mandatory life sentence be imposed, irrespective of culpability. While the original stated aim of the campaign – whole life orders in such cases – has not come to fruition, the notion of mandatory life sentences for manslaughter for a particular category of victim has. In future, defendants such as Long, Bowers and Coles will receive mandatory life sentences, even if acquitted of murder (although whether the proposed new law will apply to those who, like Bowers and Cole, were youths at the time of the offence, is unclear).

This blurring of the distinction between murder and manslaughter is really troubling. It means that, save in “exceptional circumstances” (as to which, see Joshua Rozenberg’s excellent post here), the careful exercise undertaken by a judge in possession of all the facts, determining whether an individual defendant convicted of manslaughter warrants a life sentence, is substituted for the white hot vengeance of a political slogan. If a drunk youth shoves a police officer and unintentionally causes death, he will be liable to mandatory life imprisonment, whereas – to take an example given by the incisive Matthew Scott – a landlord who asphyxiates his tenants by letting them a flat knowing it contains a dangerous boiler, would not. Is the first really more culpable than the second? Harper’s Law answers in the affirmative. It distorts how the justice system assesses culpability. And this matters. Because even though those affected are those unlikely to attract your sympathy, justice can only be done if, to use language that the Mail understands, the punishment fits the crime. We don’t achieve that by banning the use of measuring instruments.

The suggestion that this will in any way give emergency workers “extra protection” is equally spurious. There is no evidence at all that a mandatory life sentence for unintentional deaths will deter a single would-be killer, for reasons that speak for themselves. This is about vengeance, not deterrence.

Please don’t think this a defence of our current homicide laws – they are long overdue comprehensive reform, and it is to successive governments’ shame that they have ignored the sensible proposals of the Law Commission in favour of a series of cheap, headline-grabbing political tweaks.

Sadly, such has been the order of the day since ministers first spied the opportunity to appropriate Lissie Harper’s campaign. Immediately onto the bandwagon was Home Secretary Priti Patel, who today declared her support for the change in law, stating:

“Those who seek to harm our emergency service workers represent the very worst of humanity.”

Putting aside any questions of glass structures being erected by a person who has boasted about entering politics in order to put her fellow citizens to death and who is currently seeking to introduce legal immunity for people who unlawfully kill refugees, it is depressingly predictable that the Home Secretary has failed to understand the basic premise of the argument: those targeted by this law are expressly those who don’t seek to harm our emergency service workers.

The Attorney General, Suella Braverman, was equally eager to exploit Mrs Harper’s grief. Ms Braverman, a junior barrister with no experience of criminal law, who was appointed to high office for her obedience rather than her legal prowess, ignored the advice of her own experienced criminal lawyers (according to boasts made to the Daily Express by a well-placed, ahem, “friend” of the AG) and attempted to refer the sentences of the three killers to the Court of Appeal as “unduly lenient”. Spotting the paparazzi, she even insisted on presenting the case at the Court of Appeal herself, despite having never conducted a criminal case, and astonishingly briefed the press in advance that, if the judges refused her application, “it will be another example of wet, liberal judges being soft on criminals.” Ignoring this bizarre attempt at judge-nobbling, the Court of Appeal swiftly dispensed with Ms Braverman’s “striking and unusual” [judicial code for “batshit”] arguments and humiliatingly ruled that there was “no basis” to the Attorney General’s application.

Since then, two Justice Secretaries in a row, Robert Buckland and Dominic Raab, have mounted the hobby horse and flogged it to exhaustion. The latter – who in the face of an unprecedented backlog and workforce crisis in the criminal courts is unable to find time to meet the legal professionals working for free to keep the system hanging together –  has been soliciting interviews across the media spectrum to brandish ‘Harper’s Law’ as an example of his self-styled “vindaloo” mode of justice.

Nowhere in government is there a politician with the courage, the fundamental human decency, to offer, compassionately and sensitively, a message that may not be popularly received, but which needs to be delivered, to the public as much as the campaigners. That our sentencing laws cannot be changed because a victim wishes that the accused had been convicted of a different offence. That, however fervently Pc Harper’s loved ones disagreed with the outcome, a fair trial was held, verdicts were faithfully returned and the most senior criminal judges in the land affirmed that the sentences passed were entirely proper and in a accordance with the law – neither too short, nor too long. That we don’t improve our justice system by importing yet further legal and moral incoherence, imposing the gravest sentences in cases where the accused had no intention to cause really serious harm, let alone death. That, as justified as victims undoubtedly are in wishing nothing but the worst upon those who have caused such irreparable damage, justice is not achieved by restricting access to lawyers for those accused of serious crimes. That fury and a desire for undirected vengeance are entirely understandable, entirely human; but not the principled basis on which we should strive to reform our justice system.

Instead, we see ghouls and parasites at every turn, grinning jackals barely able to conceal their gleeful opportunism as they shoehorn their vacuous, tub thumping op-eds alongside those poignant, heartbreaking wedding photographs. As might be said about many other aspects of our criminal justice system, we all – not least victims of crime – deserve so much better.

20 Replies

  1. An excellent narrative that perfectly sums up the position. Of course, I am abhorred and upset by how PC Harper met his horrible death, but, as the article states, it is the facts that must prevail.

  2. R v Harvey [2010] http://www.bailii.org/ew/cases/EWCA/Crim/2010/1317.html is an interesting illustration of manslaughter. A man threw a TV remote control in the general direction of his wife – not something you would expect to result in any noticeable injury. It turned out she had a rare arterial defect and this resulted in her death. She could have died at any moment but because she died as a result of the remote control impact – which would not have killed or even injured anyone else – he was guilty of manslaughter.

