Andrews, R. v

A whole life order is a penalty of last resort. It may be imposed only where the seriousness of the offending is exceptionally high and just punishment requires imprisonment for the offender’s natural life. Risk to the public is not a criterion for setting the minimum term or for imposing a whole life order. Risk governs whether a life sentence is necessary and whether release is safe.

Although there is no absolute bar to a whole life order for non-homicide offending, the existing practice of the Court of Appeal makes it a very rare outcome. The sentencing court must assess all relevant circumstances and apply the exceptional-seriousness test. Under Powers of Criminal Courts (Sentencing) Act 2000, the minimum term is fixed by the punitive and deterrent seriousness of the offending, with appropriate credit for a guilty plea and time spent on remand.

The appellant pleaded guilty at the Crown Court to six counts of rape, kidnapping, causing grievous bodily harm with intent, false imprisonment and assault occasioning actual bodily harm. The offences involved prolonged sexual violence, detention and serious physical injury to one victim.

On 18 May 2012, Woolwich Crown Court imposed concurrent life sentences and, under section 82A(4) of the Powers of Criminal Courts (Sentencing) Act 2000, directed that the early-release provisions should not apply. That produced a whole life order. The judge also purported to impose no separate penalty for breach of a violent offender order.

The appellant challenged the whole life order as excessive and wrong in principle. The central issue was whether public risk could justify a whole life order, and whether the seriousness of this non-homicide offending met the exceptional threshold for that penalty.

1. Appeal allowed. The court retained the life sentences but quashed the whole life orders. It substituted a minimum term of 12 years less 237 days spent on remand.
2. The sentencing judge had wrongly treated the appellant’s continuing danger to the public as a reason for a whole life order. Under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, risk may justify a discretionary life sentence and remains material to any eventual release decision. The tariff, however, is fixed by punishment and deterrence according to the seriousness of the offending.
3. A whole life order is reserved for offences of exceptionally high seriousness, where just punishment requires imprisonment for life. The court applied the principles in R v Jones [2006] 2 Cr App R(S) 19 and R v Oakes & Ors [2013] 2 Cr App R 22. It was a last-resort penalty, normally appropriate only where the exceptional character of the case was clear and beyond doubt.
4. There was no absolute legal bar to a whole life order for a non-homicide offence. Nevertheless, the court’s practice had been against such an order in that context. The analysis in R v John Taylor [2006] EWHC 2944 (QB) did not alter that position. The court also applied the caution in R v Reynolds [2014] EWCA Crim 2205 that factual comparisons cannot replace a detailed assessment of all relevant circumstances.
5. The offences were extremely grave and the appellant presented an extreme continuing risk. However, a principled assessment of seriousness did not meet the exceptional threshold for a whole life order. The court assessed a notional determinate term of 30 years, reduced it by 20% for the guilty pleas, and divided the result by two to fix the minimum term.
6. The Crown Court had no jurisdiction to deal with the alleged breach of the violent offender order because no indictment had been lodged and no arraignment had occurred. That order was quashed. The complaint about the concurrent five-year sentence for the section 47 offence was academic and no alteration was made.

Expiry of the minimum term permits consideration for release only. It does not entitle the appellant to release unless the relevant authorities are satisfied that it is safe.

• Court of Appeal (Criminal Division): Granted leave and an extension of time, then allowed the appeal against the whole life orders: [2015] EWCA Crim 883.
• Woolwich Crown Court: On 18 May 2012 imposed concurrent life sentences and directed, under section 82A(4) of the Powers of Criminal Courts (Sentencing) Act 2000, that the early-release provisions should not apply.