Events that occurred in March 2021 instituted a widespread heated debate both domestically and internationally as a consequence of the murder of Sarah Everard at the hands of police officer Wayne Couzens. It sparked a global women’s safety movement and erosion of public confidence in police protection, alongside sparking conversations around inequality, misogyny and victim-blaming. Further, it was also a rare case of a whole life order being handed down for a single murder. Up there in the list of the most famous names in criminal history with Myra Hindley, Peter Sutcliffe and Rosemary West, now stands the name Wayne Couzens. Putting aside societal, political and media considerations regarding this sentence, can interpretation of the statute and of sentencing provisions in this case be seen as opening the floodgates?

The Law

As a society and as a criminal justice system our views and standpoints on sentences, for the array of offences under the law, evolve over time. We have moved away from the death penalty and on to the whole life tariff which now stands as the most serious criminal penalty that can be imposed in the UK and it is a sentence reserved for perpetrators of the most serious and heinous crimes.

The current statute in which we locate the whole life tariff is that of Schedule 21 of the Sentencing Act 2020. An extract, taken directly from Fulford LJ Sentencing Remarks in the case of Wayne Couzens succinctly sums up this area of law as:

“cases that have a starting point of a whole life order are those when the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high. Paragraph 2(2) of the Schedule provides a list of cases that would normally fall in this category, namely those, first, involving the murder of two or more persons, where each murder involves a substantial degree of premeditation or planning, the abduction of the victim, or sexual or sadistic conduct; second, the murder of a child if involving the abduction of the child or sexual or sadistic motivation; third, the murder of a police officer or prison officer in the course of his or her duty; fourth, a murder done for the purpose of advancing a political, religious, racial or ideological cause, or, fifth, a murder by an offender previously convicted of murder.” [paragraph 16].

For the murder of MP Jo Cox in 2016, Thomas Mair received a whole life tariff, this being the first handed down in the case of a single murder. In that case, Mr Justice Wilkie’s Sentencing Remarks, and consideration therein of schedule 21 of the Criminal Justice Act 2003 (the relevant provision at the time), evidenced that the crime fell squarely within murder done for the purpose of advancing a political, racial and ideological cause; namely that of “violent white supremacism and exclusive nationalism most associated with Nazism and its modern forms”. We are yet to be informed of the factual matrix surrounding the recent murder of Sir David Amess in October 2021 by Ali Harbi Ali. However, indications when analysing the criminal charge of murder within the context of preparing acts of terrorism, highlight that again it is likely to attract the tariff within the same clause as the crime perpetrated by Thomas Mair.

There has never been a whole life term which does not come within the categories set out expressly in the relevant provisions. However, as was the case for Couzens, interpretation of the law saw his case in an entirely new light; “It is clear from the language of the schedule that this is not a closed list of cases. The use of the words “cases that would normally fall” into this category makes this clear” [paragraph 16]. The sentence was rationalised due to the misuse of the defendant’s role as a police officer and the serious aggravating features. So, for the courts and sentencing provisions for this crime specifically, this is the first time the tariff has been imposed for a single murder not committed in the course of a terror attack.

Fulford LJ, in acknowledging the inevitable undermining of public confidence in safeguarding by police, highlighted the potential breakdown of law and order. The police officer’s role misused in order to carry out the crimes against a lone victim was the context on which the crimes were interpreted to amount to equating to the seriousness as a murder carried out for the purpose of advancing a political, religious, racial or ideological cause. The situation does inflict harm to societal and democratic foundations, but it opens the tariff up to wider interpretations. However, was the sole consideration the abuse of power due to him being a serving police officer or has the sentence theoretically equated misogyny with terrorism in terms of seriousness? In the wake of the Sarah Everard murder, Boris Johnson refused to incorporate misogyny into the context of hate crime or make it a contributing factor in sentencing. Has the Government therefore been contradicted by the Judiciary? Would this sentence have been the same had the victim been a male?

Another consideration regarding this case and specifically the sentence passed is that of the reduction for a guilty plea. Counsel for defendants in criminal proceedings will advise their client that should they plead guilty they will be entitled to the appropriate credit (within the sliding scale of when the plea is entered) as a mitigating factor which will result in a reduction of their sentence. This is a provision of sentencing to show appreciation by the courts as it demonstrates cooperation and remorse, alongside saving the victim’s family and friends from enduring a trial. Couzens pleaded guilty to the offence before trial. For Defendants in preparation for entering a plea for murder, may this sentence serve as a deterrent for a guilty plea? For families and friends of victims to murder, some would argue that this sentence is fair and it is an example of justice served. Alongside perceptions as to when the death penalty was the correct punishment for certain crimes, the whole life tariff varies. In the aftermath of this case, however, will friends and families of victims in sentencing of those to a single murder perceive the whole life tariff as the only just and acceptable punishment? Will a life sentence with a minimum term seem an injustice for those cases where a whole life tariff is not imposed?

Conclusion

How far can this clause in the statute be interpreted and where, if any, do the boundaries lie? Considering the extensive publication and coverage of the murder, from the initial investigation through to the court proceedings, how much of a role did they play in this decision? Should this even be a consideration when we have full confidence in our Judges to be fair and impartial in passing carefully considered sentences? The aims of punishment are retribution, rehabilitation, deterrence and protection. Could this sentence be an indication of a move toward a more retributive stance in sentencing those pleading to or convicted of murder? Is it a change in the tide of judicial practice? It begs the question whether this case, specifically the sentence, opens the floodgates to more possibilities than first imagined.

For now, it seems, there are however more questions than answers. Although, over the next decade or so, we may start to see what this murder, and the sentence given for it, really means for the justice system and for wider implications of the same.

This article on the Whole Life Order: Have the Floodgates been Opened? was written by Hester Calder. To inquire about instructing Hester or any other member of our Criminal Team, please contact our clerking team via our switchboard on 01962 868 161 or email: clerks@pumpcourtchambers.com