McLoughlin, R. v

A whole life order is compatible with Article 3 where it represents just punishment for an offence of exceptionally high seriousness. The statutory power of exceptional compassionate release under Crime (Sentences) Act 1997 must be exercised compatibly with Article 3. It is not confined by the restrictive criteria in the Lifer Manual.

The Secretary of State must consider all relevant exceptional circumstances and give compassionate grounds a wide, Convention-compatible meaning. A reasoned decision remains subject to judicial review. This provides a whole life prisoner with a possibility of release if the punishment, though originally just, later ceases to be justifiable. Whole life orders remain rare and require detailed consideration of the individual case under Criminal Justice Act 2003.

The court considered a reference by the Attorney General concerning Ian McLoughlin and an appeal by Lee William Newell. Both offenders had committed a second murder while serving a life sentence for an earlier murder.

In McLoughlin’s case, the sentencing judge imposed a minimum term of 40 years after concluding that the Grand Chamber decision in Vinter v United Kingdom prevented a whole life order. The Attorney General contended that this was an error of law and made the sentence unduly lenient.

Newell appealed against a whole life order imposed for a planned prison murder. The central issue was whether the domestic whole life order regime, including release under section 30, was compatible with Article 3 and, if so, whether each offender’s case required a whole life order.

1. The Attorney General’s reference was allowed. McLoughlin’s minimum term of 40 years was quashed and replaced by a whole life order. Newell’s appeal was dismissed.

2. Parliament was entitled, consistently with Article 3 of the Convention, to permit a whole life order where an offence is so heinous that lifelong imprisonment is the just punishment. The sentencing function under Criminal Justice Act 2003 is distinct from the later question whether continued detention remains justified.

3. The court accepted that Article 3 requires both a prospect of release and a possibility of review. It held, however, that the domestic law supplied both through section 30 of the Crime (Sentences) Act 1997. The court followed R v Bieber [2009] 1 WLR 223 and reaffirmed the conclusion reached in R v David Oakes and others [2012] EWCA Crim 2435.

4. Section 30 requires the Secretary of State to consider whether exceptional circumstances arising after sentence justify compassionate release. The Lifer Manual cannot fetter that statutory discretion or restrict consideration to its listed criteria. “Compassionate grounds” has a wide meaning and must be read compatibly with Article 3. The decision must be reasoned and is amenable to judicial review. Accordingly, the court disagreed with the Grand Chamber’s conclusion that the domestic law was insufficiently certain.

5. Under Schedule 21, a whole life order is available only where seriousness is exceptionally high and just punishment requires it. McLoughlin’s second murder, committed during a robbery while he was serving a life sentence, together with his previous murder and manslaughter convictions, met that threshold. Newell’s premeditated second murder in prison, committed while serving a life sentence and without mitigation, also met it. The court stressed that whole life orders require an individual assessment and will remain rare.

• Court of Appeal (Criminal Division) In [2014] EWCA Crim 188, the court allowed the Attorney General’s reference in McLoughlin’s case, quashed the 40-year minimum term and imposed a whole life order. It dismissed Newell’s appeal against his whole life order.
• Crown Court Sweeney J sentenced McLoughlin to life imprisonment with a 40-year minimum term. Jeremy Baker J, sitting at the Crown Court at Leamington Spa, sentenced Newell to life imprisonment with a whole life order.