PC Andrew Harper: Why tough cases can make for very bad law

The killing of PC Andrew Harper, a 28 year old serving police officer, after he was dragged over a mile by a gang of thieves in a getaway car last year has profoundly affected the public mood on the justice process. Most notable are the sentencing proposals arising as a result, spearheaded by PC Harper’s bereaved widow and his devastated family.

In this homicide case, three defendants inside the car were all either convicted or pleaded guilty to unlawful act manslaughter. The unlawful act was theft. All three were acquitted of murder. The basis for the acquittal was that the jury were not persuaded that any of the defendants intended to cause PC Harper death or serious harm. Factually, it was agreed all three men were engaged in stealing a quad bike and drove off at speed when police arrived. But it seems the jury could not be sure that any of three realised that PC Harper had accidentally become lassoed to their vehicle by his ankles, and was being dragged behind them. The death of PC Harper would have been horrific and every sympathy must be extended to his family, friends and colleagues.

The three defendants were sentenced to unlawful act manslaughter as follows:

The driver Henry Long received 16 years' imprisonment. This had been reduced by one quarter down from 21 years, 4 months because Mr Long had admitted unlawful act manslaughter long before trial. Of those 16 years, he must serve two thirds in prison, i.e. 10 years and 8 months.

The two passengers Albert Bowers and Jessie Cole were each sentenced to 13 years. Both had denied unlawful act manslaughter and so there was no sentence discount. Of the 13 years, they must serve 8 years, 8 months in prison.

PC Harper’s widow Lissie Harper denounced the verdicts as a miscarriage of justice, and launched an online petition describing it as such. By 10 August, this petition has gained almost 400,000 signatures.

The Attorney General Suella Braverman, who until 2015 was a barrister specialising in planning law, is currently reviewing the sentencing decisions. She has the power to refer the case to the Court of Appeal on the basis that the sentencing was unduly lenient.

Last week, Mrs Harper has also launched a campaign proposing that any person who commits a crime resulting in the death of an emergency worker should be sentenced to life imprisonment. This idea has achieved the support of the Police Federation Chairman, John Apter.

Of course, the idea sounds superficially attractive.  However, take away the deliberate nature of the criminal act, and it becomes very draconian. To take one example, it would include a case of causing death by careless driving where the person killed happens to be an emergency worker - even where there was no intention to cause harm to anyone at all. This offence, s2B Road Traffic Act 1988 might involve a brief lapse in attention whilst driving. If Mrs Harper’s reform were passed, such an offence would lead to an automatic life sentence. Currently the maximum sentence allowed by the statue is only five years and it is rare that such a sentence, even after trial, is above three years.  Though immense sympathy must be with PC Harper’s bereaved family, their proposal clearly might lead to unfairness in cases where there is no intention to kill or cause harm. The very principle of automatic sentences also ignores the personal factors of the defendant such as age, learning difficulties, mental health problems, influence from others, and so on.

But it seems the bandwagon has now been set rolling and so, this week, the government proposed a far more wide-ranging reform. The Justice Secretary Robert Buckland is mulling the idea that credit for a guilty plea ought to be removed altogether where the Prosecution evidence is ‘overwhelming’. In an orchestrated briefing, a ‘source close to the Justice Secretary' told the Telegraph:-

“If you get caught red-handed killing someone, say on camera, should you really get a third off for pleading guilty?... The (credit) rule is designed to help victims so they don’t go through the stress of giving evidence. What it is not supposed to be is for criminals to exploit the system by seeing they are bang to rights’ and then game the system for their own benefit”

Ending credit for pleading guilty is not government policy yet, but it is clear that ‘red meat’ is now being thrown out to gauge public opinion. It should be incumbent on every sensible criminal lawyer to explain the many problems with abandoning sentence discounts. The three most obvious problems are as follows:-

1. Who decides whether there was ‘overwhelming evidence’? It is not as simple as being ‘caught in the act’ on CCTV. There are also mental elements to almost all serious offences (e.g. an intention to make something happen). Remember, no defence case is ever advanced because the defendant pleads guilty. Are we really to have an argument that any and all potential defence cases would have been hopeless, thus the sentencing judge must hypothesise about the prospects of legal and factual arguments that were never pleaded?
2. Why is strong prosecution evidence deemed incompatible with genuine remorse? Why is a guilty person admitting their guilt deemed to be ‘gaming the system’? One obvious problem here is the confession paradox, e.g. a lady breaking down and saying “I am so sorry officer, but I have poisoned my husband”. Such a confession might demonstrate genuine remorse. But it will also massively strengthen the Prosecution case. Thus, her confession removes any credit for later pleading guilty in court. However, had she not offered that tearful confession but then later pleaded guilty in court, she might well qualify for full credit because the case against her was less strong. Even without a confession, this principle also creates an upside-down scenario where the more sophisticated planner who leaves precious few clues but pleads guilty will receive full credit, but the bungling criminal who leaves his mobile phone at the scene will get none.
3. When advised on the lack of credit, most defendants facing strong evidence would simply plead ‘not guilty’ because there is nothing to lose by having a trial. Overall, the result will be far more trials in serious lengthy cases, with far more victims put through the trauma of giving evidence - not to mention more delay, more expense, more jury service, and more prison places needed to enforce those longer sentences.  It may result in less convictions.

Robert Buckland has been Justice Secretary for eight months. He is a former criminal barrister who in 2011 was found guilty by the Bar Standards Board of professional misconduct. Presumably, in those proceedings, Mr Buckland would have rightly expected credit from the Panel for an early admission of guilt – despite the fact that the evidence against him sounded overwhelming.

PC Harper’s death was a cruel tragedy that touched the hearts of millions. But each criminal case is as unique as each individual’s life. It follows that we ought to be very careful about any legal change inspired by just one case. Unfortunately, the aftermath of PC Harper’s death shows us (yet again) that tragic cases can inspire very poor law reform.

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