30th September 2021
Earlier today the murderer of Sarah Everard received a whole-life sentence.
Such a sentence is exceptional – the relevant statutory provision sets out five express instances where this sentence can be imposed:
‘(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, where the offence was committed on or after 13 April 2015,
(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.’
But if you read the provision carefully, you will see that these five categories are not a closed list, but are instead examples of offences where the ‘the seriousness of the offence…is exceptionally high’.
The use of the word ‘include’ in paragraph 2(2) of that provision tells us the list is (as lawyers say) non-exhaustive.
In other words: other offences can warrant a whole-life sentence if ‘the seriousness of the offence…is exceptionally high’ – and what constitutes exceptionally high seriousness can be reckoned by comparison with the five express categories.
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The murderer of Sarah Everard – and, no, I am not typing out his name – does not on the face of it fall within the five express categories.
There was not more than one victim (so not (a)), who was not a child (so not (b)) nor a police officer (so not (c)), the murder was not done for any of the specified causes (so not (d)), and the murderer has no previous conviction for murder (so not (e)).
But these are only five illustrations of where ‘the seriousness of the offence…is exceptionally high’.
That said: it would not be enough for a judge to merely assert that an offence had sufficiently high seriousness so a whole-life sentence can be imposed.
Such a sentence would be open to being successfully appealed.
And so the task of a judge imposing a whole-life sentence when the circumstances are not one of the five categories is a difficult one.
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In the case of the murderer of Sarah Everard it seemed to me before sentencing that there was a real possibility that the judge would find a away to impose a whole-life sentence in this case.
This was because at the sentencing hearing the prosecution set out that it seemed that the offence was committed by a police officer using police powers.
And just as the law on whole life sentences recognises the special nature of police powers at (c) – ‘the murder of a police officer or prison officer in the course of his or her duty’ – it seemed to me that a murder committed by a police officer by means of the use of their police powers was comparable.
If murdering a police officer means a whole-life sentence, then so should the reverse – murder by a police officer
Both would show the special trust society places in the police
— davidallengreen (@davidallengreen) September 30, 2021
But – as Joshua Rozenberg this morning averred at his blog – it was not inevitable that the judge would find a basis to find an exception in this case – even though on the basis of the (uncontested) evidence set out in court a whole-life sentence seemed appropriate.
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The judge – Lord Justice Fulford – did set out a basis for a whole-life sentence in this basis, and this is contained in paragraph 19 of the sentencing remarks (which should be read in full).
Here I set out paragraph 19 and I insert my comments in brackets:
‘The most important question in this sentencing exercise, therefore, revolves around a question of principle: if a police officer uses his office to kidnap, rape and murder a victim, is the seriousness of the offence exceptionally high, such that it ought to be treated in the same way as the other examples set out in paragraph 2(2).
[Here the judge emphasises the fact that the murderer had used his police powers.]
‘In my judgment the police are in a unique position, which is essentially different from any other public servants. They have powers of coercion and control that are in an exceptional category. In this country it is expected that the police will act in the public interest; indeed, the authority of the police is to a truly significant extent dependent on the public’s consent, and the power of officers to detain, arrest and otherwise control important aspects of our lives is only effective because of the critical trust that we repose in the constabulary, that they will act lawfully and in the best interests of society. If that is undermined, one of the enduring safeguards of law and order in this country is inevitably jeopardised.
[The special position of police in our society is emphasised.]
‘In my judgment, the misuse of a police officer’s role such as occurred in this case in order to kidnap, rape and murder a lone victim is of equal seriousness as a murder carried out for the purpose of advancing a political, religious, racial or ideological cause.
[Here the judge takes (d) as the comparator of the specified categories, and not as I suggested (c) – and you will see why next. And note: it is not enough for the judge to assert that it was equally serious, and so he has to reason it out.]
‘All of these situations attack different aspects of the fundamental underpinnings of our democratic way of life. It is this vital factor which in my view makes the seriousness of this case exceptionally high.
[The judge argues that the values behind (d) are applicable in this case, as the manner of the murder undermines the rule of law – and now, having made that argument, he ties it to the facts of the case.]
‘Self-evidently, it would need for the police officer to have used his role as a constable in a critical way to facilitate the commission of the offence; if his professional occupation was of little or no relevance to the offending, then these considerations clearly would not apply.’
