11 December 2020

What is a Whole Life Order?

When imposing a life sentence (which is mandatory on conviction for murder but discretionary for other certain serious offences, like manslaughter and rape) a judge has two options: they must either specify a minimum term which must be served in full before release can first be considered by the Parole Board or, alternatively, impose a Whole Life Order (WLO) which determines that the offender is never eligible to be considered for release. Although WLOs have become more common in the last two decades, they are still imposed rarely and on 30 September 2020 only 0.9% of prisoners in custody serving a life sentence (62 out of a total life sentence prison population of 6,945) were serving a WLO (Ministry of Justice (2020) Offender Management Statistics, Prison Population: 30 September 2020, Table 1.9a). All 62 people serving a WLO had been convicted of at least one murder.

In McCann; Sinaga the Court of Appeal had to decide whether or not the two cases before the court merited a WLO. Following today’s Court of Appeal decision, it remains the case that all whole life sentence prisoners in England and Wales have been convicted of murder.

Whole Life Orders for non-murder offences

Since the imposition of the first whole life sentence in England and Wales in 1988, no prisoner has ever served such a sentence for any offence other than murder. In 2012, a WLO was imposed on Michael Roberts at the Crown Court for a series of very serious sexual offences but this was subsequently reduced to a minimum term of 25 years by the Court of Appeal. In that judgment, the Court of Appeal stated that: ‘The Whole Life Order is reserved for the most exceptional cases. Without suggesting that the court is prohibited from making a whole life order unless the defendant is convicted of at least one murder, such an order will, inevitably be a very rare event indeed’ (R. v Oakes and Others [2012] EWCA Crim 2435 at [102]).

In McCann; Sinaga the Court of Appeal considered whether a WLO was appropriate in two recent cases involving exceptionally serious sexual offending. In December 2019, Joseph McCann was sentenced to life imprisonment with a minimum term of 30 years having been convicted of seven counts of rape, one count of the rape of a child under 13, three counts of sexual assault, one count of causing a child under 13 to engage in sexual activity, seven counts of kidnap, 10 counts of false imprisonment, one count of attempted kidnap, and two counts of committing an offence with the intention of committing a sexual offence against a total of 11 victims. In January 2020, Reynhard Sinaga was also sentenced to life imprisonment with a minimum term of 30 years having been convicted of 136 counts of rape, eight counts of attempted rape, 14 counts of sexual assault, and one count of assault by penetration against a total of 48 victims. It is believed that these were the longest sentences ever imposed in England and Wales for sexual offences. These sentences have now been increased to minimum terms of 40 years.

What are the implications of this judgment?

This is a significant decision by the Court of Appeal as, by declining to impose WLOs in these exceptionally serious cases, the availability of a WLO for an offence other than murder remains purely theoretical. However, the Court of Appeal did, for the first time, specifically articulate examples of possible non-murder offences that might merit WLOs – serious acts of terrorism that do not result in a death.

Are there any other restrictions on the imposition of Whole Life Orders?

It is considered that, as a matter of law, a judge cannot impose a WLO on anyone who was under the age of 18 at the time of the offence, irrespective of the seriousness of that offence. At present, this prohibition also extends to people aged 18 to 20 at the time of the offence. However, following the sentencing in August 2020 of Hashem Abedi (who was sentenced to life imprisonment with a minimum term of 55 years following his conviction on 22 counts of murder for his involvement in the Manchester Arena bombing in 2017 when he was aged 20) the Government has proposed in its recent White Paper to make WLOs available to sentencing judges for offenders aged 18 to 20 at the time of the offence in ‘extremely exceptional’ cases (Ministry of Justice (2020), A Smarter Approach to Sentencing, p. 31).

Can a prisoner serving a Whole Life Order ever be released from prison?

The legal status of a WLO in England and Wales has been the subject of much scrutiny in recent years. There is, at least in theory, a release mechanism open to prisoners serving a WLO as the Secretary of State for Justice has the power, under section 30 of the Crime (Sentences) Act 1997, to release any life sentence prisoner on compassionate grounds in ‘exceptional circumstances’. Although this power has never been exercised in relation to a prisoner serving a WLO, its existence eventually convinced the European Court of Human Rights in 2017 (Hutchinson v the United Kingdom [2017] ECHR 57592/08) that WLOs were in fact ‘reducible’ (as there was the possibility of release) and therefore 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 full judgment is available here: McCann, Sinaga & Shah judgment