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Whole Life Orders imposed upon those convicted of murder have always been reserved for an exceptional category of horrific cases. Yet both the courts and Parliament have shown willingness in recent times to broaden that category. The awaited judgment from the Court of Appeal in Couzens and Others is unlikely to stem that trend. Tom Edwards and Joe Hingston look at recent developments and consider what the future holds.

A conviction for murder attracts a mandatory life sentence. But it is left to the court to set a minimum term of years before a prisoner is eligible for release. Exceptionally however, in the most egregious cases, it is open to the court not to set a minimum term, but impose a Whole Life Order (“WLO”). In those circumstances, a prisoner cannot expect to be released, save in exceptional compassionate circumstances.

Historically, the imposition of a WLO – previously referred to as a Whole Life Tariff – lay in the hands of the Home Secretary. It was difficult to reconcile the executive meddling with decisions made on individual cases in the criminal justice system, and since the enactment of the Criminal Justice Act 2003, the decision now rests with the court.

Cases that have a starting point of a whole life order are those when the seriousness of the offence is “exceptionally high”. Paragraph 2(2) of Schedule 21 of the Sentencing Act 2020 lists five cases that would normally fall in this category:

(a) the murder of two or more persons, where each murder involves any of the following—

(i) a substantial degree of premeditation or planning,

(ii) the abduction of the victim, or

(iii) sexual or sadistic conduct,

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(c) the murder of a police officer or prison officer in the course of his or her duty,

(d) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or

(e) a murder by an offender previously convicted of murder.

There have been various challenges as to whether a WLO is compliant with Article 3 of the European Convention on Human Rights – the right not to be subjected to inhuman or degrading treatment or punishment. The Grand Chamber held in Vinter v UK (2012 EHRR 55) that a WLO was incompatible and for a sentence of life imprisonment to be compatible with Article 3 there must be provision for the possibility of review and release.

A strong Court of Appeal in McLoughlin [2014] EWCA Crim 188, however, found that the power of the Secretary of State to release any life sentence prisoner exceptionally on compassionate grounds (conferred by section 30 of the Crime (Sentences) Act 1997) satisfied that requirement, so that English law was compliant with the ECHR.

It was this release provision that persuaded Strasbourg to reverse their position in Hutchinson v UK (2015) 61 EHRR 13 (393) where they held that the Secretary of State’s power was sufficient to comply with Article 3, a decision that was upheld by the Grand Chamber [2017] ECHR 65.

It is noted that not a single prisoner subject to a WLO has been released under this power. Indeed, a number have died while serving their sentences having suffered from long debilitating illnesses. Some may recall the furore surrounding the release of the Locherbie bomber al-Megrahi by the Scottish Justice Secretary in 2009 (where WLO do not exist). It is hard to envisage a scenario in our febrile political climate where a government decided that a prisoner was so unwell they should be released from their WLO.

There is little about these cases which attracts sympathy for the individual offenders. They are responsible for unspeakable horror. But it is a matter of debate whether our criminal justice system should thwart any chance of rehabilitation or reintegration into our society. Even for those who have committed the most egregious crimes. In Vinter, Strasbourg observed that there is “clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved”.

Nonetheless WLO have amassed more subjects – now at 64 – and that number is surely set to increase. Legislation given Royal Assent proposes a wider category of offenders who may be subject to a WLO. Under the Police, Crime and Sentencing Court Act 2022, the courts will be given greater discretion in imposing such orders.

Firstly, the Act provides for the courts to impose a whole life order on offenders aged 18 or over but under 21. It has previously only been available to those aged over 21. This change was precipitated in part by the remarks of Mr Justice Baker in sentencing Hashem Abedi, the brother of the Manchester Arena bomber. The court observed that it was unable to impose a WLO due to the Abedi’s age but stated that it would have been a ‘just sentence’ in that case.

Secondly, the Act adds a further (sixth) category to Schedule 21 to include “the murder of a child involving a substantial degree of premeditation or planning”. Arguably this development in reality is unlikely to add anything. Wayne Couzen’s case, as horrific as it was, did not fall squarely within one of the five cases. In his sentencing remarks, Fulford LJ stretched the categories and likened the abuse of Couzen’s position as a police officer to an ideologically motivated murder. He also noted that the Schedule was not a closed list. This approach will inevitably embolden the courts in the future to move outside the prescribed list of cases in the Schedule.

