Attorney General’s Frivolous Reference

When a young, brave police officer going the extra mile to protect the public, loses his life pursuing criminals understandably the public is angry and outraged.

The Court of Appeal observed yesterday that no-one doubted the seriousness of the offending in the present case.  No-one doubted the seriousness of the importance of the fact that the victim was a serving police officer performing his duty in the service of the public.

No-one doubted 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.  PC Harper’s family had the profound sympathy of the nation.

The issues before the Court had to be resolved in accordance with the law: Reference by Her Majesty’s Attorney General pursuant to section 36 of the Criminal Justice Act 1988: Between Henry Long, Albert Bowers and Jessie Cole v The Queen [2020] EWCA Crim 1729 Dame Victoria Sharp P, Holroyde LJ, William Davis J.

But the Attorney General’s attempt to increase the sentences of the three accused by the device of a Reference could, at best, be described as a frivolous use of the measure and, at worst, a populist political measure.

In Reynolds [2007] 2 Cr App R (S) 87 Latham LJ observed that the function of section 36 of the 1988 Act was not to provide a general right of appeal to the prosecution:

“It is a means of ensuring by judicious selection of cases, that issues of principle in relation to sentencing can be resolved, and sentences corrected, in cases where public confidence in sentencing could otherwise be undermined.”

As Hughes LJ pointed out in Attorney General’s Reference (No 60 of 2012) [2012 EWCA at [9]:

“The procedure for referring cases under section 36 of the Criminal Justice Act 1988 is designed to deal with cases where judges have fallen into gross error, where errors of principle have been made and unduly lenient sentences have been imposed as a result.”

The Sentencing Council had published definitive guidelines for sentencing in cases of unlawful act manslaughter which came into force in November 2018.  At 125 Sentencing guidelines: duty of the court:

• Every court –
• must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
• must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function

unless the court is satisfied that it would be contrary to the interests of justice to do so.

At the time of the offences Long was 18 whilst Bowers and Cole were 17.  Each was acquitted of murder but either on his own confession or by a verdict of the jury, stood convicted of manslaughter.

The trial judge followed the guideline, placed the case in the highest category of culpability and found aggravating factors which justified significant increases above the starting point for that highest category, before taking into account mitigating factors relating only to the ages and immaturity of the offenders.

The Court remarked that it was, to say the least, an unusual submission by the Attorney General that the judge fell into error by failing to depart from the relevant guideline.

It involved the proposition that in the circumstances of this case, a sentence within the guideline offence range was not within the range properly open to the judge, who was instead required to pass a sentence outside the range.

The judges added: “We think it regrettable that, in advancing that submission, the structure and ambit of the guideline was not addressed.  Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so.”

The Attorney General’s application for leave to refer was refused.

In this case the judge had to sentence three young offenders for manslaughter, not for murder.  The jury had acquitted them on the charge of murder which would have carried a life sentence.

Mere disagreement with the decisions as to the nature and length of the appropriate sentences provided 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 Attorney General’s decision to bring this case before the Court of Appeal was an unfortunate one.  She must have had advice from those close to her that an appeal was hopelessly flawed and would be unsuccessful, but she responded to public clamour.

It would have been better if she had had the courage to explain carefully to PC Harper’s loved ones that the difficulty in this case was that the prosecution had been unable to obtain a conviction for murder.

Accordingly, the judge was bound by the sentencing guidelines bearing in mind, particularly, the offenders’ very young ages.

* See also Article entitled Unlawful Act Manslaughter