[Here he is careful to distinguish this case from situations when a murderer happened to be a police officer – for what makes this case exceptional is that the police powers were used in such a way that undermined the rule of law.]
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This sentence may be appealed – and as it rests on an exception rather than an express category, it is possible that the court of appeal may substitute a lesser life sentence.
But.
Lord Justice Fulford is a senior and experienced criminal judge – and indeed it is rare for a Lord Justice to preside at any trial – and the reasoning in paragraph 19 is (in my view) compelling.
It is difficult to imagine better reasoning for a case to warrant a whole-life sentencing outside of the five express categories.
(And, in any case, an appeal may well be moot in this case, as the new sentence is likely to still mean the murderer is never released.)
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Of course: there is a certain arbitrariness in whether a murder gets a whole-life sentence or not.
Had the facts been that Everard had got into that car for any other reason than by use of police powers, the ordeal would have been just as terrifying, but it would not have ended with a whole-life sentence for the murderer.
Or had the murderer only been pretending to be police officer, and so was not actually using police powers, it may also not have ended with a whole-life sentence for the murderer.
Victims of other murderers will suffer as much if not worse than murderers caught by the whole-life categories, but their murders will get shorter sentences.
And, of course, the victims of other murderers are not any less dead.
There is something to be said for the whole-life tariff being the starting point for murder, only to be reduced with mitigation.
(Though many other liberals will disagree, but there is nothing in my view inherently wrong with life-meaning-life for murder, notwithstanding the view of the European Court of Human Rights.)
But.
If there are to be whole-life sentences only for a minority of murder cases, then it must be right that murderers who use the coercive powers conferred by the state to commit those murders are treated as if they are attacking society itself.
And this is why the sentencing remarks of Lord Justice Fulford setting out how this offence warrants a whole-life sentence are (in my view) spot-on and we should hope this sentence survives any appeal.
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“(And, in any case, an appeal may well be moot in this case, as the new sentence is likely to still mean the murderer is never released.)”
And therein lies the rub.
Were I cynical, I might suggest that Lord Fulford was taking the view that Justice Must Be Seen To Be Done, and overreaching slightly, albeit justifiably, imposing the Whole Life Tariff, knowing full well than any appeal against the sentence would have the *net* result of the murderer dying in prison anyway (starting point of 30 years with a laundry list of aggravating factors, it seems to my amateur eye that a 50-year minimum would not be out of the question).
However, the arguments are well-reasoned and clear, including the qualifiers that take such pains to explain why the unique, horrifying circumstances surrounding this case place the offence in the WLT category. It would be, as the phrase goes, a “bold submission” to try and argue against it.
Well, it seems there is an appeal against sentence. It will be interesting to see what the Court of Appeal says, either way.
There is surely an argument for any person in a position of trust, ie teachers, religious figures etc, should suffer greater penlties for abusing their position of authority.
Absolutely. That’s why “abuse of a position of trust” sits alongside “absure of power” as a specific aggravating factor in the Sentencing Guidelines.
https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/aggravating-and-mitigating-factors/
And indeed “abuse of a position of trust” is included in the aggravating factors set out in paragraph 9 of Schedule 21 of the Sentencing Act 2020, which David linked, along with, inter alia, planning or premeditation, suffering inflicted on the victim, use of duress, and concealment, destruction or dismemberment of the body. None of the mitigation in paragraph 10 appears to apply.
I was initially surprised at the “whole life” but the facts here are simply horrifying and the rationale looks convincing to me. This is right up at the very top end of severity. There may be an appeal against sentence, but I would expect it to be rejected.
As I understand it the ECHR are content with “life means life”, as long as it is a judicial sentence, not imposed by a politician.
The perpetrator is 48 I believe. He may well die in prison. In the unlikely event he is ever released, it would be on life licence subject to potential recall at any time, so in that sense “life means life” whatever the minimum tariff.
Occasionally a case comes along that sorely tests my general opposition to the death penalty…
“Occasionally a case comes along that sorely tests my general opposition to the death penalty…”
mine too – just now and then …
It is a matter to ponder upon, whether a policeman, a parliamentarian, a priest or a prince should receive a longer spell in the pokey than a pauper or a pikey.
A heavy crime but thanks David for an excellent blog.
