Regina v Ian Stewart & Ors

A whole life order is a sentence of last resort. It is required only where the offender is aged 21 or over and the seriousness of the offence is exceptionally high, so that just punishment requires lifelong imprisonment. The court must apply Sentencing Act 2020, Schedule 21 flexibly. It must identify the starting point and then weigh aggravating and mitigating factors without double counting. If the court remains in doubt, a finite minimum term will normally be appropriate.

The assessment must concern the offence being sentenced and any statutory associated offences. A judge cannot create a new judicial category of whole-life offending. Exceptionally high seriousness may nevertheless arise, rarely, from the particular facts and aggravating features of a case outside Schedule 21 paragraph 2.

This conjoined judgment determined sentence appeals and Law Officers’ unduly lenient sentence references concerning five offenders.

• Stewart appealed a whole life order imposed for murdering his wife in 2010, after he had separately been convicted and sentenced for the later murder of his fiancée.
• Couzens appealed a whole life order for the kidnapping, rape and murder of Sarah Everard, committed through a grave misuse of his position as a serving police officer.
• The Solicitor General referred Monaghan’s 40-year minimum term for three murders and two attempted murders.
• Tustin and Hughes appealed aspects of their sentences for offences against Arthur Labinjo-Hughes, while the Attorney General referred their sentences as unduly lenient.

The central issue was the proper application of the whole life order and minimum-term regime in Sentencing Act 2020, Schedule 21, including totality, aggravation, mitigation and appellate intervention.

1. Whole life orders. A whole life order is reserved for the few cases of most extreme gravity. The court must assess the seriousness of the offence or statutory associated offences, apply Schedule 21 flexibly, select the appropriate starting point, and then consider aggravating and mitigating factors without double counting. A case outside the examples in paragraph 2 may, rarely, be exceptionally serious, but a court should assess the facts rather than formulate a new category of offending.
2. Stewart. The appeal was allowed. The later murder was not an associated offence under section 400, and paragraph 2(2)(e) did not apply because Stewart had not previously been convicted of murder when he committed the murder for which he was being sentenced. That murder, viewed alone, was particularly rather than exceptionally serious. The court could nevertheless adjust the minimum term to achieve just and proportionate total punishment, reflecting the existing life sentence for the later murder. The whole life order was quashed and replaced by life imprisonment with a 35-year minimum term from 9 February 2022.
3. Couzens. The appeal was dismissed. The correct initial starting point was 30 years for a single murder involving sexual conduct. However, the exceptional seriousness of the offence justified a whole life order. The defining feature was Couzens’ grotesque use of his police knowledge and status to facilitate the kidnapping, rape and murder, together with extensive planning, abduction, grave sexual conduct, suffering inflicted on the victim and concealment of her body. His guilty pleas did not alter the outcome once a whole life order was required.
4. Monaghan. The Solicitor General’s reference was allowed in part. A whole life order was not the only proper sentence, but the 40-year minimum term was unduly lenient. The three murders, two attempted murders, repeated intentions to kill, vulnerable victims, abuse of trust, planning, suffering, concealment and limited mitigation required a 48-year minimum term.
5. Tustin and Hughes. Tustin’s sentence was not unduly lenient and her out-of-time application for permission to appeal was refused. The antecedent protracted cruelty properly supported a 30-year starting point for Arthur’s murder, but did not make the case exceptionally serious. Hughes’ appeal was refused, but the Attorney General’s reference succeeded. His encouragement of grave violence, the real risk of death, breach of trust, Arthur’s vulnerability and the cruelty offences justified a substituted sentence of 24 years’ imprisonment.

• Court of Appeal (Criminal Division). In [2022] EWCA Crim 1063, the court allowed Stewart’s sentence appeal, dismissed Couzens’ appeal, allowed the reference concerning Monaghan’s minimum term, refused the reference concerning Tustin, and allowed the reference concerning Hughes.
• Crown Court. Stewart received a whole life order at Luton Crown Court; Couzens received a whole life order at the Central Criminal Court; Monaghan received life imprisonment with a 40-year minimum term at Preston Crown Court; Tustin received life imprisonment with a 29-year minimum term and Hughes received 21 years’ imprisonment at Birmingham Crown Court.