Bamber, R v

A whole life order imposed judicially for an exceptionally grave murder may represent a just and proportionate punishment. It does not thereby breach article 3 of the European Convention on Human Rights, even if release is not expected.

A review under Criminal Justice Act 2003, Schedule 22 cannot increase an existing prisoner's notified minimum term or whole life tariff. The review may reduce or maintain the existing position, but cannot make it more severe. A reviewing judge must reach an independent conclusion, although that conclusion may coincide with earlier views of the Lord Chief Justice and Secretary of State. Whole life orders remain rare and are reserved for the most extreme cases.

The applicant was convicted in 1986 of five planned murders and received the mandatory sentence of life imprisonment. The trial judge recommended a minimum period of 25 years, while the Lord Chief Justice recommended that he should never be released. The Secretary of State subsequently imposed a whole life tariff.

Following the transfer of tariff-setting responsibility to the judiciary under the Criminal Justice Act 2003, Tugendhat J reviewed the tariff and ordered that the early release provisions should not apply. The applicant challenged that order on articles 3 and 7 grounds and as excessive. The issue was whether the whole life order was lawful and justified.

1. Application refused. Tugendhat J was entitled to order, under Schedule 22, that the early release provisions should not apply. The resulting whole life order was neither wrong in principle nor manifestly excessive.

2. At the time of conviction, section 1 of the Murder (Abolition of Death Penalty) Act 1965 imposed mandatory life imprisonment. Recommendations by the trial judge and Lord Chief Justice as to the minimum period were advisory. Drake J's recommendation of 25 years and Lord Lane's recommendation that the applicant should never be released were therefore separate recommendations available to the Secretary of State. Lord Lane's additional words could not sensibly be read as agreement with the 25-year recommendation.

3. The Court was bound by R v Bieber [2008] EWCA Crim 1601 and R (on the application of Wellington) [2008] UKHL 72. Those authorities established that a whole life order judicially imposed for punishment and deterrence in an exceptionally serious case was not, by reason of its severity, incompatible with article 3. Kafkaris v Cyprus did not assist the applicant because the Cypriot mandatory-life regime differed materially from the discretionary and exceptional whole-life regime in England and Wales.

4. Article 7 was not infringed. The Schedule 22 review process expressly prevented disadvantage: the term to be served could be reduced or maintained, but could not be increased or extended. The reviewing judge was not bound to give primacy to historic judicial recommendations over the statutory considerations.

5. A judge must decide the review independently. The fact that Tugendhat J reached the same conclusion as the Lord Chief Justice and Secretary of State did not show that he had improperly deferred to either. Whole life orders should be rare and reserved for the most extreme cases; the planned killing of five family members, including two children, for financial gain and with a sophisticated attempt to shift blame, justified that penalty.

• Court of Appeal (Criminal Division): The present application against Tugendhat J's whole life order was refused.

• High Court: In 2008, Tugendhat J reviewed the applicant's notified whole life tariff under Schedule 22 to the Criminal Justice Act 2003 and ordered that the early release provisions should not apply.

• Court of Appeal (Criminal Division): Following a reference by the Criminal Cases Review Commission, the applicant's murder convictions were upheld in 2002: (2002) EWCA Crim 2912.

• Crown Court at Chelmsford: In 1986, the applicant was convicted of five murders and received mandatory life sentences.