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Harper’s Law: Are Mandatory Minimum Sentences the Answer?

“Harper’s Law” calls for criminals convicted of killing emergency service workers like police officers, firefighters, and paramedics to be given mandatory life sentences. But is this the right approach or are there alternative solutions?

Surely no decent person can fail to be moved by the tragic circumstances leading to the untimely death of PC Andrew Harper and the brave determined and dignified way in which his wife has conducted herself in the face of such a tragedy. As those convicted have lodged appeals, I do not propose to comment upon their culpability in this blog, but many viewers will have imprinted in their minds the images on the one hand, of the grinning defendants and by contrast the pain and anguish of the late PC Harper’s family. Let none of us forget that he was a man in uniform doing his public duty on behalf of others.

His wife has now met with both Priti Patel and Robert Buckland with a view to a proposed ‘Harper’s law’ whereby if an emergency service worker is killed by somebody who sets out to commit a crime, then there will be a mandatory sentence of life imprisonment. The idea is that defendants will serve a proportionate amount of time in prison. Even though life will not actually mean life there would be a minimum term of imprisonment of 20 years in jail under this proposal. Many will agree that there should be such a law. Some will feel that 20 years in jail is not enough. But perhaps we should just look at who should decide on sentencing. Should it be the legislators who legislate for all cases or the judges who hear the facts of each individual case and can distinguish one from another?

There has been an increasing enthusiasm by legislators to narrow the discretion and power of the judiciary. The stated aim is to create consistency within the judicial system and in particular sentencing in the Crown Courts. I do not argue against consistency, few if any would, but ultimately should not sentencing be left to judges, who are trained and experienced and most importantly can sentence in accordance with the actual case before them on a subjective basis. If they get it wrong, then there is the check and balance of a right to appeal to first the Court of Appeal and then the Supreme Court.

Judges have the assistance of guidelines to help ensure consistency and both counsel for prosecution and counsel for the defence will direct the judge to aggravating or alternatively mitigating features in the case. Often the Judge will have seen the defendant give evidence and been able to ‘weigh up the defendant.’ Our society works on a system of checks and balances honed over centuries and based on the fundamental separation of powers between the legislature, the executive, and the judiciary.

There was a time when the divine right of kings prevailed as the concept for justice. The church wielded power way beyond matters of faith and it was not really until the 18th century when John Locke in England, echoing the thoughts of Montesquieu in France, promoted the benefit of separating powers and by weakening them individually, creating a balance and fairness that was lacking. Here we had already seen Charles I and the battle with Parliament including the debacle immediately after Oliver Cromwell of the Rump Parliament and his brother Richard (not for nothing known as Tumbledown Dick). There are various factors in keeping the balance within our society. Whilst the monarchy wields nothing like the power of Henry VIII in Tudor times, the Queen would still be a rallying point should extreme right or extreme left anarchists seek to seize power in the UK. In theory, she could dissolve Parliament. The government has restraints on it, not merely imposed by the electors but also by a free and vibrant press. I do not suggest that the judiciary should be allowed to roam free. They are confined by the lawmakers providing statutes and statutory instruments under which they operate, but the judiciary does form part, and a very important part, of that balance. To my mind they are increasingly having their wings deliberately clipped by the Ministry of Justice and therefore the government. Continuing to do so upsets the balance upon which our very society is founded.

I have no issue with there being a Harper’s Law. That is not out of sympathy for a man who actually gave his life to protect the public, and by that I mean you and me, but because there seems to be a gap in the law which needs filling. I do have an issue with the mandatory minimum sentences. There are guidelines for judges and quite frankly I trust the judiciary to impose the right sentence so long as the legislators give them the ability so to do. The judges are already subject to appropriate checks and balances. There is no need to further restrict their discretion. To send out the message that the judiciary is not fit for purpose is to open the gate to a rebalancing of power which would not be for the public benefit.

I do not personally know the Harper family but they have my, and I have no doubt, everybody else’s, upmost respect for the dignified way in which they have conducted themselves in the face of such tragedy.

This blog was written by Stephen Fox

DISCLAIMER: Please note that this post sets out the general position under the general law. It should not be acted upon in any specific circumstances without taking specific legal advice as to those circumstances. Also, it should not be relied upon, acted upon or treated as a substitute for specific advice relevant to particular circumstances. If you do require specific advice please contact us for assistance.

The views expressed on the personal views of Stephen Fox who is the Senior Partner of Ralli Solicitors LLP and specialises in Commercial Fraud and Private Serious Crime.