What can be done to appeal an unjust acquittal?

It was reported this morning that Lissie Harper, the widow of Pc Andrew Harper, has written to the Prime Minister asking for a retrial of her husband’s killers, who at their trial last week were acquitted of murder and convicted of manslaughter. There is also a petition, signed by over 200,000 people, seeking a similar remedy.

I was not present for the evidence at the trial and so cannot offer any sort of valid opinion on the verdicts, but to try to help put the legal issues into context, below is a short thread looking at what the law offers in situations like this.

“Life means life for child killers” – the truth behind the headlines

There used to be a time, once Chris Grayling had hung up his butcher’s apron at the Ministry of Justice and Theresa May ushered in a quieter, more respectful justice strategy of wanton neglect, that I wrote about something other than Boris Johnson. Unfortunately, the Prime Minister keeps booting the justice football around the pitch with the swagger and fervour he usually reserves for tackling small children, so I feel that the decision is being taken largely out of my hands.

Today, in advance of tonight’s first leadership debate, a raft of Tuff On Crime initiatives have been peppered across the bulletins. We woke up to whole life sentences for child killers, and are ushering in twilight with a guarantee of immediate arrest, charge and court appearance for those carrying knives. Short, snappy policy snackettes that have the advantage of electoral delectability and tabloid acclaim, and only the minor drawback of being entirely pointless and/or unworkable.

As with so many recent announcements on criminal justice, there is a risk that fact-checking the substance only serves to amplify unreliable headlines, but it is worth looking closer at exactly what this “life really will mean life” for “child killers” policy means.

What is the headline policy?

The appeal is obvious. Monsters who murder children should be put away for a very long time indeed. As Justice Secretary Robert Buckland says today, writing in The Sun:

“Any adult who commits the crime of killing a child should spend the rest of his or her life behind bars. It is as simple as that.”

But is it?

Before considering what the Conservatives are actually proposing, let’s look firstly at how the law currently works.


What is murder?

The first point to note is that despite the false claim by the Conservative spin machine that the proposed policy targets “child killers”, it doesn’t. It targets child murderers. There are, unpleasant as it undoubtedly is to dwell on, many ways in which people can be unlawfully killed. Unlawful act manslaughter, gross negligence manslaughter, corporate manslaughter, causing death by dangerous or careless driving, infanticide, causing or allowing a child or vulnerable adult to die, and murder. These are all discrete legal concepts.

Murder is the most serious. Murder, in law, is where a person unlawfully (i.e. not in self-defence or for any other lawful purpose) kills another person, intending either to kill them or to cause grievous bodily harm (really serious harm, is how it’s explained to juries). That may surprise you. You can be convicted of murder even if you didn’t intend to kill someone.

It follows, in case the point needs making, that, while all murders are serious, some are more serious than others. A distraught mother struggling with severe depression who shakes her child intending to cause really serious harm and unintentionally causes death is in a different category to a predatory paedophile who abducts, tortures and intentionally kills a toddler. Likewise a man who acts in genuine self-defence when attacked but goes overboard and, using unreasonable force, unintentionally kills a burglar is to be distinguished from a gangster who guns down a rival drug dealer. Forgive me labouring the point, but when politicians demand blanket “whole life” sentences for all people convicted of certain broad categories of murder, it is necessary to highlight the obvious injustice that would follow.

And this truism is reflected in how murder is currently sentenced.


What is the sentence for murder?

While all offences of murder carry a mandatory life sentence, what a life sentence means can vary. This is because a court has to firstly identify a “minimum term”, which is the minimum period that the defendant will spend in prison before becoming eligible for parole. If a person is deemed safe for release by the Parole Board (the test being whether the Board is satisfied that imprisonment is no longer necessary for the protection of the public), they will be released on “life licence”, with conditions. If at any time it is considered that they are a risk to the public, they can be recalled to prison.

How is the minimum term calculated? Judges must have regard to principles set out in Schedule 21 of the Criminal Justice Act 2003. This provides starting points, and the judge can then move up or down from the starting point to reflect further aggravating or mitigating features.