One point about WLT which has not been discussed is that such appeals to the heinousness of the crime alone seem to ignore the possibility that the offender might conceivably be reformed at some later point in his or her life. The whole case for WLT seems in fact to depend on the notion of retribution for its own sake, rather than on the practical sentencing issues of ensuring public safety via incarceration, but also offender reform and of course the deterrence of other potential offenders. So I am not sure that I do agree with the concept of WLT or with its application in this particular case.
How could he reform from such a crime sufficient to merit release? He could, if he chose, reform to a limited point within prison confines by continuous inward-looking, genuine repentance and good behaviour. But that is essentially a private matter and not one in any way to be inflicted on the public.
I am not a psychologist but I would question any simplistic link (of the sort you are making) between severity of a particular crime and incapacity for reform
I am not making a simplistic link. I don’t believe that once you have taken someone else’s life you can reform in the normal sense of the word. Whatever you achieve from reflecting on your own actions, and leading a good life in prison, you can never ever make up for the fact you took someone else’s “whole life” away.
Alison, you seem to be saying that NO murderer should be eligible for parole. Is that so?
There is provision for the SOS to release someone from a WLT in limited circumstances and following consultation with the Parole Board. It seems unlikely it would happen in relation to Couzens but a lifetime is a long time.
I do value your emails, and thank you. I’m not of the law, but your concise elucidation of the summing up is excellent and perfectly understandable by a retired female librarian.
I think that the unusual step of having a Lord Justice presiding at the trial was precisely because the key issue (once a guilty plea had been entered) was going to be sentencing. The Court of Appeal hears far more sentencing appeals than appeals against conviction. I would go so far as to say that it is where the Court of Appeal is actually at its most competent.
So a senior Lord Justice would be much less likely than a less experienced judge to err on the sentencing task.
I would be very surprised indeed if the sentence is modified on appeal. Fulford’s care in setting out his reasoning makes it highly unlikely the Court of Appeal will intervene. They can also take the view that Fulford had the benefit of seeing and hearing the various submissions and thus the Court of Appeal should be slow to interfere (as someone who thinks the Court does not intervene often enough I am in the unusual position of agreeing with the Court!).
Quite – and Fulford is not just any Lord Justice of Appeal, but also the current Vice-President of the Court of Appeal’s Criminal Division.
If a whole life tariff were to be the starting point for murder, how could the exceptional cases be dealt with? Such a law could only be a stepping stone to the death penalty.
That does not follow. Every sentencing regime has a starting-off point, with no risk of the death penalty.
Very good post – thanks. Quis custodiet custodes ipsos? This judgement surely makes it imperative that Cressida Dick resign, in order to demonstrate that she understands that the police act by consent of the public and not as a paramilitary force of the state. It isn’t about her, it’s about the relationship between the police and the citizenry. This case shows an officer crossing that line, and some. Someone must be seen to be taking responsibility. The Met’s usual waffle about “learning lessons” – a way of saying sorry and not meaning it – simply does not match the severity of the crime, and breach of trust, as rightly reflected in the sentence. If they don’t get it, she should be fired, pour encourager les autres.
Whether the murderer is imprisoned, switched off or hung out to dry for us all to cheer and clap at his every sigh will not preclude a recurrence. Following up on why he was not internally investigated, after showing himself to be at least an oddball and very possibly damaged goods with sexual problems, just might. What is dame Cressida proposing? How can this have been allowed to happen? -is the question, but more precisely:
– what was the monitoring system which showed these aberrations in the murderer’s past, what exactly was it designed for and what was the plan (if there was one) for dealing with aberrations, what action was taken in view of the information?
– where & when were the notes on the murderer’s file parked and when was it decided that the murderer could continue in post?
– who was responsible for parking or passing on the information?
Dame Cressida, you’re up. Let us hear what was done and what will be done going forward.
While I do not disagree with the sentence passed in this case I believe that there should always be some hope even for those convicted of the most serious offences.
I would suggest that it should be open to any offender who has served at least 10 years in prison, possibly 5 years for non life sentence prisoners to apply to the parole board for release.
Clearly there would be no automatic right even to have their application considered and anyone subject to a whole life sentence would have a very steep hill to climb, but it might encourage a to address their behaviour and possibility all the release of those whose continuing imprisonment served no useful purpose.
I disagree, absolutely.
For certain crimes, there should be no hope of parole.
And I agree absolutely with you David.
I cannot understand why people want to avoid naming Wayne Couzens (or any other criminal). There is no suggestion he did it for notoriety, and he certainly should not be granted a right to be forgotten. He gains nothing from being named, but might benefit from people failing to remember just who he is and what he did. Web searches should find articles like this which discuss his sentence.
