10th February 2023
Although this blog is written generally from a liberal perspective, I do not object – in principle – to whole life orders for exceptional offences.
Other liberals would contend that no prisoner should face the prospect of never being released, to have all hope removed – and that to put a person in this position is in and of itself a cruel and unusual punishment, a form of torture.
But although this blog is deeply sceptical of imprisonment as a routine punishment, there seems to me to be a special category of offenders whose offences mean they should literally have a life sentence.
If whole life sentences, however, are available, one question which arises is whether such sentences should be limited to murderers.
And this question has, again, been prompted by the sentencing of David Carrick.
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The estimable legal blogger and criminal barrister Matthew Scott has set out why the sentence for Carrick of thirty-two years is correct.
The judge was right not to impose a whole life sentence on #Carrick. @thetimes & @VeraBaird are wrong. https://t.co/Xnd8O8FCPg pic.twitter.com/F6j9HLZ1DM
— Matthew Scott (@Barristerblog) February 10, 2023
Scott tells us that the reasoning of the judge as set out in her sentencing remarks is “unassailable”.
Given he is an experienced criminal barrister and I am not (and neither will be most of you) then we should defer to his expertise.
But “unassailable” was not the view I formed when I read the sentencing remarks.
Instead my immediate reaction was that the reasoning was not compelling.
In paragraph 32 of the sentencing remarks, the judge says:
“I have assessed very carefully whether given your abuse of position this case should attract a whole life order.”
In paragraph 35 of the remarks, the judge then says:
“The stand out feature is the element of abuse of the status of a police constable but having considered the matter with care I have come to the same conclusion as the prosecution. Of the utmost gravity though this is, the “wholly exceptional circumstances” test is not met.”
What confused me was that in the Wayne Couzens case, the Court of Appeal held (emphasis added):
It provides for its unique and defining feature, which was that Couzens had used his knowledge and status as a police office to perpetrate his appalling crimes against Ms Everard and for the extensive and extreme nature of the other aggravating features which were present: the significant and cold-blooded planning and pre-meditation; the abduction of Ms Everard; the most serious sexual conduct; the mental and physical suffering inflicted on Ms Everard before her death; and the concealment and attempts to destroy Ms Everard’s body.
We agree with the judge that having determined there should be a whole life order, given the misuse of Couzens’ role as a police officer and the serious aggravating features of the offending the guilty pleas did not affect the outcome.
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It seemed to me that if the Couzens’ role as a police officer meant that what otherwise would be a long term sentence was converted into a whole life order then it would follow that the same would be the case for Carrick.
Against this view, the Crown Prosecution Service in the Carrick case made a point of not seeking a whole life order, and I did not immediately understand this concession, and nor why the judge went along with it.
But now, looking again at the authorities, I can see why Scott is (probably) right and – unsurprisingly – why my instinct was (probably) wrong.
Let me explain.
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On the face of it, the legislation permitting whole life orders is not limited to murder or any other offence:
S. 321. Life sentence: minimum term order or whole life order
(1) Where a court passes a life sentence, it must make an order under this section.
(2) The order must be a minimum term order unless the court is required to make a whole life order under subsection (3).
(3) The order must be a whole life order if—
(a) [in effect, the offender is over 21], and
(b) the court is of the opinion that, because of the seriousness of— (i) the offence, or (ii) the combination of the offence and one or more offences associated with it, it should not make a minimum term order.
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This means as long as the conditions in section 3(a) and 3(b) are ticked then there can be a whole life order.
There is no mention of any particular offence.
But in a 2020 case the Lord Chief Justice sitting with the other senior criminal appeals judges considered whether non-murderers would ever meet the threshold for a whole life sentence.
The Court of Appeal said (in a passage which I have broken up for flow):
We endorse the line of authority which does not shut the door to a whole life tariff in a case not involving murder.
The infinite variety of circumstances which give rise to serious offending make it impossible to identify such cases in advance, but we give an indication of the circumstances that might justify such a sentence.
We can envisage circumstances where murders of similar exceptionally high seriousness […] are substantively planned to a point close to execution (conspiracy to murder or attempted murder) but the crime does not occur because the enterprise is foiled or prevented by some fortuitous intervening event.
