It may seem a rather odd headline but it is all too true. The utterly horrific case of the death of PC Andrew Harper in Berkshire has raised, yet again, our ‘laws’ and certainly exposed some of the difficulties and frailties within our current system. It has also caused many members of the public to be totally baffled as to why murder convictions were not upheld but instead the three defendants (accused) were found guilty of the reduced charge of manslaughter (culpable homicide). For those not directly involved with the law (the majority of the public) the term ‘reduced charge’ instantly conjures up an image that somehow the offence has been somehow trivialised and that the matter is not being dealt with as seriously as it should be. But this is an inaccurate and misleading viewpoint and worthy of some analysis and explanation.
With the majority of the country (and doubtless every single police officer) baying for whole life sentences for murder, an examination into the case might be helpful and a rational rather than purely emotional application of the law. Then, it may be that a change to the existing law is required. This case is not as straightforward as it may seem or certainly as the press and social media would have you believe.
At the outset, let me make it abundantly clear that this is a totally abhorrent crime and it is only right that the perpetrators be brought to justice. Having followed and studied this case in some detail I, like most others, was appalled and wanted to see these serial criminals feel the full force of the law. But, like all individuals accused of any crime, the evidence (factual, forensic and circumstantial, if necessary) that is available should determine the charge and then, having presented that evidence in court (and having it robustly challenged by the defence) leave it to a jury to make a finding, based on that evidence and those facts. There is a recognised ‘burden of proof’, which always rests with the prosecution. It is therefore for them to prove the guilt of the accused, rather than for the accused to prove their innocence. If the evidence does not carry enough weight to substantiate a guilty verdict, then one should not be returned. Because we may be revulsed at the actions of others, that revulsion cannot alone simply lead us to say they are guilty. The due process of the law has to take place and we should continue to trust our peers with the verdict. Unless some obvious material facts have been somehow omitted, or of course if further evidence comes to light, we should not find ourselves in a position where we do not like a verdict so we have another trial and keep doing that until the verdict we want is returned. That would be outrageous and totally iniquitous.
As something of a background, it should be noted that there are some important and fundamental differences when defining murder between Scotland and England but one commonality is the issue of ‘intent’. Mens rea, as the criminal law calls it, is required, which, when accompanied by the actus reus, gives rise to a potential criminality and subsequently to a prosecution. The jury, in both jurisdictions, must be satisfied ‘beyond reasonable doubt’, as to the guilt of the accused. That is a high standard. The flipside to that standard is that if a jury think there is reasonable doubt they MUST acquit. Obviously lesser charges may come into play, as is the case here.
The circumstances and graphic detail are not, in my opinion, appropriate for these pages so those who wish to scrutinise the case can do so themselves. Suffice to say that the Police Officers involved, including the deceased officer, were initially responding to a call with regards to an alleged theft of a quad bike.
The accused (known as defendants down south) had brought a car with them to which they had tied a thick piece of rope to the rear in order to tow said quad bike in the event that they successfully stole it. As the Police arrived and in a desperate attempt to flee the scene they drove off. As they did so, PC Harper inadvertently ‘stepped’ into the ‘lasso-type’ area of rope (gruesomely pictured below) which trapped his feet. The car then sped off dragging him for over a mile at a significant speed and resulting in fatal injuries.
Two questions arise immediately – firstly the issue of ‘intent’. Did the accused have any ‘intention to kill’ in the manner in which the Police Officer lost his life or was this an utterly freakish occurrence? Secondly and crucially when driving away, were they aware that ‘something’ was attached to the car and could they have foreseen that this was a human being? The judge, Mr Justice Edis remarked that their claims that they did not know, suspect or realise they were dragging anything were ‘clearly false’. However, that was ultimately a matter for the jury and their determination on this point separates the murder charge from the reduced charge of manslaughter (culpable homicide). Whilst it may seem remarkable to us that there was any doubt that they had ‘something’ attached to the back of their car, if the jury felt any element of ‘reasonable doubt’ existed on this very point, they had no option but to acquit (as regards the principal charge/(s)).
