Barley, R v

A whole life order is discretionary and reserved for the rare case in which, after considering all aggravating and mitigating circumstances, just punishment and retribution require imprisonment for the offender’s whole life. A lengthy finite minimum term remains a very severe sentence and may be appropriate where a whole life order is not necessary.

Under Criminal Justice Act 2003, the minimum term for murder is the punitive and retributive part of a life sentence. Public protection is secured separately through the Parole Board’s release assessment and lifelong licence. Where concurrent life sentences arise from associated offending, the minimum term must reflect the combined gravity of the offending.

R v Barley concerned an Attorney General’s reference under section 36 of the Criminal Justice Act 1988. At Birmingham Crown Court, the offender pleaded guilty to the murders of Tracy Wilkinson and her 13-year-old son, Pierce, and to the attempted murder of Peter Wilkinson. He received life sentences for murder with a 30-year minimum term, and a discretionary life sentence with a 10-year minimum term for attempted murder.

The Solicitor General contended that the sentences were unduly lenient. He primarily sought a whole life order. Alternatively, he submitted that the murder minimum term failed to reflect the gravity of the combined offending. The central issues were whether a whole life order was necessary and, if not, whether the minimum term should be increased.

1. The court granted leave and allowed the Attorney General’s reference. It upheld the judge’s conclusion that a whole life order was not required, but held that the 30-year minimum term for the murder sentences was unduly lenient.

2. Section 269 and Schedule 21 of the Criminal Justice Act 2003 require the court to assess the seriousness of the murder or associated offending, select the appropriate starting point, and then adjust it for relevant aggravating and mitigating factors. A minimum term is the punitive and retributive element of a life sentence. It must not be increased for public protection, since release depends on the Parole Board’s assessment and any release remains subject to lifelong licence.

3. The court applied the principles in R v Jones and Ors [2006] 2 Cr App R(S) 19 and R v Oakes and Ors [2013] QB 979. A whole life order is a discretionary sentence of last resort. It is appropriate only where the offending is exceptionally serious and just punishment and retribution require imprisonment for life. The sentencing judge was entitled to find that, despite the dreadful crimes, this threshold was not met. The court also rejected the submission that an equivalent whole-life approach was required for attempted murder.

4. The original minimum term gave insufficient weight to the strong planning and premeditation, the invasion of the victims’ home, the grave breach of trust, the brutal attacks, the victims’ terror, the murder of a child, and the combined gravity of two murders and an attempted murder. The offender’s youth had already received full weight in the decision not to impose a whole life order. His personality disorder and early guilty pleas carried only limited further weight.

5. The proper minimum term before credit for guilty pleas was 40 years. Full permissible credit of five years was maintained. The court quashed the sentences on the two murder counts and substituted life sentences with a minimum term of 34 years and 178 days from the date of sentence. The attempted-murder sentence remained unchanged.

• Court of Appeal (Criminal Division) Granted leave under section 36 of the Criminal Justice Act 1988 and allowed the Attorney General’s reference. It substituted increased minimum terms on the murder counts.

• Crown Court at Birmingham On 4 October 2017, imposed life imprisonment with a 30-year minimum term for each murder and a discretionary life sentence with a 10-year minimum term for attempted murder.