Police, Crime, Sentencing and Courts Bill

Viscount Hailsham Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, it is my pleasure to open the debate on the Report stage of this Bill. I stand to add the proposed new clause, after Clause 2, as printed on the Marshalled List.

This amendment, known as Harper’s law, will impose mandatory life terms on those who are convicted of unlawful act manslaughter, where the victim is an emergency worker who is acting in the exercise of their functions as such a worker. The amendment will apply to adult offenders, and to 16 and 17 year-olds. As the House will see, it contains a judicial discretion for the court to impose an alternative sentence in exceptional circumstances.

It may assist noble Lords if I provide a brief overview of manslaughter—I do not propose to turn this into a lecture—and the manner in which this amendment will work. The amendment applies to those convicted of manslaughter, but the proposed new Sections 258A(4), 274A(4) and 285A(4) of the Sentencing Code are provisions to explicitly exclude those convicted of gross negligence manslaughter, as well as those convicted of manslaughter following a successful partial defence to a charge of murder—for example, manslaughter by reason of diminished responsibility, loss of control or in pursuance of a suicide pact. As a result and by process of statutory elimination, the provisions will apply only to those who have been convicted of manslaughter by an unlawful and dangerous act, more commonly referred to as “unlawful act manslaughter”.

The Government are making this amendment following the death of PC Andrew Harper in August 2019. I am sure the House is familiar with the horrific facts of that case. PC Harper was responding to reports of the attempted theft of a quad bike. He suffered fatal injuries when he became caught in a strap trailing behind a getaway car and was dragged behind it. At their trial in July 2020, PC Harper’s three killers were acquitted of murder but were all convicted of unlawful act manslaughter.

The jury was therefore satisfied that the unlawful and dangerous actions of the defendants, namely the plan to steal the quad bike and then escape apprehension by whatever means possible, including driving dangerously along winding country roads, amounted to manslaughter. The court did not impose life sentences on any of the defendants. Each received sentences of between 13 and 19 years for the manslaughter of PC Harper, sentences that were subsequently upheld by the Court of Appeal. They will therefore all be incarcerated for a significant period. But the Government believe that, where a person is convicted of unlawful act manslaughter, and the person who has been killed is an emergency worker acting as such, that should be punished with life imprisonment.

The court will be able to impose a different sentence where there are exceptional circumstances. As covered in Committee, that term is already used in law and is deliberately undefined in legislation to allow for interpretation and application by the court. This will ensure that the court can apply a different sentence where justified, such as where there are exceptional circumstances relating either to the offence or the offender.

The successful campaign of PC Harper’s widow Lissie Harper and the Police Federation drew this issue to the Government’s attention, but this was not an isolated incident. While, thankfully, emergency workers are not often killed on duty, they are required to put themselves at particular risk when carrying out their duties and protecting the public. As is often said, they run towards the danger when others run away from it. I therefore beg to move Amendment 1.

[Viscount Hailsham (Con)]

I rise to express my grave concerns about this new clause, which I hope will not be enacted, although I am bound to say that I am rather pessimistic about that.

I will begin by saying something about procedure. I regret that this new clause is being brought forward on Report. The formal announcement of it was by way of a press release on 24 November this year. As the Minister has said, the new clause was triggered by the very distressing case of the killing of PC Harper. We need to keep in mind that the relevant trial took place in July 2020, and it came before the Court of Appeal for consideration in December that year. I suggest that it is hard to see why the new clause could not have been introduced in the House of Commons or, if that were not possible, in Committee in this House. In either event, there would have been a greater opportunity for discussion, both inside and outside Parliament.

All of us will have the greatest sympathy for PC Harper’s wife and family. However, we should be very cautious about legislating as a consequence of a single case or even a number of cases, however distressing they may be. I have referred to the trial in 2020 and the decision of the Court of Appeal in December that year. My noble friend referred specifically to them. In both those cases, very serious and detailed consideration was given to the appropriate sentence, and, as my noble friend has said, the Court of Appeal rejected the submission of the Attorney-General that, in the case of the defendant Long—the most culpable of them—the sentence should be increased to a life sentence.

I suggest that anyone who studies the judgments of the courts, together with the guidelines of the Sentencing Council—the relevant ones were published as recently as November 2018—will be satisfied that the existing law makes proper provision for the punishment of offenders convicted of serious offences of manslaughter and gives proper protection to emergency workers.

As your Lordships will know, manslaughter covers a very broad spectrum of culpability, extending from the very serious—the killing of PC Harper is an example of this—to many things that are very much less serious, such as a single blow that fells an individual, who strikes his head on the pavement and dies. In all conscience, that is an act of common assault, although the consequences are dreadful.

In the case of PC Harper, the trial judge stated that, had the defendant Long been a few years older— he was 19 at the time of the trial and 18 at the time of his offence—he would probably have been given a life sentence. So we need to be clear about this. A life sentence is already available for serious cases of manslaughter, where the trial judge, who has heard all the relevant facts, thinks that such a sentence is appropriate. Your Lordships are being asked to approve a mandatory life sentence in circumstances in which the trial judge might otherwise determine that one is not appropriate. I am deeply uncomfortable with that, especially when I consider the broad spectrum of culpability that arises in manslaughter cases.

