Oakes & Ors v R

A whole life order under Schedule 21 to the Criminal Justice Act 2003 is compatible with Article 3 of the European Convention of Human Rights where it is imposed judicially, after proper consideration of mitigation, for criminality of exceptionally high seriousness. It is a discretionary sentence of last resort, not an automatic consequence of listed aggravating features.

The minimum term serves punishment and retribution. It must be assessed separately from the need for public protection. A sentencing court may make findings about the offence of conviction, but may not aggravate sentence by treating a defendant as guilty of a separate offence which he denies and of which he has not been convicted.

The court, specially constituted, heard five appeals concerning minimum terms imposed with mandatory or discretionary life sentences. David Oakes and Danilo Restivo had received whole life orders for murder. Michael Roberts and David Simmons had received whole life orders for grave sexual offending. Kieran Stapleton had received a 30-year minimum term for murder.

The common issues were whether whole life orders were compatible with Article 3, how Schedule 21 to the Criminal Justice Act 2003 should be applied, and whether the sentencing judge in Restivo’s case could treat an unconvicted Italian murder as aggravation. Restivo’s earlier application for leave to appeal against conviction had been refused: [2012] EWCA Crim 1848.

1. The appeals were allowed in part. Oakes’s whole life order and Stapleton’s 30-year minimum term were upheld. Restivo’s, Roberts’s and Simmons’s whole life orders were quashed and replaced respectively by minimum terms of 40 years, 25 years and 10 years. Simmons was granted an extension of time to appeal.

2. Article 3 did not prevent a court from imposing a whole life order. Paragraph 4 of Schedule 21 to the Criminal Justice Act 2003 permits, but does not require, that order where seriousness is exceptionally high. A whole life order is reserved for the rare case in which, after all aggravating and mitigating factors have been weighed, a finite term cannot provide just punishment and retribution. The Schedule is not a sentencing straightjacket and must not be applied mechanically.

3. For a discretionary whole life order imposed after proper consideration of mitigation, an Article 3 question does not arise merely on imposition. It may arise later if continued detention can no longer be justified by a legitimate penological purpose and the sentence is irreducible in law and practice. The statutory scheme was therefore compatible with Article 3.

4. A minimum term is the punitive element of a life sentence. It is distinct from the life sentence’s public-protection function. Dangerousness may justify a discretionary life sentence, but it cannot itself justify a whole life minimum term.

5. A sentencing judge must respect the jury’s verdict or the accepted plea. The judge may assess the gravity of the offence of conviction and make findings about its ingredients. Subject to recognised situations such as admitted offences or sample counts, the judge may not increase sentence by finding that the offender committed a distinct offence which was neither admitted nor proved by a verdict. Accordingly, Restivo’s alleged murder in Italy could not aggravate his sentence for the English murder. Once that error was removed, the remaining exceptionally grave features justified a 40-year minimum term, but not a whole life order.

• Court of Appeal (Criminal Division): Oakes’s and Stapleton’s sentence appeals were dismissed. Restivo’s, Roberts’s and Simmons’s sentence appeals succeeded to the extent of substituting finite minimum terms for whole life orders.
• Crown Court: Oakes was convicted at Chelmsford Crown Court on 11 May 2012 and received a whole life order. Stapleton was convicted at Manchester Crown Court on 26 July 2012 and received a 30-year minimum term. Restivo was convicted at Winchester Crown Court on 29 June 2011 and received a whole life order. Roberts was convicted at Southwark Crown Court on 20 December 2011 and sentenced on 12 January 2012 to discretionary life sentences with a whole life minimum term. Simmons pleaded guilty on 17 February 2004 and was sentenced on 9 December 2004 to life imprisonment without a specified lower minimum term.