It’s worth a brief look at the different categories.


Whole life orders

We can see that if the court considers that the seriousness of the offence is exceptionally high,and the offender was aged 21 or over, the appropriate starting point is a whole life order – in other words, no prospect of release. There is then a non-exhaustive list of examples of cases that would normally fall within this category, including, multiple sadistic or sexually motivated murders, terrorism, murder of a serving police or prison officer, and, significantly for our purposes, the murder of a child if involving abduction or sexual or sadistic motivation.

30 year starting point

If a defendant is aged 18 or over and the seriousness is not exceptionally high, it may fall into the next bracket down, which provides for a 30 year starting point:

25 year starting point

This category covers cases where the offender took a knife or other weapon (not a firearm – this goes into the 30-year bracket) to the scene of the murder and used it.

15 year starting point

For all murders that do not fall within the other categories, the starting point is 15 years. Unless the defendant is under 18, in which case the starting point is 12 years.

The court then considers the aggravating or mitigating factors which may result in the starting point moving up or down. Critically, the legislation allows for a “minimum term of any length (whatever the starting point), or in the making of a whole life order”  – in other words, even if a murder is not specifically included as an example of a whole life order, the judge still has a discretion if she thinks the seriousness is exceptionally high.

So that, put crudely, is the existing framework. What does the Conservative Party want to do?


What does the Conservative Party want to do?

Notwithstanding Robert Buckland’s boast to The Sun above, or his widely reported assertion that:

“any murderer who denies a young, innocent child the right to life surrenders their own right to liberty. They do so permanently, and they do so without exception.”

the truth is that there are a number of exceptions to this new policy, as admitted in the press release. For one, as we have already seen, it applies only to crimes of murder, not to all “child killers”. Many homicide offences which capture public attention do not in fact involve murder, and will not be affected. Secondly, whole life orders will still only be available for offenders aged 21 and over. Thirdly, although Schedule 21 defines a child as a person under 18, this new policy would be more restrictive, applying only to children under 16. Fourthly, only murders which are “premeditated” are caught by the policy. Fifthly, the press release concludes by stating that “the sentencing decision will continue to rest with the judge”. At its height, this policy appears to introduce a presumption that qualifying cases will be met by a whole life order, but this is by no means the automatic, life-means-life that has been sold to the tabloids.

On this final point, it appears that the government has majestically failed to understand how the current system works, as the press release claims, falsely, that:

“The current rules require the murder to be of multiple children, or to be sexually or sadistically motivated, to attract a Whole Life Order, which is too restrictive.”

As we have seen, this is not what Schedule 21 says at all. It in fact expressly states the opposite – just because a type of murder is not listed in the examples of appropriate “whole life” cases does not stop a judge imposing a whole life order if she thinks the seriousness is exceptionally high. So the worst cases of the murder of children, say where an adult defendant commits a premeditated murder of a very young child, are already eligible for whole life orders.

In summary therefore, the Conservative Party either doesn’t understand (or is lying about) the law, and is pushing a policy to give judges a discretion to impose a sentence they can already impose.


How many cases will actually be affected?

Perhaps the most important question that has still not been answered by the government is how many cases this policy will actually affect.

The Office of National Statistics has been quoted in news reports as calculating a figure of 67 relevant cases involving the killing of children in 2018, but closer inspection suggests the true figure is much, much smaller. This figure of 67 includes offences of manslaughter and infanticide, not just murder. It includes the terrorist attack in Manchester. It also appears to includes child-on-child killings, which are regrettably common in inner-city inter-gang warfare. There is no apparent way of ascertaining how many of these 67 were murders, how many involved defendants over 21, and how many were premeditated. Nor can the government tell us how many of the cases which did involve the premeditated murder of children by adults in fact resulted in a whole life order anyway, and how many resulted in a minimum term which was unacceptably low.

The actual answer may well be in single figures, if not zero.

