Sentences in PC Harper case upheld by Court of Appeal

17 December 2020 by

The Attorney General, Suella Braverman MP, appeared for the Crown in this appeal

R v Long, Bowers and Cole [2020] EWCA Crim 1729 (16 December 2020) — judgment here

The Court of Appeal held yesterday morning that the sentences of the three men responsible for the manslaughter of PC Harper in 2019 were neither ‘unduly lenient’ nor ‘manifestly excessive’. The Court rejected applications from both the Defendants and the Attorney General (AG), meaning there will be no substantive change to the manslaughter sentences passed at first instance. The Court also refused to grant permission to two of the co-defendants to appeal against their convictions.

BACKGROUND

The case concerned the killing of PC Andrew Harper which in August 2019. PC Harper was killed as he tried to apprehend the three defendants, all part of a group of thieves in the process of stealing a quad bike. As the defendants made off at speed in a car driven by the first Defendant (Henry Long), PC Harper was caught and dragged for more than a mile behind the car.

Long (18 at the time, now 19) alongside co-defendants Albert Bowers (17 now 18) and Jessie Cole (17 now 18), were jointly charged with conspiracy to steal, murder and manslaughter. In the lead-up to trial, all three pleaded guilty to the conspiracy to steal, and Long pleaded guilty to manslaughter. On 24 July 2020, after a 5-week trial at the Central Criminal Court, all three were acquitted of murder, but Bowers and Cole were found to be guilty of manslaughter.

The outcome means that, whilst the jury could be sure that PC Harper died as a consequence of the unlawful acts of the Defendants, they could not be sure that the Defendants actually intended to kill anyone, or to cause anyone really serious harm. In this instance, it means that the jury will have had at least some reasonable doubt as to whether the Defendants knew that they were dragging PC Harper behind them as they drove away.

On 31 July 2020, Long received an extended determinate sentence of 16 years with an extended licence period of 3 years. Bowers and Cole were sentenced to 13 years detention in a Young Offenders Institution. Concurrent sentences were imposed in respect of the conspiracy to steal (32 months for Long, and 38 months for Bowers and Cole).

THE COURT OF APPEAL

There were three applications before the Court of Appeal:

  1. Bowers and Cole applied for leave to appeal against their convictions of the offence of manslaughter;
  2. The Attorney-General (“AG”) applied for leave to refer the sentences arguing that all three were unduly lenient; and
  3. All three defendants sought leave to appeal their respective sentences.

CONVICTION: BOWERS AND COLE

Bowers and Cole’s applications for leave to appeal against conviction were refused at [44]. In the judgment of the Court of Appeal, handed down by Dame Victoria Sharp, the basis for them was wholly unarguable. The judge had properly left unlawful act manslaughter to the jury on the basis that an agreement to behave in a dangerous way in furtherance of a crime of theft is a dangerous and unlawful act for the purposes of unlawful act manslaughter.

SENTENCE  

The court then turned its attention to the issue of sentence. The AG had argued that the sentences were unduly lenient; it was submitted that Long should have received a life sentence and, in any event, that the custodial sentences of all three applicants were too short. Conversely, Long sought to leave to appeal the finding that he was a ‘dangerous’ offender and the imposition of an extended sentence, and all three defendants argued that their respective sentences were manifestly excessive.

For either set of submissions to succeed, the test is a stringent one. As explained at [64]

Mere disagreement with [first instance] decisions as to the nature and length of the appropriate sentences provides neither a ground for finding the sentencing to have been unduly lenient nor a ground for finding a sentence to have been wrong in principle or manifestly excessive. The essential issue in each of the applications is whether the judge passed a sentence which was outside the range properly open to him in all the circumstances.

The sentencing remarks of Mr Justice Edis (here) at first instance were revisited at [46]-[54] and several passages were directly quoted. The Court then held at [55] that

It is entirely clear from [the passages quoted] that the judge took into account all relevant factors as to the nature and seriousness of the offences and as to the aggravating and mitigating features of the individual cases, and gave particular weight to the fact that the offence of manslaughter was committed against a police officer acting in the execution of his duty.

The Court prefaced its consideration of sentencing by emphasizing at [63] that

No one doubts the seriousness of the offending in this case. No one doubts the importance of the fact that the victim was a police officer engaged in performing his duty in the service of the public. No one doubts the gravity of the harm caused, involving as it did not only the death of PC Harper in dreadful circumstances, but also the anguish suffered by his bereaved family. As the judge rightly said, PC Harper’s family have the profound sympathy of the nation. The issues before this court must however be resolved in accordance with the law.

The Court of Appeal summarised all the circumstances and considered the reasoning of the trial judge and his application of the relevant sentencing guidelines. Considering the range of possible sentences, the Court rejected the AG’s application at [90] after considering at [87] that

there is no basis on which it can be said that the judge could not reasonably conclude that a life sentence was not justified in Long’s case, or that the custodial terms imposed on the offenders were unduly lenient.

Similarly, because the Judge had considered the right factors and followed the relevant guidelines, the Court also rejected Long, Bower and Cole’s applications at [94], holding that

none of the grounds of appeal against the sentences for manslaughter is arguable.

Some minor corrections were made to the sentences for conspiracy to steal [95]-[96] and to the ancillary order disqualifying the Defendants from driving [97]-[101], however these corrections have no affect on the overall length of the sentence.

COMMENTARY

As renowned legal commentator Joshua Rozenberg QC commented on Twitter, “none of this should come as a surprise”, later calling much of the ruling “pretty basic stuff”. The sentencing guidelines suggest a range of proper sentences, and the sentence passed at first instance fell within this range.  As the Court of Appeal commented, the AG’s argument that the sentences of Bowers and Cole were unduly lenient because the judge did not depart from the sentencing guidelines, was “to say the least, an unusual submission” [84].

The decisiveness with which the Court of Appeal agreed with Mr Justice Edis’ sentencing remarks suggests that, controversial though this case has been, any real substance to the argument is political rather than legal. In her initial remarks, the Attorney General rehearsed some of the facts and said that the sentences have caused “widespread public concern” [see 57]. Of course, “widespread public concern” is not part of the test with which the court was concerned. As counsel for Long (Rossano Scamardella QC) argued at the hearing, public concern about a particular case is not, in legal terms, “necessarily an indicator that something has gone wrong, either with a verdict or a sentence.”

Nevertheless, tensions surrounding the case have been high, and the case seemed to have become a personal political priority for the AG. The Secret Barrister was among several commentators “astonished” that AG Suella Braverman, who is not a criminal practitioner, took the highly unusual decision to present this case personally before the Court of Appeal.

Following the judgment, a spokesman for Braverman said she believed the sentences should be increased, but “respects the decision of the Court of Appeal”.

Although the Court’s ruling may mark the end of litigation, the underlying argument continues in political fora. Lissie Harper, the deceased’s widow, has been campaigning for a change to the law. Under ‘Harper’s Law’ those guilty of manslaughter would receive a life sentence, the same sentence as a murderer, where the victim is an emergency worker.

The potential effects of such a change have troubled some commentators. Barrister and legal blogger Mathew Scott wrote

The view of the Law Commission in 2006 was that the English and Welsh law of homicide was a ‘rickety structure … in dire need of reform’. Little has changed since then, and almost all of the Commission’s sensible recommendations have been left to gather dust. Yet bad though the existing law is, there is still scope to make it much worse. Gesture legislation to introduce mandatory life sentences for manslaughter would do just that.

Samuel March is a pupil at 5 Paper Buildings. He tweets at @Sam_Oscar_March.

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