    1. Perhaps this comment should be printed out and stuck on the back of all remote controls. It serves as a pertinent warning to those who would use them as missiles.
      What was the sentence given in this case please?

    2. Great analysis.

      Harper’s law is a hellish maelstrom of a singularity that could have only been formed in the black hole collision of the Neutron stars of a grieving widow, the tabloid media and Priti fucking Patel.

      It’s also one of the dangers of a ‘victim-centric’ justice system. As you point out astutely – there is a reason our justice system isn’t “victim’s parents\friends\family get 10 minutes alone in Thunderdome with him”.

      I also genuinely take umbrage with the fact that a victim’s life is inherently more important if they are a police officer \ ambulance worker \ car parking attendant (maybe not so much?) – the courts have always had the leeway to decide between murder\manslaughter\ABH etc based on that old fashioned thing known as ‘the facts’.

      There seems to have been a lot recently of “we can’t get our way, so we are going to change the law \ move the goalposts whatever”.
      What is happening to this country? Are people genuinely getting thicker?

    3. I remember this case specifically as a crazy manslaughter outlier.
      Apparently there was no history of DV or anything either, was just a stupid argument – apparently they had been using cocaine as well if I remember correctly…

      I get so tired trying to explain to people why intent and summed culpability is as important as the consequences of crime.

      Now anyone with a twitter account can start some sort of “change the law” campaign. As SB’s excellent analysis above, who would dare speak up for people that no one happens to like?

    1. It shouldn’t be controversial to call this out for what it is.

      It’s amazing what the perfect storm of a ruthlessly ambitious politician, a tabloid media runaway train and a pretty blonde grieving widow can achieve.

      Criticising this is not criticising Mrs Harper – she’s naturally going to be distraught and angry.
      Giving her exactly what she wants while she is in said altered emotional state is where the problem is – the justice system is not meant to work like this for EXACTLY this reason.

  3. I agree, but would note that the interpretation of GBH as “really serious harm” as opposed to “serious harm” (Smith [1961] AC 290) can be interpreted to mean “serious harm”, with “really” meaning “actual”. The explanation suggests that an intention to cause serious harm isn’t sufficient. Such an intention direct (or oblique as per the virtually certain test of Woollin)
    should in practice be seen as a sufficient mens rea for murder. If as you say, judges are directing that more is required for murder, it would require the jury to perform mental gymnastics working out the subtle difference between serious and really serious. E.g. Is an intention to stab V in the leg insufficient to establish an intention to cause GBH, (even though V dies from blood loss) because it is not as serious as an intention to stab V in the chest? In both cases V dies. Both are serious harm, and neither necessarily establish the more serious intent to kill. ( e.g to the heart),

  4. I thoroughly enjoyed reading this post and agree 100% with what has been said.

    If I were to have been a juror I would definitely agree with the manslaughter verdict.

    Somehow I feel that the sentences meted out seem very hefty for such young boys who (had the police officer not been standing nearby) would possibly only have been found guilty of theft.

    The recklessness of their behaviour in cutting loose the stolen item did not necessarily mean that there was any premeditation upon the outcome of such rash behaviour.

    To put it bluntly they behaved very stupidly, without thinking what they were doing, and it was this acting out of spur of the moment decisions which got them into trouble.

    It is part of the learning curve of growing up that we are faced with situations that we can grow from and through.

    I feel very sad for the victim and for the wife and family of the victim, I also feel sad for the families of the perpetrators. I feel sad that 3 young men will spend so long in prison and have their lives ruined as a result. I feel sad about the criminal justice system that incarceration does not usually equate with rehabilitation. The odds are stacked literally in favour of recidivism.

    Of course Harper’s law may be a good deterrent for those who might otherwise intentionally and wilfully seek the death of emergency workers.

    I cannot imagine that it will act in the same way towards those who unintentionally and accidentally remain the cause of their death.

  5. A very interesting article and one with which I now find myself agreeing wholeheartedly.
    I would be more inclined to agree with a case where anyone employed with a role in upholding the law and was found guilty of breaking it, would automatically have their sentence doubled!!

  6. Excellent article.
    Can I just add the part the press played in reporting the trial in the Harper case. In contrast to the trial of PC Benjamin Monk whereby both the prosecution and defence cases were widely reported and fairly balanced, we were kept in the dark as to why a jury unanimously found the 3 not guilty of murder. It was like a defence didn’t exist.
    The media had trialled, judged, found guilty and hung, drawn and quartered the 3 traveller kids before they’d even set foot in a courtroom.

  7. ‘Key to all of that is ensuring that, when we deal with people in the criminal courts, we have a fair and safe process for determining what offences, if any, have been committed, and ensuring that they are dealt with only for what they are proved to have done; not what we, whether curious onlookers or flesh and blood of the victim, believe the wrongdoer to have done.’
    This is the point that seems to be missing from most people’s thought process.

  8. Thank you for this secret barrister, I am so relieved to find this and grateful for the work you are doing – will be ordering myself a book 🌹

  9. If this is not the appropriate mechanism, then what is? It is critical for the good ordnance of society that emergency personnel (paramedics, doctors, police, fire officers) have protection in the execution of their duties.

  10. Essential and balanced advice to us all, in so many contexts.. My thoughts are with the family of PC Harper, may they find peace.

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