Sunday, 9 August 2020

PC Harper ~ manslaughter ~ sentencing, undue leniency, retrials, young adults

Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays - Lord  Burnett CJ - Clarke, Andrews and Thompson [2018] EWCA Crime 185

On 15 August 2019, three irresponsible young men - Henry Long, Albert Bowers, Jessie Cole - stole a quad bike. It was a planned theft and something they did frequently. The quad bike was towed away from its owner's property. When confronted by the Police they implemented their escape plan.  This required them to disconnect the tow loop from the quad bike and to drive away at speed as soon as all of them were in the car. As they drove away, PC Harper was caught up by the loop which was still attached to the car. He was dragged at high speed over a considerable distance and killed as a result.

The three were charged with murder. A first trial
was abandoned because of problems arising from the coronavirus pandemic. At the second trial, held at the Old Bailey, all three were acquitted of murder.  The jury convicted Bowers and Cole of manslaughter. Long, the leader of the group and driver of the car, had already pleaded guilty to manslaughter at an earlier hearing held in January 2020.

Further details of the facts of this tragic case are set out in the Sentencing Remarks delivered by Mr Justice Edis. It is a case raising numerous questions about sentencing and the handling by the criminal justice system of "young adult" offenders - that is, those aged 18 to under 25. Modern sentencing law recognises that youth and maturity of the offender are factors to be considered even if the offender has passed his or her 18th birthday. Questions arise about the way in which this is to be considered and whether the law makes too much allowance for those in this group who commit the most serious offences.

According to the judge these young men must have known at some stage during their driving that something had got caught in the loop. "They drove on, not knowing or caring what it was they were dragging." The judge added - "The denials of each of the occupants of the car that at no time did they know they were dragging anything are plainly false." However, the judge's remarks also noted that "the jury were not sure that Henry Long knew that ..... the car he was driving was dragging a human body. That was what the prosecution had to prove before anyone could be convicted of murder and they did not succeed in doing so."

Manslaughter carries a maximum sentence of life imprisonment but this is not a mandatory sentence. The judge is able to impose the sentence he deems appropriate to the particular case and the particular offender.

The sentences:

Long - He was 18 at the time of the offence and 19 at time of conviction. Sentenced to an extended determinate sentence of detention for 16 years with an extended licence period of 3 years. He is eligible to be considered for parole after 10 years 8 months and is entitled to release after 16 years. Long was also sentenced to 32 months (concurrent) for conspiracy to steal. (He was disqualified from driving for 3 years with an extended period of 9 years).

Powers and Cole - both were aged 17 at the time of the offence and 18 at time of conviction. They each received determinate sentences of detention in Young Offenders Institution of 13 years. They were disqualified from driving for 2 years with an extended period of 10 years.  Bowers and Cole were also sentenced to 32 months detention (concurrent) for conspiracy to steal. They will serve two-thirds in detention and the remainder released on licence.

A fourth defendant King (aged 22) was sentenced to 2 years imprisonment for conspiracy to steal. He took no actual part in the offence which resulted in PC Harper's death although he did participate in an earlier but abandoned effort to steal the same quad bike.

Aftermath:

PC Harper's widow contacted the Prime Minister, the Home Secretary and Lord Blunkett (a former Labour Home Secretary) asking for a retrial on the murder charge - BBC News 29 July.  She urged them to "right such a despicable wrong for our country."

It also is reported that Mrs Harper is campaigning for the law to be that criminals convicted of killing emergency services workers would spend the rest of their lives in jail - The Guardian 5 August 2020.

The Attorney-General has been asked to refer the sentences to the Court of Appeal on the basis that they are considered to be "unduly lenient" - Police Professional 4 August.

Interestingly, the judge said that cases of manslaughter range greatly in seriousness and that sometimes a "case of manslaughter may be very close to a case of murder in seriousness - that is so here - this is a very serious case of manslaughter." Later in his remarks, the judge said - "A person who kills a police officer having decided quite deliberately to behave in this way commits as serious a case of manslaughter as it is possible to envisage." (My underline).

Sentencing Guidelines:

For many offences the Sentencing Council issues guidelines and such guidance has been issued for unlawful act manslaughter cases.

The judge avoided what he described as "an overly mechanistic application of the factors which are listed" in the guideline. The factors are "indications of the level of culpability that may attach to the offender's conduct." This was "more permissive language that is found in some guidelines and reflects the very great variety of ways in which manslaughter of this kind may be committed."

