An unusual submission

Suella Braverman fails to persuade judges that three killers received unduly lenient sentences

Suella Braverman QC MP staked her personal reputation on getting higher sentences for three youths convicted of taking part in an appalling manslaughter last year. In July, Henry Long, 19, was sentenced to 16 years while Jessie Cole and Albert Bowers, both 18, were given 13 years for killing a Thames Valley Police traffic officer.

Three weeks later, the attorney general said:

Having personally considered the details of this shocking case, I have decided to refer the sentences of PC Andrew Harper’s killers to the Court of Appeal.

Attacks made against emergency workers will not be tolerated and offenders should be punished with the greatest severity for such heinous crimes.

As I pointed out at the time, the Court of Appeal was unlikely to be very interested in Braverman’s opinions about how severely those who attack emergency workers should be punished:

They are more likely to think that criminals should be punished in accordance with the law.

And, inevitably, hubris has now been followed by nemesis.

Braverman was seeking leave to argue that the sentences — passed by an experienced trial judge — were “unduly lenient”. As she had said in her press release, that meant she thought Mr Justice Edis, who is to join the Court of Appeal himself next month, “made a gross error or imposed a sentence outside the range of reasonable sentences available”. 

Normally, an attorney general would brief a senior criminal specialist to represent her in a case of this complexity. Instead, Braverman decided to appear in person at the Court of Appeal two weeks ago, perhaps thinking this might increase her chances of success.

After telling the court that the sentences had caused “widespread public concern” and then summarising her grounds for arguing that the sentences were too short, Braverman sat down and left it to a senior member of her treasury counsel team to make good her submissions. I’m sure Tom Little QC took the brief in the best traditions of the bar but it can’t have been easy for him.

Judgment was given this morning by Dame Victoria Sharp — who, as president of the Queen’s Bench division, is the second most senior criminal judge in England and Wales — sitting with Lord Justice Holroyde and Mr Justice William Davis.

The judges prefaced their remarks with what they described as a basic but very important point:

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. 

Crucially, the three defendants were convicted of manslaughter rather than murder. That was because the jury were not sure that Long knew, at the relevant time, that he was dragging a human body behind the car that he was driving and in which Bowers and Cole were passengers.

As the Court of Appeal explained:

The judge had to sentence three young offenders for manslaughter, not for murder. Mere disagreement with his 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. 

This is pretty basic stuff.

The court then explained that the Sentencing Council had recently published a definitive guideline for what is known as unlawful act manslaughter. It includes sentences of up to 24 years in custody. But it does not allow for a life sentence — although the guideline does make it clear that at a later stage of the sentencing process the court must consider whether to impose a life sentence having regard to the statutory provisions relating to dangerous offenders.

Long was found to be a dangerous offender. But the Court of Appeal rejected the attorney general’s argument that the risk he posed could be met only by life imprisonment:

The availability of an extended determinate sentence, and the judge’s decision as to the appropriate custodial term, meant that Long would in any event be in custody for over a decade and would thereafter be subject to licence conditions for the remainder of the 16 year custodial term and for a further three years after that. The judge was, unarguably, entitled to conclude that an extended sentence of such length would provide sufficient protection for the public.

The court then dealt with Braverman’s argument that all three sentences were too short:

As to the length of the custodial terms, we note a striking feature of the submissions. When applications are made by the attorney general for leave to refer to this court sentences which are said to be unduly lenient, it is frequently on the basis that the judge fell into error by failing to follow a relevant guideline. In this case, however, the argument advanced by the attorney is that the sentence of Long, and therefore the sentences on Bowers and Cole, were unduly lenient because the judge erred in failing to depart from the relevant guideline. 

That is, to say the least, an unusual submission. It involves 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 that range. We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were 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.

Don’t be deceived by the understated language. As many lawyers pointed out on Twitter this morning, this is as scathing as it gets. “Unusual submission” is code for “monumentally bad point”. This was “coruscating”, others added, “damning”, a “judicial kicking” and “hugely embarrassing”.

So the attorney general was refused leave to refer the sentences to the court as unduly lenient. But nor were they too severe. Long, who had admitted manslaughter (and thus qualified for a 25% discount) was refused permission to appeal against his sentence. Bowers and Cole were refused permission to appeal against conviction. However, to correct unnoticed errors in the law, technical changes were made to their concurrent sentences which have no effect on the overall terms they will serve.

Where does all this leave Braverman now? A spokesman for the attorney general said after the ruling that she believed the sentences should be increased, but “respects the decision of the Court of Appeal”.

That’s very generous of her, given how little respect the Court of Appeal has shown for the decision of the attorney general.

I hope nobody now argues that the courts are being soft on criminals. Judges are allowed much less discretion than they had before parliament introduced sentencing guidelines to ensure fairness and consistency. And although I have always had misgivings about the unduly lenient sentence scheme, I think it serves a useful purpose in a limited number of cases.

But the scheme, like other aspects of the British constitution, relies on the powers that be knowing how to use the powers they have. I have written elsewhere about the problems of finding good lawyers to serve as law officers.

What saddens me most of all about this case is that PC Harper’s family must have been led to believe that the attorney general’s intervention would have some chance of success.

As I wrote in August:

By all means refer sentences to the Court of Appeal if you think they are way out of line. But don’t raise the hopes of the bereaved and then blame the judges when you are unable to deliver.