Long & Ors v R.

A conspiracy to steal may constitute the unlawful and dangerous act required for unlawful act manslaughter where its agreed terms include a dangerous escape and a sober and reasonable person with the participants’ knowledge would recognise a risk of some physical harm. The test does not require the serious risk of death applicable to gross negligence manslaughter.

In an unduly lenient sentence reference, the question is whether the sentence fell outside the range reasonably open to the sentencing judge. A dangerous young offender need not receive life imprisonment where maturation and a lengthy extended sentence can sufficiently protect the public.

Long, Bowers and Cole stole a quad bike and fled from police in a car. During the escape, a strap trailing from the car caught PC Andrew Harper, who was fatally dragged along the road. Long had pleaded guilty to manslaughter. Bowers and Cole were convicted of manslaughter after a trial before Edis J at the Central Criminal Court; all three were acquitted of murder.

Bowers and Cole sought leave to appeal against conviction. The Attorney General sought leave to refer all three sentences as unduly lenient, while the offenders challenged their sentences. The central conviction issue was whether the agreed dangerous escape formed part of the conspiracy to steal and could found unlawful act manslaughter.

1. The court refused Bowers’s and Cole’s applications for leave to appeal against conviction. The agreed plan to escape police by dangerous driving, if necessary, was part and parcel of the conspiracy to steal. It rendered that unlawful agreement dangerous for the purposes of unlawful act manslaughter. The objective test required a risk of some physical harm, not a serious risk of death.

2. Andrews [1937] AC 576 concerned manslaughter by negligence. Its requirement of a very high degree of negligence had no application to this unlawful act manslaughter case. The court applied the approach in JF [2015] EWCA Crim 351 and Bristow and others [2103] EWCA Crim 1540: an offence not intrinsically violent may be dangerous because of the circumstances in which it is committed and the foreseeable risk of intervention during escape.

3. The court refused the Attorney General’s applications for leave to refer. Under section 36, the issue was whether the sentences lay outside the range reasonably open to the judge, not whether a different sentence could have been imposed. The judge had correctly applied the unlawful act manslaughter guideline, placed the offending in the highest culpability category, and reflected the victim’s status as a police officer acting in the execution of his duty.

4. The judge was entitled to find Long dangerous but also entitled to conclude that a lengthy extended determinate sentence under the Criminal Justice Act 2003 provided adequate public protection. In assessing the continuing risk posed by a young offender, the prospect of maturation and available alternative sentences were material. The sentences for manslaughter were neither unduly lenient nor manifestly excessive.

5. Bowers’s and Cole’s sentence appeals were allowed only to correct unlawful or erroneous ancillary orders. Their sentences of detention in a Young Offender Institution for conspiracy to steal were replaced by concurrent 18-month detention and training orders. Their driving disqualifications were replaced with periods of eight years and six months, with an extended driving test requirement. Long’s sentence appeal was refused.

• Court of Appeal (Criminal Division) In [2020] EWCA Crim 1729, refused the conviction applications, refused the Attorney General’s sentence references, and allowed Bowers’s and Cole’s sentence appeals only to correct the conspiracy and driving-disqualification orders.
• Central Criminal Court Before Edis J, Long pleaded guilty to manslaughter; Bowers and Cole were convicted of manslaughter; all three were acquitted of murder. On 31 July 2020, Long received an extended determinate sentence and Bowers and Cole received custodial sentences.