Examples might include when a bomb planted on a commercial airliner fails to explode or does so without causing sufficient damage to bring it down; similarly, a bomb in a public place does not achieve the wicked aim of those who planned or planted it; or intervention by the authorities prevents an act of mass-murder.
There will be other cases that do not involve a planned homicide of this kind which will merit a discretionary whole life term but, as Lord Phillips observed in Neil Jones, when they occur the need for such a sentence will be clear.
Otherwise, a determinate term of appropriate length will meet the requirements of retribution and punishment.
The offending in the cases of McCann and Sinaga, very serious indeed though it is does not, in our judgment, call for either to receive a whole life tariff.
This is not to minimise the seriousness of their offending but instead to ensure that the most severe sentence in our jurisdiction is reserved, save exceptionally, either for the most serious cases involving loss of life, or when a substantive plan to murder of similar seriousness is interrupted close to fulfilment.
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So if a whole life order can be imposed when there has not been loss of life – but normally it should be where there was a plan to murder which somehow failed.
If this is the settled and firm view of the court of appeal – and the sheer seniority of the judges on that panel would indicate that should be taken to be the Court of Appeal’s policy, then we can see why the Crown Prosecution Service and the judge in the Carrick case did not seek or consider a whole life order.
Yes, a whole life order can be imposed where there is not loss of life – but not even in a case like Carrick, notwithstanding the misuse of the defendant’s misuse of his police status.
Indeed, it would appear that the misuse of the police status was instrumental in getting Carrick to the starting point of a sixty year sentence which, after the “credit” for his guilty plea, and a reduction to take account of what period a life prisoner would otherwise spend out of prison on licence, ended up with the minimum of thirty-two years to be served.
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You may think that despite the Court of Appeal setting out the exceptional circumstances where a non-murderer can get a whole life order, one should have been imposed in Carrick’s case.
Or you may think that given the age of Carrick, it is academic whether it is a thirty-two year sentence or a whole life order.
Or you may have another view.
My own normative view is that the Court of Appeal has set too narrowly the sort of cases that warrant a whole life order, and that if misuse of his position as a police officer was enough to convert Couzens’ sentence to a whole life order then the same should have been the case for Carrick.
But practical law is not normative but positive, and you have to take the law as it is, and not what you would like it to be; and the Court of Appeal’s policy on whole life orders meant that neither the Crown Prosecution Service nor the trial judge were in a position to seriously seek or consider a whole life order in this case.
And, for the reasons Scott gives in his post, it is indeed unlikely that the Court of Appeal will shift its position if Carrick’s sentence is referred to it as being “unduly lenient”.
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Imposing whole life orders for crimes other than murder gives criminals who commit such offences an incentive to kill their victims. If, say, rape and murder carry the same sentence, why not kill the rape victim and remove the key witness?
Assuming the offenders are rational actors who respond to such incentives, which is doubtful. Then because the chance of being convicted is much higher for murder than for rape. Difficult to argue e.g. consent or false accusation if the victim is dead.
This is one of those exchanges that leaves a layperson feeling greater respect for the law and its practitioners. It is remarkable to see the care and consideration given to arguing the position, which is one that I as a complete amateur instinctively agree with.
I am heartened and encouraged to have confirmation that good and expert people are managing these complex affairs. And again, many thanks to David Allen Green, for giving us access to these insights. It’s one of the few reasons why on the whole I am glad of social media.
Really interesting post, thank you.
Although I have prosecuted and defended in the magistrates’ courts, I would certainly not claim expertise of the sort brought to bear in these cases.
However, I do wonder, without any certainty, whether the reason for the different sentencing in these two cases can be found within the passages you cite from the Court of Appeal in Couzens?
“We agree with the judge that having determined there should be a whole life order, given the misuse of Couzens’ role as a police officer and the serious aggravating features of the offending the guilty pleas did not affect the outcome.”
The words “…given the misuse of Couzens’ role as a police officer and…” suggest, perhaps, that the court felt it was the combination of his misuse of the role and the other very serious matters that justified the whole life sentence?
You are right – of course – that the legislation doesn’t limit whole life orders only to murder, but my reading of the legislation you linked to is that it then points you to Schedule 21 section 2 and all of the examples of cases where a whole life order would normally be appropriate are murders with aggravating features.
If your instincts are that this case might warrant a whole life order, is there anything you might propose parliament could add to that enumeration to fix the situation?
