Very late on Thursday 15th August 2019, PC Andrew Harper was killed in what can only be regarded as truly horrific circumstances. Responding initially to reports of the theft of a quadbike was in progress, he attended an address in Sulhamstead, Berkshire. His legs then became entangled in a rope that had been tied to the back of a car and he was dragged for a mile, sustaining catastrophic injuries. It would be simply unthinkable for any of us not to feel utter outrage at the manner in which he lost his life and, of course, the ripple effect that has meant unimaginable grief and pain for his widow, Lissie, his parents, colleagues, and friends.

Almost a year to the day later, I wrote an article on the incident which you can read here – https://thescotslawblog.com/2020/08/04/problems-proving-murder-. To perhaps the surprise of many, it is not a straightforward case. The outcry at the time was based on the sheer revulsion that a serving police officer could have had has life ended in such an appalling and grisly manner. At the very outset, it is important that I state my own repugnance at this crime and my sympathies then, as now, go to PC Harper’s widow and family. Nothing I have written previously, or do so now, detracts from that. But separating emotion from rational examination is also important.

PC Andrew Harper death: Police given extra 24 hours to hold 10 suspects on  suspicion of murder | UK News | Sky News

I have previously suggested, on numerous occasions, that cases such as these must be examined on an objective rather than subjective basis (but not, of course, by the victim’s nearest and dearest). This is important so that emotion, which inevitably will run high following such heinous crimes, is not present when deciding what further/new action, if any, should be taken.

The three accused below (defendants for my non-Scottish readers) were convicted of manslaughter (our culpable homicide) and sentenced to between 13 and 16 years. It was the lengths of the sentences that have undoubtedly triggered the calls for ‘Harper’s Law’, which would only ever be applicable in England and Wales and not here in Scotland, (at least for now).

PC Andrew Harper: Killers sentenced to 42 years in jail for manslaughter of police  officer | UK | News | Express.co.uk

The campaign by the police officer’s widow is not, of course, directed at those who murder an emergency worker. Such a conviction already attracts a mandatory life sentence and (in England I should stress, where the victim is a serving Police Officer carrying out his duties, the starting point for determining any sentence (as set by statute) is ‘life without parole’) therefore there is a distinct possibility that an accused found guilty of such would never be released.

So that is not the rationale here. The aim of this petition (with over 750,000 signatures) is to guarantee that those convicted of the lesser offence (manslaughter / culpable homicide – and it has always been regarded as a lesser offence because, principally of the lack of intent) also receive a mandatory life sentence. Crucially, the main difference is the ‘mental element’ of the accused and clearly that is pivotal. Where ‘homicide’ is the issue, it is surely of great relevance whether it is ‘intentional’ and therefore ‘murder’, or unintentional when , though still ‘blameworthy for the death’, the accused lacked the ‘intent’; the ‘mens rea‘.

Concept of Mens Rea: Meaning and its judicial interpretation

The Attorney General in England felt that the trial judge had issued sentences that were too lenient and referred the cases to the Court of Appeal. However the sentences remained as they were and the appeal to have them increased was unsuccessful.

Cases such as these generate abhorrence across the board and it is easy to see why. As if the incident itself was not gruesome and hideous enough, the grief and anguish of those left behind causes an understandable outpouring of emotion and support from the rest of society and awakens our innate thirst for retributive justice. And of course, I am not writing this from such a personal standpoint and so I readily accept my ‘objectivity’ is easy to convey, compared to, say, Lissie Harper. But a dispassionate voice is, I think, essential at times when many refuse to listen, stomping around in high dudgeon (this is certainly no rebuke aimed at Mrs. Harper – of course not. Rather it is aimed at them and those who seek an eye for an eye without considering the wider picture And even here, with this most dastardly of crimes, there is a ’wider picture’).

Whatever our opinion on the sentences passed, should we really be contemplating such a radical change in the law after a single case, almost (and I apologise if this seems unduly harsh or heartless) irrespective of the circumstances ? The law (both in England and Wales and here in Scotland) has long drawn a distinction between ‘murder’ and ‘culpable homicide (manslaughter)’. Ostensibly, it boils down to intent. The trial judge himself in the Harper case, commented that…

‘ The jury were not sure that (Henry Long) knew that…..the car he was driving was dragging a human body. That is what the prosecution had to prove before anyone could be convicted of murder…and they did not succeed in doing so’.

Firstly, what it looks like is an attempt to say that the required high standard of proof was too high and failed, so we should just make a new law which will make it easier to convict. But that is not how we deal with the law in this country. Secondly, what is sought now is to effectively disregard any element of ‘intention’ and treat the matters as the same. Laws in many jurisdictions already have to interpret ‘lesser’ charges to murder on a daily basis and for a wide variety of issues. Consider the ‘single punch’ theory when an individual dies after being struck by another who had no intention to kill, but death is nonetheless the end result. Is that individual deserving of a sentence comparable to an individual who roams the streets looking for revenge and who shoots a man in the head? Or the loving wife who decides to aid her terminally ill husband – she had the ‘intent’ to kill, but few of us would wish to see her jailed for life. So we now have to envisage that if you ’cause’ the death of an emergency worker (not your average fellow member of society, specifically an ’emergency worker), you’re off to jail with a life sentence..? In the Harper case, let’s imagine that the accused were not aware that there was a ‘human being’ attached to the rope and that what they were doing was merely fleeing the scene. (As the jury did). Are we now happy that, irrespective of that, they should be handed a mandatory life sentence? Thirdly, whilst the job they do is often remarkable and we are all rightly thankful for it, is it right that they should be singled out over the rest of us? Is their killing worse than your average man in the street? My fear is that the hellish case of Andrew Harper is so egregious that we are in danger of allowing our hearts to rule our heads and that makes me very uneasy.

Of course the law is not ideal, or complete. Neither in England and Wales, nor Scotland nor, I suspect anywhere. It never has been nor will it ever be. But this idea of changing laws to appease the (very understandable) grief of an individual simply does not rest easy with me. We have constant examples of ‘gesture politics’ nowadays. Please let’s not develop a culture of gesture legislation as well.

Stay safe everyone.

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