It is therefore of (significant) note that whilst the CPS (Crown Prosecution Service – equivalent to our COPFS) charged the accused with murder, they were acquitted (of that charge) by the jury. They were not satisfied that there was any intention to kill. They were however satisfied that responsibility for the homicide rested with them and that would explain the resultant finding of manslaughter (our culpable homicide). Remember culpable homicide still means ‘blameworthy for the death’. However, the reduced element of the charge means that (a) intention (premeditation if you like) was absent from the minds of the accused and (b) is of enormous significance in relation to sentence.
Even if a similar case arose here in Scotland, there may even have been issues with our concept of ‘wicked recklessness’, especially if there was a lack of foreseeability that a person was attached to their car. As seen in a plethora of seminally important cases (Cawthorne (1968), Scott (2012), Drury (2001), Purcell (2008) and Petto (2012)), the issue of what constitutes ‘wickedly reckless’ behaviour is not as straightforward as it may seem. Is “wicked” simply technical shorthand for three requirements, i.e. that the accused: (1) intended to injure the victim, (2) acted in a manner that might have resulted in death and (3) did not care whether the victim lived or died. The latter was exemplified in Cawthorne and Pistorius. If we were to apply these three elements to the Harper case and we work on the premise that they were trying to escape the Police (rather than ‘deliberately’ inflict injury) then even an attempt to suggest their behaviour was ‘wickedly reckless’ would possibly fail. Again, this would not apply if they were fully aware that a Police Officer was being dragged by their car.
NB – Clearly, if there was any suspicion whatsoever that they knew the Police Officer had become entangled in the rope and nonetheless drove off dragging him with them, then there would be little difficulty at all in proving mens rea for murder. This case was clearly extremely close to such a scenario.
What this case has also highlighted, yet again, is perhaps what many of the public simply do not know. The laws of this country are created by government and applied by the courts. So, if a crime attracts a ‘maximum’ sentence no court can increase it. ( Subject to the occasional utilisation of a ‘power of remit’). In other words, the courts are ostensibly bound by statute.
Perhaps this awful crime may force a rethink by government and an increased ‘minimum’ sentence introduced for any conviction of the homicide of a Police Officer (not just murder) – currently any individual convicted of the murder (of a Police Officer) will serve a minimum term of 30 years – but many are wanting this increased to a whole life order/tariff. But that is a matter for Parliament and nobody else.
The revulsion we show towards this or indeed any other crime should not prevent us from applying the law rationally and objectively. This is important to ensure parity and prevent, inter alia, miscarriages of justice. Of course one would not expect the loved ones of the victim of such a crime to be so objective. Emotion and a sense of deep anger and resentment means that they look subjectively at these cases. However, if Parliament wish to create specific ‘new’ crimes’, then there is already in place a lengthy and robust procedure for this and it should be followed.
This appalling case really demonstrates the necessity to somehow ‘get into the minds’ of an accused. The individuals concerned were sentenced to between 13 and 16 years custody. They will serve up to two-thirds before being considered for parole. They participated in an awful crime. But, can we be certain (without reasonable doubt) that they knowingly and intentionally drove off with a Police Officer caught behind the car? Was there any doubt regarding this point? If so, a charge of murder could not be sustained and manslaughter, however unpalatable for the family of the deceased, was more accurate. Remember the mantra in Criminal Law is ‘if in doubt, give the benefit to the accused’.
It certainly highlights the difficulties encountered daily with the Criminal Law and, understandably, why there appears to be so much public indifference to it. However, rather than wild, emotive statements about how much ‘the law is an ass’ and ‘the lawyers have let us down’ we should remember that it is the government that sets the punishments for the commission of certain crimes and it is therefore them who should be addressed if there is outcry over an outcome or a perceived injustice.