Harper’s Law: A grim tale of political exploitation and incoherent lawmaking | thesecretbarrister | 24 Nov 2021
“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.
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.
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.
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.