Pitfalls of early release of prisoners

UK Prime Minister Andy Burnham is a populist politician in the same way that Nigel Farage of Reform UK is populist and, although the PM would vigorously deny the comparison, the reality is that populism is a highly infective affliction in democratic politics. Populism is the art of offering simple solutions to complex problems to satisfy the public mood. That is what populists do and that is why we have human rights guarantees to ensure there are red lines populists cannot cross. Take Burnham’s agonising over the public’s outrage over the proposed early release of the two prisoners, Albert Bowers and Jessie Cole, found guilty in 2020 of the manslaughter – unlawfully killing – of Andrew Harper, a police officer in the execution of his duty. They were sentenced to a term of 13 years imprisonment and expected to serve two thirds of their sentence in custody before being released on licence. But a new law whose commencement is due in the Autumn would give them the right to be released after serving half their sentence instead of two thirds. The new law was passed to deal with prison overcrowding that threatens gridlock in the whole criminal justice system. But the public mood became hysterical when it was realised that Bowers and Cole would be released early. Most penal systems have early release built into them because it is deemed essential for prison discipline and good order as well as a way of dealing with prison overcrowding. The early release of prisoners doing time for the unlawful killing – manslaughter – of police officers or other public protection officers, however, raises difficult questions depending on all as the circumstances. So what were the circumstances in the case of Bowers and Cole? At the time of the killing they were 17 years of age and on their own admission used to go out thieving in a Toledo car driven by an older friend, Henry Long, who was just over 18. He was more intelligent and the prime mover in their thieving enterprise on the night PC Harper was killed. He too was found guilty of manslaughter but he was sentenced to 16 years and would not be eligible for early release under the new law. At about 11pm on the evening of August 15, 2019, they stole a quad bike from a house in the country near Reading in Berkshire. They towed it away with a strap attached to the Toledo. Long was driving with Bowers in the front passenger seat and Cole was riding the quad in tow. In the meantime, the owner of the quad telephoned the police and PCs Harper and Shaw who were on patrol in an unmarked police car responded. They approached the Toledo from the opposite direction and both cars stopped as they passed when the police blue flashing lights were turned on to indicate the police officers wanted a word. PC Harper got out to investigate whereupon Cole decided to abandon the quad bike and flee. He unstrapped the quad loose but left the strap attached to the Toledo. He then jumped into the car shouting “drive, drive, drive”, and Long drove off at speed. Tragically for PC Harper he was caught and pulled down by the loop in the strap that had been detached from the quad but was still attached to the Toledo as it drove off at speed. PC Harper fell backwards and was knocked unconscious and dragged for quite a distance. He died of his injuries, though, mercifully, he was unconscious throughout. All three defendants were tried for the murder of PC Harper on the basis that they knew that PC Harper was being dragged by the strap and drove on regardless, but the jury were not persuaded they knew. They found them not guilty of murder but guilty of manslaughter. The position in English criminal law of those who kill whilst engaged in stealing was explained clearly by a criminal judge in summing up to a jury in another similar case as follows. “Stealing is an unlawful act. To escape from stealing is also an unlawful act. If a person, in attempting to escape, embarks upon an unlawful and dangerous act, which is likely to injure, even if only slightly, another person, and that causes the death of that other person, then he would be guilty of manslaughter.” So even though PC Harper was unlucky to have gotten tangled up in the loop of the strap, his death was caused by an unlawful and dangerous state of affairs caused by the defendants – but they did not intend to kill or injure him. The political problem faced by Burnham is that the new 2026 sentencing law that provides for the early release halfway of non-sexual, non-dangerous, long-term prisoners, did not exclude offenders found guilty of the manslaughter of public servants like police officers. The new law has not yet been brought into effect. The plan was to bring it into effect on October 1, 2026, but Burnham paused its commencement to find a way to prevent the release of Bowen and Cole without seeming to target them personally. The state cannot single out individuals as targets of general legislation. It is a political storm in a teacup. All Burnham has to do is bring emergency legislation to amend the law by excluding prisoners who unlawfully kill public servants, including police officers, in circumstances that attract more than say five years imprisonment. One final thing about this case, in 2020 the Conservative attorney-general, another populist politician, Suella Braverman, who has since defected to Reform UK, sought permission to appeal the sentence of 13 years as unduly lenient. The appeal judges including the chief justice would have none of it. They held that the attorney-general’s application to appeal against sentence as unduly lenient was wholly misconceived.