Life Sentences

This article will shine a light on the use of the punitive features of sentencing, with particular focus on life sentence. It will conclude that there is a trend for legislation to be enacted to make greater use of the punishment inherent in life sentences, and that there may be a trend emerging to expand the circumstances in which a whole life order will be imposed.

Mandatory Life Sentences

The mandatory life sentence for murder originates from section 1 of the Murder Act 1965, which provides that ‘no person shall suffer death for murder, and a person convicted of murder shall be sentenced to imprisonment for life’. This is important, because much analysis proceeds on the basis that there is something special about the crime of murder which justifies a life sentence regardless of the circumstances. However, the original justification is that it was thought appropriate to abolish the death penalty and something had to replace it. That a life sentence must be mandatory for murder does not survive much scrutiny when the primary justification rests on an historical afterthought.

But, it is here to stay, and probably to advance rather than retreat; that is the trend with which this article is primarily concerned.

Harper’s Law

The first area of expansion is either driven by parliamentary or populist considerations, depending on one’s affinity with the current government. Regardless, it is driven by considerations of policy, not principle. ‘Harper’s Law’ will make a life sentence mandatory for anyone who kills an emergency worker during the course of an unlawful act. That sentence will be mandatory save for in exceptional circumstances.

This is a move which dismays many working within the criminal justice system, but surprises few. It is an example of the trend of successive governments to be ‘tough on crime’ in introducing increasingly punitive legislation. It is a particularly striking feature of recent policy to react with outrage (genuine or opportunistic) and promise legislation purportedly to address concerns which arise in serious and notorious cases.

Curiously, policy moves such as this rest on the assumption that the public is baying for blood in serious cases, which is well-documented when surveys are conducted in a generalised way (Anthony Bottoms 1995). When asked, “should sentences be higher or lower?”, Joe Bloggs will say higher. However, more recent research has found that when asked to engage with individual case studies, the public is far more lenient (Julian Roberts et al 2009).

That life sentences are mandatory for murder has produced substantial difficulties in the development of the law in that area: (1) mercy killings (Pretty [2001]), (2) joint enterprise liability (R v Gnango [2011] and R v Jogee [2016]), (3) excessive self-defence. There is a valid legal and ethical debate over whether murder ought to be a crime apart from all others. However, there is no indication that the government has considered in any detail the difficulties created by mandatory sentences.

The merits or otherwise of this move to making greater use of the punitive elements of life sentences is better suited to more detailed exposition, but it seems clear that there is a trend following the abolition of the death penalty in 1965 (whole life order 1983, IPP 2005, Harper’s Law 2022?). The remainder of this article will moot the possibility that that trend also exists within the CJS.

Whole Life Orders

Wayne Couzens

This is a very sensitive area both on micro and macro levels. It is also an area in which one of the most experienced, and most respected, criminal judges in our legal system, Lord Justice Fulford, made a careful decision in possession of all the relevant information.

However, the imposition of a whole life order in this case might be ground-breaking.

Whole life orders were introduced in 1983, and the power to impose them migrated from the Home Secretary to the judiciary following the CJA 2003. It is uncontroversially understood that whole life orders are reserved for the most heinous crimes of murder – those where the seriousness is exceptionally high; the debate is where we define the limit of that category. Is the murder of hundreds of people to serve an ideological cause within the category of exceptionally high seriousness? Yes, of course. Is the murder of one person in excessive self-defence in that same category? No, of course not.

Many cases have something to do with numbers, either in respect of the number of victims of a single instance of murder, or the number of murder convictions. Peter Sutcliffe, Rosemary West, Ian Brady – serial killers. Ian Birley, Russell Oliver, Christopher Halliwell – murderers convicted of a second murder.

Other cases involve the murders of children involving abduction or sexual or sadistic conduct and the murder of police and prison officers in the course of their duty. Other cases involve ideological motivation, such as the murder of Jo Cox MP in 2016.

However, the case of Wayne Couzens does not fit into any of these pre-established categories (categories which map onto Sch 21 para 2(2) SA 2020). That is not to say that the seriousness of his offence was not exceptionally high, but there was room for argument, and for a reasoned decision one way or the other. The touchpoint for the decision was that the use by a police officer of his office to kidnap, rape and murder a victim, abusing the coercive powers entrusted to him, is within the category of exceptionally high seriousness. Fulford LJ made a direct comparison between an offence of this kind and an ideologically motivated offence and considered them to be of equal seriousness.

Therefore, this case represents the imposition of a whole life order in a novel situation. There are two possible reasons for that: (1) an offence such as this was not specifically contemplated by the legislator, it had not previously been encountered in practice, and the decision does no more than demonstrate the importance of case-by-case decision-making; or (2) it is in fact an extension of the category and an example from within the CJS of the increased reliance on the punitive elements of life sentences.

Ultimately, I prefer the view that this is not an expansion, but a principled and case-specific decision, but identifying trends is crucial and any trend towards punitiveness within the CJS must be viewed against the backdrop of changes being imposed from the outside. The identification of a trend relies on a larger sample of cases being scrutinised over time, but we should always be alive to the possibility that a trend may be in its fledgling state.

It is understood that Couzens has lodged an application for permission to appeal against his sentence. If there is a substantive hearing, we may get further insight into how those at the top of the criminal judicial hierarchy envisage the use of whole life orders going forwards.