Why was this crucial evidence hidden from the jury?

Today is for obvious reasons a dark day, and I don’t wish to dim the light further by dwelling unnecessarily on tragedy. But, while it’s still doing the rounds in news cycles, just a brief word, if I may, on the “revelations” that have been published in the wake of the conviction of Clayton Williams for the manslaughter of Pc Dave Phillips yesterday.


Clayton Williams

The basic facts are well rehearsed – in the course of a police chase, Williams drove a stolen vehicle towards Pc Phillips, causing his death. Williams, denying murder, maintained that he had not seen the officer, and had not intended to cause serious harm or death (the legal test for murder). After Williams was acquitted by the jury of murder, the jurors seemingly not satisfied that Williams drove deliberately at the officer, newspapers have reported that Williams’ co-accused, Philip Stuart, who was in the stolen car at the time, told police officers when he was interviewed that Williams had said “Watch this” before driving into Pc Philips. The jury were not told about this during the trial.

Why? Is this not critical evidence of Williams’ intent? What went wrong?

In short, nothing. It’s simply because, in a trial of multiple defendants – let’s call them A and B – the law does not allow for statements made outside a courtroom by one co-defendant (B) to be admitted in evidence against the other (A). In law it amounts to hearsay, as B’s statement was not evidence given in court, and A has not had the opportunity to challenge B on its accuracy. Where A and B are both on trial, and where B repeats in his evidence on oath what he said to the police in his interview (e.g. “A drove at the officer and said “watch this””), then it becomes evidence and can be used against A. But where, as in this case, B gives the police an account, and then pleads guilty, he is not a party at trial and so what he said to the police in his interview cannot be used against A. Indeed, to avoid prejudice to A, the jury will not even hear about B’s interview.

If the prosecution wanted to put before the jury what B told police in his interview, they would need to call B as a prosecution witness to get him to confirm his account on oath, and this is rarely attractive when B has pleaded guilty to a serious offence. Exhorting a jury to believe the good and truthful prosecution scuzzbag over the bad and lying defendant scuzzbag is often a fool’s errand.

And so, information which to the average reader appears obviously important to a jury’s understanding quite often doesn’t make its way into the evidence. This is why, when there are two co-defendants and B pleads guilty, the prosecution case against the remaining one (A) can often become significantly weaker, as the prosecuting barrister can’t make capital out of cross-examining A on all the glorious inconsistencies between A and B’s accounts to the police.

So now you know. No conspiracy, just the law in action, folks.


UPDATE: So important is the comment below, from someone with far greater knowledge of the case, that it is worth reproducing in full here:

“Agree of course but what you don’t know, and how could you, is the full picture of what the Co-Defendant actually said. The reporting is, of course, woefully ill-informed (understandably – but little effort made to check accuracy or completeness). Yes the co-defendant stated that CW said “watch this” but it is taken entirely out of the rest of what the Co-D said in about 100 pages of interviews. That was all to the effect that CW was going over the central reservation to avoid the stop-stick, and that the “watch this” related to the manouevre to go round the obstacle. The Co-D repeated, again and again that there was no time to react to the officer suddenly moving back into the path of the car that was describing an arc around the stop-stick and officer. The Co-D stated more than once that the officer, unfortunately not wearing a hi-vis vest, “appeared out of nowhere”. The reporting has mislead all the multitudes who have “followed” this tragic case. The press have reported that CW “bragged” that he had killed a “bizzie” – there was no “bragging involved” – he was being wrestled to the ground by (possibly armed) officers and was explaining to youths watching what he was being arrested for. The conduct of this case from day 1, when the CC of Merseyside stated! stated! that it was “deliberate” and “murder”, through the reportage and primacy given to the understandable grief of those who knew the officer over the just and fair trial of CW, has been very depressing to behold! So yes, I agree (as ever) with your blog, but even then it only scratches the surface of the misleading nature of the reporting – which rather proves your point! So thank you for highlighting this issue.”