While I would want to there always be some hope for anyone to be released, I would also expect that in this case the hope is very small. But bear in mind that in Norway, even Anders Breivik, who murdered 77 people, will be able to petition for parole and be release unless he is considered to remain a danger to society. And Norway’s murder rate is less than half that of the UK, so more severe sentences are no guarantee of greater protection for the public (which should be the main aim).
He is not named because it is the focus is on the victim Sarah Everard. And that can be googled.
I don’t see how it could possibly be the case that it is about the victim rather than the criminal. The whole article is about what he did and his circumstances. If the victim had been someone else, the only change needed would be to change her name, while if the criminal had been someone else, or if he had carried out the murder in a different way, the whole focus of the article would have to change. A murder is all about the murderer. It was he who chose to do it, when to do it, how to do it, and who should be the victim. His victim had no choice, except in the eyes of those who seek to blame a woman for being out alone late at night.
Several comments appear to criticize the whole life order in this case because it ignores the chance that the offender might be reformed at some point. Section 57(2) of the Sentencing Act 2020 sets out the purpose of sentencing. Those purposes include “the reform and rehabilitation of offenders” (§57(2)(c)) as well as “the punishment of offenders” (§57(2)(a)) and “the protection of the public” (§57(2)(d)). Admittedly, section 57(2) says “the court must have regard” to the purposes of sentencing. I suggest, however, that Schedule 21 reflects an initial balancing of the purposes of sentencing; for someone falling under paragraph 2 of Schedule 21, Parliament has decided that the need to protect the public and the punishment of the offender outweigh any interest in rehabilitation. Some offenders are simply too dangerous to be released, and they can not be restored to a constructive place in society because even after 20, 30, 40 years. they pose an unreasonable risk to the public. The sentencing remarks in this case should leave no doubt that this offender can not be released — ever.
Another comment viewed a whole life tariff to be the starting point for a murder sentence, leaving no useful sentence for exceptional cases but imposition of a death sentence. That view, I suggest, misreads Schedule 21. The statutory scheme sets life imprisonment as the sentence but recognizes that every murder (and murderer) is different. Thus, the starting point for what I would describe as an ordinary murder is 15 years (Sch. 21, para. 5). As the circumstances of the killing show, for example, various degrees of dangerousness, vulnerability of the victim, and non-amenability to criminal sanctions, the minimum term increases from 15 years. The exceptional case is dealt with not by increasing the maximum sentence, but by increasing the minimum term. There is no basis for thinking the death penalty is needed for the exceptional case.
It is easy to be cynical when practicing law, but even wizened practitioners can be surprised. (When I practiced law, I was cynical most of the time and rarely surprised.) It was important that the criminal justice system make a statement about this case. As several comments observed, a Lord Justice of Appeal usually isn’t found lurking in the back hallways of the Central Criminal Court. I also think paragraph 19 of the sentencing order is a subtle rebuke to the government and to the Met. The Daniel Morgan report in June and the judgment of the Investigatory Powers Tribunal this week in the Wilson case are less subtle rebukes to the government and to the Met. Each time, one hears that there are ”lessons to be learned”; I suspect one’s copybook shows very little in the way of learning those “lessons.”
One last thought — everyone’s attention has been on the sentence imposed in this case and the reasoning of the judge in reaching his decision. But for me, the judge really came across as a person in paragraphs 26-28, especially paragraph 28. Not every judge would make the effort to thank the court staff for their efforts.
Update: On July 29, 2022, the Court of Appeal affirmed the whole life sentence imposed on Couzens, albeit using an approach different from that used by the sentencing judge. [2022] EWCA Crim 1063, at [52] to [85].
On Friday morning a news story broke in France about the detection of a serial killer who happened to have been a serving gendarme at all material times.
The guy was caught thirty years after the event after a cold case review by an examining magistrate who relying on DNA had just summoned 650 past and present gendarmes for questioning.
No two cases are the same but these two really merit scrutiny and comparison.
In future perhaps all new and serving police officers should be fingerprinted and Dna’d ?
Reply to Peter Ellway further to the question, “Alison, you seem to be saying that NO murderer should be eligible for parole. Is that so?”
I think I am, yes, but would prefer prison to be a much better place than at present, allowing prisoners to develop their lives within prison.