The judge examined what the sentencing would have been had they been convicted of murder. He did this because it was necessary "to ensure that the gap between the sentencing for murder and manslaughter is wide enough to mark the very significant difference between the two offences, but not wholly disproportionate."  (Had they been convicted of murder the starting points for deciding the minimum terms would have been 30 years for Long and 12 years for Bowers and Cole) - see Criminal Justice Act 2003 Schedule 21).

Undue leniency:

References of sentences considered by the Attorney General to be unduly lenient are possible subject the Criminal Justice Act 1988 sections 35 and 36 - HERE.

Section 36(1) states - If it appears to the Attorney General - (a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and (b) that the case is one to which this Part of this Act applies, he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person. The Court of Appeal may (i) quash any sentence passed on him in the proceeding; and (ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him.

The emphasis in such references is whether the sentence imposed by the trial judge is UNDULY lenient. A recent case ilustrates the process - R v Taiwo [2020] EWCA Crim 902 - where a sentence imposed on a 23 year old man of 4 years 10 months for a "single punch" manslaughter was increased to 7 years 2 months.

A retrial?

Retrials are a possibility in some situations but NOT on the orders of the Prime Minister, Home Secretary or any other Minister:-

a) Under the Criminal Appeal Act 1968 section 7 if the Court of Appeal allows an appeal by the defendant against conviction and it appears to the Court that the interests of justice so require, then a retrial may be ordered.

b) The Criminal Justice Act 2003 Part 10 makes provision for acquittals to be quashed and a retrial ordered in cases of new and compelling evidence.

c) A retrial is also a possibility when the acquittal is "tainted" - see Criminal Procedure and Investigations Act 1996 Part VII.  This possibility may arise where (a) a person has been acquitted of an offence, and (b) a person has been convicted of an administration of justice offence involving interference with or intimidation of a juror or a witness (or potential witness) in any proceedings which led to the acquittal.

Interestingly, in the trial of Long, Bowers and Cole the judge found it necessary to discharge a female juror who appeared to be likely to fail to carry out her oath as a juror properly- Emergency Services News 24 July 2020. The juror was seen by a prison officer smiling at the defendants more than once during the day and as she left she walked by the defendants and said: "Bye boys."

That is a long way from being grounds on which to base the quashing of an acquittal. A pre-requisite is that a person has to be convicted of intimidation of a juror or witness in any proceedings which led to the acquittal.

Mandatory life terms?

It is certainly not uncommon for there to be calls for tougher sentencing and this is particularly the case with sexual offences and other serious violent offences.

Life imprisonment has to be imposed for murder regardless of the details of the case. The minimum term to be served before parole can be considered is set by the trial judge - see Criminal Justice Act 2003 Schedule 21. Minimum terms can be very lengthy. As already noted above, Long would have been subject to a minimum term of 30 years had he been guilty of murder.

The maximum possible sentence for manslaughter is life imprisonment which, in practice, means that the judge is able to impose an appropriate sentence and Edis J imposed what he considered to be appropriate sentences on the killers of PC Harper.  The judge plainly took into account the ages of the defendants and he also noted that they had embarked on a plan to steal the quad bike and they had planned their escape strategy if confronted by the Police. Furthermore, according to the judge, they knew that the car was dragging something but it could not be proved that they knew that PC Harper was caught by the tow loop.

Regarding previous convictions, the judge said that he would not take them into account as an aggravating factor but the evidence given by Long, Bowers and Cole about their way of life was plainly very important.  By the Criminal Justice Act 2003 section 143, a previous conviction is an aggravating factor if the court considers that it can reasonably be so treated having regard, in particular, to - (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.

"Dangerousness" was considered by the judge but, in  the cases of Bowers and Cole, he did not make a finding of dangerousness and decided to deal with the case by means of determinate sentences of detention. "Dangerousness" and the available sentences for dangerous offenders are the subject of the Criminal Justice Act 2003 Part 12 Chapter 5.

Driving disqualification:

The judge imposed driving disqualifications with "extended periods" - see the Criminal Justice and Courts Act 2015 section 30.

For offences committed on or after 13 April 2015, where a court imposes a disqualification in addition to a custodial sentence or a detention and training order, the court must extend the disqualification period by one half of the custodial term imposed.  This is to take into account the period the offender will spend in custody. This avoids a driving ban expiring, or being significantly diminished, during the period the offender is in custody.

