Life Sentences: Whole-Life Orders.
01 October 2021
When are whole life orders imposed?
All murders share an inescapable common factor: the criminal taking of a human life. However, not all murders are alike. The nature of murders and culpability of murderers varies hugely, and this is reflected in the range of length of sentence imposed by judges.
The mandatory sentence in all cases of murder is a life sentence, the harshest penalty available to the courts since the abolition of capital punishment. The court must either order a minimum term to be served before the offender can be considered for release, or, in exceptionally serious cases, make a whole life order in accordance with paragraph 2 of Schedule 21 of the Sentencing Act 2020.
It is for the sentencing judge to determine the appropriate starting point and sentence in light of the facts of the case, aggravating and mitigating circumstances, sentencing procedure, and the aims of sentencing. To be eligible for a whole life order, the seriousness of the offence must be exceptionally high, for example, involving multiple or serial murder, or the murder of a child in circumstances where there was premeditation, abduction, sexual or sadistic conduct. Other examples might include a murder committed for political, religious or ideological reasons, or where the offender has previous convictions for murder.
Does whole life really mean whole life?
A whole life order is draconian, but is an appropriate penalty for cases of exceptionally serious criminality. In theory, a whole life order means that the offender will be kept in prison for the rest of their life. Sentences of this kind have been a contentious issue in the UK in recent years, and have frequently been challenged in the courts. Prisoners have argued that such orders infringe their art.3 and art.5(4) rights, and raised concerns about the inflexibility of an irreducible life sentence. However, in order to be compatible with art.3 ECHR 1950, there must still be the possibility for release under exceptional circumstances (Attorney General's Reference (No.69 of 2013)  EWCA Crim 188].
The Secretary of State has discretion to order the exceptional release of a whole life prisoner on compassionate grounds (S.30 Crime (Sentences) Act 1997; Prison Service Order 4700). There is likewise a discretion to order release of a prisoner if the time should come when continued detention of a prisoner subject to a whole life order would, of itself, amount to inhuman or degrading treatment (R v Bieber  EWCA Crim 1601).
Even a ‘distant but real possibility’ for release is sufficient to avoid a violation of art.3. This means that prisoners who will become eligible for review in several decades time are still deemed as having a realistic prospect of release, albeit a distant one. Prisoners are entitled to know what they would have to do to be considered for release and under what conditions, and to know their efforts to reform are directly linked to their prospect of release. They must be given the help, support and training to permit rehabilitation.
The murder of Sarah Everard
Fulford LJ described the murder of Sarah Everard as “devastating, tragic, and wholly brutal”. The perpetrator, Wayne Couzens, has been sentenced to a whole life order. Unusually, the murder of Sarah Everard did not fit into any of the categories set out in paragraph 2 of Schedule 21 of the Sentencing Act 2020, but a whole life order was found to be required due to the exceptionally serious nature of the offence.
Wayne Couzens advanced several factors in arguing that a whole life term should not be imposed: he was a 48 year old father of two, of previous good character, and he had pleaded guilty. However, he had abused his position and the tools of his trade to kidnap, and eventually kill, Ms Everard, in what Fulford LJ described as an attack on “the fundamental underpinnings of our democratic way of life”. Fulford LJ found that this offence was one of such exceptional seriousness that it justified the imposition of a whole life order because it was committed by a serving police constable when acting as if on duty, and due to the particular aggravating factors, including the significant planning and premeditation, and the attempts to destroy and conceal Ms Everard’s body. His sentencing remarks can be viewed here.
Although this type of sentence remains contentious, the sentence of Wayne Couzens shows us that the courts of England and Wales remain prepared to impose whole life orders in appropriate cases. Furthermore, in sentencing Wayne Couzens, the court has demonstrated that it is prepared to pass whole life terms in new categories of exceptionally serious cases, not contained in Schedule 21, that plainly call to be treated in this way.
According to Ministry of Justice statistics, as at 30 June 2021 there were 60 prisoners serving whole life orders. Wayne Couzens is now added to that number.