What could Andy Burnham do to block early release of PC Andrew Harper’s killers?

Andy Burnham is said to be exploring “every option” to block the early release from prison of the killers of PC Andrew Harper under plans to alleviate the prison overcrowding crisis, amid public concern that they could be back on the streets next year. As he faces what is being seen as his first big test since becoming prime minister, what are his options?

Why will Andrew Harper’s killers be eligible for release?

Under the government’s plans to tackle prison overcrowding, via the Sentencing Act, prisoners serving sentences of four years or more for some serious violent or sexual offences will be eligible for release at the halfway point of their term, rather than at two-thirds as had previously been the case. This would apply to Albert Bowers and Jessie Cole, two of Harper’s killers, who were jailed for 13 years in 2020 for manslaughter. Henry Long, the main perpetrator, who was jailed for 16 years, will not be subject to early release.

After a public outcry, Burnham excluded rapists, child sexual abusers and groomers from the early release scheme, which he also put back a month to October, but criminals convicted of manslaughter were not excluded.

The Police, Crime, Sentencing and Courts Act 2022 introduced mandatory life sentences for offenders convicted of the manslaughter of emergency workers on duty but, as is normal, it does not apply retrospectively.

Why did Burnham not exclude people convicted of manslaughter?

The prime minister initially said he wanted to “go further” with exemptions from the prison release scheme but that it was “not possible without the prison system reaching capacity and collapsing”.

There are about 950 people currently in jail for manslaughter. Although not all would be eligible for early release and they would not all be freed simultaneously, every prison space is precious given that official predictions suggest that the prison system will be full by November without early releases.

Has he changed his mind?

Having indicated that more exemptions were not possible because of the need to free up prison space, anger at the possible early release of Bowers and Cole appears to have prompted a rethink. Harper’s mother said it felt like “we’re letting Andrew down again” and the pair’s inclusion within the scheme has also been criticised by police.

However, Burnham’s options are limited, with two possibilities being the main focus of discussion. The first would be to block the early release of all manslaughter prisoners. The second would be to specifically exempt the killers of emergency workers from the scheme.

How feasible are these options?

As indicated above, the problem with preventing the early release of all manslaughter prisoners would be that it brings the risk of jails rapidly running out of capacity again.

Burnham’s official spokesperson ruled out an exemption for “one or two offenders” as the manslaughter of an emergency worker was not a stand-alone offence – so any exemption would have to apply to all. Any attempt to exempt only Bowers and Cole from early release would also run the risk of being overturned if challenged in court.

Could the government face a legal challenge if it does release them?

The Police Federation is said to be contemplating going to court in an attempt to keep Bowers and Cole in prison. Jason Hogg, the chief constable of Thames Valley police, the force in which PC Harper served, said he would consider joining any legal action.

However, whether they were to challenge just the pair’s release or, more broadly, that of manslaughter prisoners, it is difficult to see the courts finding in their favour. For judges to determine that parliament did not have the right to pass the provisions of the Sentencing Act, which set out early release for defined groups of prisoners, seems a long shot.