The Court of Appeal is due to deliver its judgement in Couzens in the near future. The case is being heard in conjunction with four other cases. It is perhaps no surprise that this appeal arises now. The 64 people serving a WLO represents a three-fold increase within the last twenty years. The average minimum term for those subject to life sentences has risen from thirteen to twenty years. Within that time we have seen the rise and fall of the IPP (indeterminate sentence for the public protection) and the extension of the length of time someone serves before they are released for violent or sexual offences of seven years or more. Sentences are moving in one direction.

Couzens’ appeal raises questions about the balance to be struck between punishment, protection of the public and rehabilitation. Additionally in Couzens’ case there is the issue as to what, if any reduction someone should receive for pleading guilty. The imposition of a WLO regardless of plea arguably chills a defendant’s willingness to plead guilty, even when faced with overwhelming evidence. According to media reports, Couzen’s legal team in written submissions to the Court of Appeal argued: ‘If a whole life order is inevitable regardless of plea, then defendants in [Couzens’] position are less likely to plead guilty.’

With all cases, there is the consideration of where an offence falls within the pantheon of murderous acts. The fact that a case captures the headlines or the public’s attention does not necessarily mean that the crime is more heinous or deserves greater punishment to be doled out.

The other cases heard in conjunction with Couzens are:

The latter case Stewart is on appeal whereas the others were referred to the Court of Appeal by the Attorney-General.

Tustin’s (and Hughes’) case made headline news. Arthur Libinjo-Hughes was only six years old when he died. He had been poisoned with salt, subject to regular and horrific beatings and was so weak from malnutrition that he couldn’t lift his own duvet before ultimately sustaining a blow to the head that killed him. Nine of the eleven jurors returned to see sentence passed. The jury held a minute’s silence at the conclusion of the trial. Photographs and videos of him were sent between Tustin and Hughes with degrading language and messages egging on further violence. In sentencing the judge said that neither had shown any remorse and described their behaviour as “spiteful and sadistic” in “one of the most distressing and disturbing” cases. Tustin was sentenced to life imprisonment with a minimum term of twenty-nine years.

Monaghan’s campaign of murder spanned six years. He was convicted of three counts of murder at Preston Crown Court. He first killed his newborn daughter in 2013 before going on to smother his twenty-one month old toddler at swimming pool eight months later. Six years afterwards he went to poison his partner, Evie Adams with prescription medication that he had obtained illegally. He faked a suicide note in order to cover his tracks. He was also convicted of two counts of attempted murder to a further child. He had feigned his sadness at a press briefing following the death of this second child. He was described by the judge as “an exceptionally controlling, selfish and cruel man.” At the appeal he was described by Counsel for the Attorney-General as having “no mitigation at all”. He received a sentence of life imprisonment with a minimum term of forty years.

Stewart’s case differed in that he had a previous conviction for murder, having been convicted of the murder of Helen Bailey in 2017. He received a whole life term and is appealing his sentence. He was already subject to a life sentence with a thirty-four year tariff when convicted. That offence for which he was first convicted involved planning, poisoning and a plot to inherit his wife’s four million pound fortune.

Couzens’ case was factually unique. He was a serving police officer. There was a high level of detailed planning demonstrated by the purchasing of equipment with which to carry out the rape and murder of Sarah Everard – this included self-adhesive carpet protector, petrol and hair ties, believed to have been used to maintain an erection. She was isolated, selected and abducted. Couzens used his position as a police officer to fraudulently arrest her. Miss Everard was alone, walking home in London late at night. Her death came to be seen as symbolic of the vulnerability of young women in the metropolis.

These five cases show how difficult it is assess the gravity of each crime when set against other appalling and horrific offences. The criteria in the Sentencing Act might not be exhaustive, but it hasn’t been long since their drafting and already a case has stretched them to breaking point. Whilst the case of Couzens was symbolic and horrific, the reality is that it doesn’t fit any of the criteria in the Schedule. In addition, he pleaded guilty and at an early stage in proceedings. As said by Jim Sturman QC representing Couzens he may have deserved “decades in jail” but was his case so heinous that he should be denied the prospect of any release at all?

It is a matter of debate where a rogue police officer with sadistic and murderous intent sits alongside a serial murder or ideological murders where terrorism is the motivating factor. Nonetheless, the Court of Appeal are unlikely to fetter the discretion of a trial judge in determining the appropriate starting point. It is, after all, merely a “starting point”, and a trial judge is best positioned to weigh up the aggravating and mitigating features in a case.

The reality is that there is an appetite for harsher and sterner sentencing. When the Court of Appeal convenes a Super Court of five, a strong decision will follow. It would be a surprise if there is a buck in the trend.

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