Bieber (Aka Coleman) v R.

A whole-life order is not, simply when imposed, contrary to Article 3 where domestic law provides a means by which release may be considered if continued detention becomes inhuman or degrading. The question should then be raised when the prisoner contends that further detention, in light of time served and progress in custody, breaches Article 3.

A whole-life order is reserved for offending of exceptionally high seriousness where just punishment requires imprisonment for life. Schedule 21 of the Criminal Justice Act 2003 must not be applied mechanically. Features which establish the statutory starting point must not then be counted again as aggravating factors.

The appellant was convicted at Newcastle upon Tyne Crown Court before Moses J of murdering PC Ian Broadhurst, attempting to murder two other police officers, and firearms offences. He received the mandatory life sentence for murder with a whole-life order.

Permission to appeal against conviction was refused. Permission to appeal against sentence was granted. The appeal raised whether a whole-life order was compatible with Article 3 of the European Convention on Human Rights and whether the facts justified that order under Schedule 21 to the Criminal Justice Act 2003.

1. The appeal against sentence was allowed. The whole-life order was quashed and a minimum term of 37 years, less time spent on remand, was substituted.

2. Applying the approach in Kafkaris v Cyprus, the court held that a life sentence does not breach Article 3 merely because the offender may in practice remain imprisoned for life. The material question is whether the sentence is reducible in law and in fact. A whole-life order imposed because punishment and deterrence require lifelong imprisonment was not, at the point of sentence, shown to violate Article 3.

3. Section 30 of the Crime (Sentences) Act 1997 gave the Secretary of State power to release a life prisoner in exceptional compassionate circumstances. The court considered that, if continued detention were to become inhuman or degrading, that power could be exercised compatibly with the Convention. Accordingly, a prisoner should advance an Article 3 challenge when further detention is said to have become unlawful, rather than when the whole-life order is imposed.

4. The sentencing judge had been entitled to begin with the 30-year starting point because the murder was of a police officer acting in the course of duty and involved a firearm. The statutory guidance was not to be used mechanically, and those starting-point features could not be counted again as aggravation. The attempted murders of the other officers and the execution-style second shot were grave aggravating matters, but the entire episode occurred within seconds and did not make the offending exceptionally serious so as to justify imprisonment for life.

5. A seven-year increase above the 30-year starting point properly reflected the aggravating features. The appellant was therefore to serve 37 years before release on licence could be considered.

• Court of Appeal (Criminal Division): Sentence appeal allowed in [2008] EWCA Crim 1601 . The whole-life order was replaced with a 37-year minimum term.
• Crown Court at Newcastle upon Tyne: Before Moses J, the appellant was convicted of murder, two attempted murders and firearms offences. A whole-life order was imposed for murder.