Harper’s law

New mandatory sentences promised — except they won’t be

Despite taking the populist approach of naming proposed legislation after a deceased police hero, the government is to be commended for explaining its plans for new “mandatory” sentences on the government website rather than just giving them to a single newspaper. But that was inevitable given that a late amendment to the Police, Crime, Sentencing and Courts Bill is apparently in the offing.

This is what the government says:

The move extends mandatory life sentences to anyone who commits the manslaughter of an emergency worker on duty — including police, prison officers, firefighters and paramedics — while carrying out another crime unless there are truly exceptional circumstances.

And this is the government’s curiously tautological explanation of that get-out clause:

Judges will have the option to impose a different sentence in exceptional circumstances if there are exceptional circumstances which relate to the offender or the offence which would make it unjust to apply the minimum sentence.

So life sentences won’t be “mandatory” for manslaughter after all.

What difference will the new law make? As the government says,

The courts must already impose life sentences for murder and the starting point for the murder of a police officer or prison officer acting in the course of their duties for offences on or after 13 April 2015 is a whole life order.

The Sentencing Act 2020 adds the qualifier “normally” — but it’s true that a murderer can expect a whole life order in these circumstances. A whole life order is exceptionally rare and means that the offender is unlikely ever to be released.

The youths who killed PC Andrew Harper in 2019 were, however, convicted of manslaughter and correctly sentenced1, contrary to the personal opinion of the current attorney general. That was because the jury were not sure that Henry Long knew, at the relevant time, that he was dragging a human body behind the car that he was driving and in which Albert Bowers and Jessie Cole were passengers.

And, as the government acknowledges, the maximum sentence for manslaughter is already life imprisonment. Unlike the sentence for murder, though, it’s not mandatory.

The proposed change does not mean that those convicted of manslaughter in England and Wales after killing an emergency worker will definitely be sentenced to life imprisonment. As the government says,

The changes will mean that those who kill an emergency worker while committing an offence will face a mandatory life sentence (my emphasis).

Still less does the government say that offenders convicted of manslaughter after killing an emergency worker will receive a whole life order.

There is nothing in the current sentencing guidelines for manslaughter to suggest that an offender should receive a whole life order. We must wait to see whether that changes significantly. But I doubt that it will: the distinction between murder and manslaughter is, for better or worse, fundamental to our sentencing law.

Putting it simply, those convicted of manslaughter after killing an emergency worker may or may not be sentenced to life imprisonment in future. But that does not mean they will spend the rest of their lives behind bars.

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1

Long was given a 19-year extended determinate sentence. This is composed of 16 years in custody (unless his release on licence is ordered by the Parole Board at the two-thirds point) and an additional three years on extended licence. He would be liable to be recalled to custody at any point when he is on probation if he were to reoffend or breach his licence conditions.