The key word there is “normally”. As such there is perhaps no need to change the legislation.
1. There is a traditional hierarchy of criminal offences of which murder is at the top, irrespective of what people think on different abhorrent offences. That is why Murder gets a mandatory life sentence with a tariff up to whole life whereas other offences may have discretionary life sentences – theoretically with the same range but obviously moved down from murder.
2. The trend of the past 15 years or so for sentence inflation has led to a squeezing at the top end. Traditionally one used to be taught about sentences that maximums can only be for the very worst of the offence being sentenced for – this allows a range that is proportionate for all below the worst. Was Couzens the worst? Or Carrick? Sadly not…
3. There is an old legal saw “Hard cases make bad law”. If there is a dash of media interest this is squared. Couzens was liable for a 30 Yr minimum anyway – what should a Shipman get to mark the exceptional iniquity?
I particularly admire your ability to be open about changing your mind and explaining why you changed a view you previously held. Far too rare these days
I have to admit with the illogical nature of the law, particularly the ‘punishment’ element which, if the intent is to avoid – prevent – crime in the first place then a post hoc retribution is illogical, but it can make one feel good?
I was taken by the quote (partial) “ Otherwise, a determinate term of appropriate length will meet the requirements of retribution and punishment.”. What do retribution and punishment have to do with protecting the public
Logically the question should akin to “does X pose a threat that can only be mitigated by incarceration?” If the answer is yes, then allowing for proper support to reform, any sentence should be until the threat to the public is acceptable
In the case of both convicted police officers, my gut feel is this will be ‘never’
I realise this is not how the variety of British law works (if any) but the illogical nature of it all confuses me
I guess this is because we have a criminal law system on reductionism and punishment rather than a complex systemic approach of prevention?
The legislation doesn’t say that whole life terms are imposed to mitigate a threat to the public. Rather, they are imposed to mark the seriousness of the offence.
While deterring/preventing possible future crimes is one of the objectives that imprisonment is said to serve, I think research shows that imprisonment is actually not very effective at achieving that objective – in terms of preventing crime, the resources put into long custodial sentences would be more effectively deployed (i.e. they would have a greater effect on crime rates) if put into policing, detection, diversion, etc.
So long sentences, including whole life orders, are mainly imposed for other reasons – to mark the seriousness of the offence; retribution; punishment; etc. If we don’t accept these as legitimate sentencing objectives, then the case for whole life orders is hard to make. In Carrick and Couzens the aggravating circumstance said to justify a whole life order was status as a police officer and use of that status to perpetrate the offences. But of course in both cases that status is now gone, so a whole life order is not necessary to prevent the offender from committing future offences aggravated by that status.
Like David, my instinct was that there was an applicable precedent for a whole life order here. I understand the argument against it, and although I’m still uncomfortable with it, I recognise that my personal feelings about the police will likely be clouding my judgement.
But I do feel strongly that this needs to be addressed in legislation, in a specific amendment to Sentencing Act dealing with the aggravating factor of misusing a position of authority in the most serious crimes. And I would hope that amendment would be based on expertise in penal studies, not on newspaper headlines (nor appealing to a biased member of the public like me).
I feel there is another issue here. There is a depressingly long history of rape not being treated sufficiently seriously, and of an extremely low conviction rate (and, ironically, Carrick may never have been convicted were he not a police officer).
I would argue that, for raping dozens of victims, along with other sexual offences, a life sentence with a high minimum custodial term – such as Carrick received – should be a starting point. I can’t say whether aggravating factors should increase it to a whole life order or a significantly longer minimum custodial term (and as I said, I’m biased).
However, as others have said, public protection is at least as important in sentencing as punishment. If we view someone who has murdered multiple victims as unsafe to ever be amongst the public again, I struggle to see an argument against the same principle being applied to a rapist with dozens of victims.
(And I would be extremely uncomfortable with the adult perpetrator’s age at sentencing being a factor in any but the most extreme circumstances. I’m 43; if I was in prison for thirty years, I might be dead before the end, or I might be released in rude good health. There is no way of predicting that, and the courts should not try to do so.)
Yet as David says, the courts are there to apply the law as it is, not as it perhaps should be. This, again, is a job for Parliament.
Forgive me if I’m not enormously confident about Parliament addressing these issues in the immediate future.