L, R v

A whole-life order for a mandatory life sentence under section 269(4) of the Criminal Justice Act 2003 must be justified solely by the seriousness of the offence and any associated offending. It cannot be based on the offender’s future dangerousness. Public protection is secured by the life sentence and, after the minimum term, by the Parole Board.

For transitional cases, the court must first assess the minimum term under Schedule 21 and then reduce it where necessary so that it does not exceed the period likely to have been notified under the former Secretary of State’s practice. Mental disorder falling short of diminished responsibility may reduce culpability. Aggravating features already reflected in the starting point must not be counted twice.

The appellant was convicted at Teesside Crown Court of murder and sentenced to life imprisonment. The Recorder ordered under section 269(4) of the Criminal Justice Act 2003 that the early-release provisions should not apply.

The murder involved prolonged and sadistic violence. The appellant had a previous conviction for the manslaughter of his wife and a longstanding mental disorder. The jury had rejected diminished responsibility, but the psychiatric evidence remained relevant to culpability.

The appeal challenged the whole-life order. The central questions were whether the Recorder had wrongly relied on public protection, and what minimum term should instead be fixed under the statutory transitional regime for an offence committed before, but sentenced after, the 2003 Act came into force.

1. Appeal allowed in part. The Recorder’s whole-life order was quashed. A life sentence remained mandatory, but the court substituted a minimum period of 21 years and 172 days.

2. Under section 269(4) of the Criminal Justice Act 2003, the question was whether the offence’s seriousness justified withholding the early-release provisions. The Recorder had erred by treating the appellant’s danger to the public, especially to young women, as the decisive consideration. Following R v Sullivan and others [2004] EWCA Crim. 1762, public protection was secured by the life sentence itself and, after expiry of the minimum period, was a matter for the Parole Board.

3. The court applied the transitional method. It first assessed the appropriate period under Schedule 21, then applied paragraph 10 of Schedule 22 so that the specified period did not exceed that which the Secretary of State would probably have notified under the former practice.

4. The offence was not in the exceptionally high category for a whole-life starting point. It was, however, in the particularly high category with a 30-year starting point because of the prior manslaughter and the sexual or sadistic conduct. Those matters could not also be counted as separate aggravating factors. The appellant’s mental disorder, although insufficient for diminished responsibility, significantly reduced culpability. The Schedule 21 assessment produced 25 years, but the former-practice assessment produced 22 years.

5. Section 269(3)(b) required credit for 193 days spent on remand. The resulting specified minimum period was therefore 21 years and 172 days before eligibility for consideration for release by the Parole Board.

• Court of Appeal (Criminal Division) — allowed the sentence appeal to the extent of quashing the order that early-release provisions should not apply, and substituted a minimum period of 21 years and 172 days: [2005] EWCA Crim 802.
• Teesside Crown Court — convicted the appellant of murder, imposed life imprisonment, and made an order under section 269(4) of the Criminal Justice Act 2003.