Young adults:

On any view the conduct of Long, Bowers and Cole was appalling and merited lengthy periods in custody. One of them (Long) was an adult (over 18) at the time and the other two were almost adults.

Some media reports refer to them as "boys" but, in my view, this terminology appears to minimise the responsibility they should properly carry for their conduct. See, for example, The Sun 7 August where it is reported that a lawyer from the Police Action Centre described them on Twitter as "boys."  They were, as the judge said - "young, unintelligent, but professional criminals."

Having said this, the law recognises a need to make appropriate allowance for younger offenders. For eaxmple, particular provision is made relating to the Detention and Custody of those under age 21 - see Powers of Criminal Courts (Sentencing) Act 2000 Part V Chapter II.

The treatment by the modern criminal law of those who are legally adult (18 and over) but under the age of about 25 is a complicated topic. In Clarke, Andrews and Thompson [2018] EWCA Crim 185 the Lord Chief Justice set out the modern approach. He said -

"Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R v Peters [2005] EWCA Crim 605, [2005] 2 Cr App R(S) 101 is an example of its application: See paras [10]-[12]. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays. Experience of life reflected in scientific research ..... is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday ...."

The judgment in Clarke, Andrews and Thompson is acknowledgment that "young adults" should be treated differently by the law due to their continuing lack of maturity and culpability. The law also perhaps places greater emphasis on rehabilitation as a sentencing aim.

In Entola Balogun [2018] EWCA Crim 2933 the judgment in Clarke, Andrews and Thompson was referred to and the court confirmed that practitioners representing young adults should not be afraid to rely on the Guidelines for Sentencing children and young people, especially so in the case of someone who is barely an adult and who falls to be sentenced for serious offences.

See also the case of Hobbs and DM [2018] EWCA Crim 2018.

There have been calls for a separate sentencing guideline for young adults (18-25) - see Howard League for Penal Reform 2018 -‘Sentencing Young Adults - Making the case for sentencing principles for young adults. The Howard League report is discussed at Youth Justice Legal Centre - A report on sentencing young adults. Further material is in this July 2011 report by Criminal Justice Alliance: Sentencing Young Adults: Getting it Right

How the law handles criminal cases involving young adults is a matter to which much more attention ought to be applied. For example, the Howard League has argued that formal sentencing principles for young adults aged 18 to 25 would assist the courts and improve sentencing outcomes.

Whether the Court of Appeal will examine the sentencing of Long, Bowers and Cole remains to be seen. For now, the matter is with the Attorney General who must decide whether to trigger the undue leniency provisions.

9 August 2020 

Update 1 September:

The Attorney General has referred the sentences of Henry Long, Albert Bowers, Jessie Cole to the Court of Appeal (Criminal Division). The offenders were convicted of the manslaughter of PC Harper and were sentenced at the Old Bailey on 31 July. PC Harper suffered fatal injuries when his ankles got caught in a strap trailing behind a vehicle driven by Henry Long on 15 August 2019.  The Attorney considers the sentences to be unduly lenient.


The three convicted men are applying to the Court of Appeal - ITV News 1 September.

1 comment:

  1. I was struck, when reading Mr Justice Edis's Remarks, by what seems to me to be an inconsistency between his description of the offence as "as serious a case of manslaughter as it is possible to envisage" and the imposition of a sentence which is short of the maximum available.

    It seems to me that the objectives of rehabilitation and the protection of the public might have been better served by the imposition of discretionary life sentences. The Judge would still be able to reflect his views of the respective culpability and circumstances of each individual offender in the setting of the minimum term. Crucially, however, the offender would need to satisfy the Parole Board, at some point after the minimum term, that it was safe to release him. A key element of this, it seems to me, would be that the offender had sufficiently reformed whilst imprisoned as to make it safe to conclude that rehabilitation would continue in the community.

    I accept that this amounts to the imposition of an indeterminate sentence for public protection, and that such sentences are nowadays deprecated on the grounds, amongst others, that they can lead to miscarriages of justice. Clearly, that is a valid criticism, but I would answer it by referring again to Mr Justice Edis's description of these crimes as being "as serious a case... as it is possible to envisage."

    The case is now on the desk of the Attorney-General. It will be interesting to see what she does with it. Both she and the Home Secretary have taken "tough on crime" stances in public. If the A-G decides to refer the sentences under the "unduly lenient" scheme, is she required to give and publish reasons, or is it enough for her to say, in effect, "this smells wrong: better let the CACD take a look"?

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