Consider a police officer who intervenes in a street brawl, in or out of uniform—it might be a plain-clothes officer. The officer is struck by a single blow or trips in the course of a scuffle. He or she falls, hits their head on the pavement and dies. If the deceased person had been a civilian killed in such circumstances, the court would impose a relatively modest determinate sentence, but, in the case of the police officer and subject to the subsection (2) provisos, which I will shortly mention, the court would have to impose a life sentence. I do not believe that that can be right.

I said that I would speak briefly, if your Lordships would allow me, to proposed new subsection (2), which was briefly referred to my noble friend the Minister. Subsection (2) refers to the exceptional circumstances that relate to the offence or the offender and make it just not to impose a life sentence. The question that arises and must be considered is: what does that mean? Does that mean that, if the judge thinks that the offence falls at the lower level of culpability, a modest determinate sentence can properly be imposed? If that is the case, what is the purpose of the new clause? If such a discretion is not available to the trial judge, it is surely inevitable that injustice will happen on occasions.

At that point, we come to a related matter. We are talking here about not “whole life” cases but life-sentence cases in which a trial judge must impose a custodial tariff. Is the trial judge entitled under these provisions to set a modest determinate tariff in order to address a low level of culpability? If that is the case, what is the point of the new clause? If it is not the case and the trial judge may not impose a modest tariff, it is extremely unjust.

I have one final point, and I acknowledge that it is about drafting. Consider the following circumstances, which fall within proposed new subsection (3)—I will not read it out because it is on the Marshalled List and I do not want to detain your Lordships’ House. An off-duty officer in plain clothes, whose identity as a police officer is not apparent, intervenes in a street brawl or seeks to apprehend a fleeing thief. In the scuffle, he or she falls over, hits their head and dies. Is it right that, in those circumstances, such a defendant should automatically face a life sentence, unless the subsection (2) provisos apply?

I am profoundly uncomfortable with this new clause, and I would like to think that it will not pass.

[Baroness Butler-Sloss (CB)]

My Lords, I share the serious concerns of the noble Viscount. Given the degree of pressure that the Government have been under, understandably, after the shocking death of the police officer, they may have strayed too far into imposing upon the judiciary something that is not necessary, in my view. If they remain concerned about the extent to which the Sentencing Council may not have properly reflected the seriousness of an emergency officer being killed, it is perfectly simple to ask it to reconsider this. I suspect that, in the light of PC Harper, it might well do so.

Following what the noble Viscount has just said, I am particularly concerned about the off-duty, plain-clothes police officer, fireman or anybody else who intervenes—very properly, feeling it is his or her duty—and suffers a fatal injury. The situation is as the noble Viscount said: it really does go too far. I understand very well why the Government think it needs to be done, but I wish they would reflect on this, and think again before it goes back to the House of Commons.

--- Later in debate ---

[Lord Wolfson of Tredegar]

My Lords, with genuine respect, the noble Lord is wrong if he thinks that that is what I have said. Let me be clear: if there are exceptional circumstances, the judge is entitled to depart from the sentence. In other words, the judge does not have to impose the life sentence. The judge will then decide what sentence to impose. With the greatest respect, I was right to say that if there are exceptional circumstances, the life sentence does not apply. If there are no exceptional circumstances, the life sentence does apply, and the judge will then set a relevant tariff.

[Viscount Hailsham (Con)]

But does not all of this imply that we are really not serving any purpose by the new clause, partly because of the point made by the noble Lord, Lord Carlile, and also the point conceded very fairly by the Minister to the effect that the trial judge can impose in reality a very low tariff? So the question is, what is the point?

[Lord Wolfson of Tredegar (Con)]

My Lords, I have explained that. There is a difference between being given a life sentence with a 10-year tariff and being given a sentence of 10 years. That is a point that we all accept in the case of murder.

[Viscount Hailsham (Con)]

That is true, too, but the case of murder arises from the original bargain made with Parliament and the country at the time when capital punishment was abolished. That does not apply as an argument to what we are doing now.

[Lord Wolfson of Tredegar (Con)]

My noble friend is absolutely right to say that that is the origin of the life sentence for murder. It was a deal done, if I can put it in those respectful terms, but we have life sentences elsewhere in our legislation as well. The point that I was seeking to answer—and, with great respect, I think I have answered it—was, as I understood it when it was put against me: what is the difference if the trial judge is going to give a tariff of x years, why not just have a sentence of x years? However, there is a difference, as we all recognise, between a life sentence with a tariff of x years and a sentence of x years. We can have a debate—

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

In the last week, as is my wont, I have had discussions with a number of Members of this House on this matter. Any Member of the House knows that my door is always open to them, metaphorically and often literally. All the discussions that I have had on this amendment have been ones that I have reached out to others to have. Nobody has knocked on my door. In those circumstances, I cannot say that we will adjourn. If I am told differently, that will be for others to decide. At the moment, I will ask the House to vote on my amendment.

[Viscount Hailsham (Con)]

My Lords, I hate to intervene on my noble friend but I will formally move that the House be adjourned for one hour.

[Lord Wolfson of Tredegar]

My Lords, I ask the House to vote on my amendment.

Motion

Moved by

[Viscount Hailsham]

That the House do adjourn for one hour.

[Viscount Hailsham]

I beg to move.