R v Nicholas Prosper

For an offender aged 18 to 20, a whole life order is available only where the seriousness is exceptionally high even by the standard applicable to offences normally justifying such an order for an adult aged 21 or over. The court must compare the facts with adult whole-life cases and should not add a gloss to the statutory test. A whole life order remains a sentence of last resort. Age, a guilty plea, uncompleted intentions and relevant developmental or mental conditions may inform the assessment. Dangerousness is addressed by the life sentence, while the minimum term reflects punishment. On an Attorney General’s reference, the Court of Appeal should not interfere with a carefully reasoned sentence within the available range merely because it would have imposed a different sentence.

Following guilty pleas, the offender was sentenced by Cheema-Grubb J in the Crown Court at Luton for murdering his mother, 13-year-old sister and 16-year-old brother, and for associated firearm and bladed-article offences. He was aged 18 when the murders were committed. The judge imposed custody for life with a minimum term of 48 years and 177 days on each murder count, with concurrent sentences for the other offences.

The Solicitor General referred the sentences under section 36 of the Criminal Justice Act 1988, arguing that a whole life order was required under section 321(3)(c) of the Sentencing Act 2020. The central issue was whether the seriousness was exceptionally high even by the standard of cases warranting a whole life order for an adult aged 21 or over, and whether the sentence was unduly lenient.

The reference was refused. Leave was granted, but the sentences were not unduly lenient.

1. On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the Court of Appeal may increase a sentence only where it is unduly lenient. It is insufficient that the court would itself have imposed a higher sentence. A sentence is unduly lenient only if it falls outside the range reasonably open to the sentencing judge, applying all relevant factors, and non-intervention would affect public confidence in the administration of justice.
2. Under section 321(3)(c) of the Sentencing Act 2020, a whole life order for an offender aged 18 or over but under 21 requires the seriousness of the offence or combination of offences to be exceptionally high even by the standard of offences normally resulting in a whole life order for an adult. The statutory comparison must be made with the facts justifying an adult whole life order. No additional gloss, such as a double exceptionality test, should be added.
3. The court applied the principles in R v Stewart and Others [2022] EWCA Crim 1063; [2022] 4 WLR 86. A whole life order is a sentence of last resort for the few cases of the most extreme gravity. Doubt may indicate that a finite minimum term is appropriate, but it is only a potential indicator and is not determinative. A term of 30 years or more is already a very severe penalty.
4. A prosecution concession at first instance is no legal bar to a reference, as confirmed in R v Stewart [2016] EWCA Crim 2238; [2017] 1 Cr App R(S) 48. It may nevertheless be relevant. The judge was entitled to attach weight to the clear, reasoned and sustained prosecution position that a whole life order was not required. In the absence of an error of law or principle, the appellate court should be slow to interfere with her careful overall assessment.
5. The judge was entitled to consider the offender’s age, guilty pleas, the fact that his wider plans had not been carried out, and his autism and associated emotional and behavioural difficulties. Dangerousness was not relevant to the choice between a whole life order and a minimum term because it was addressed by the life sentence; the whole life or minimum term served the purpose of just punishment.
6. Although the offences were of the utmost gravity and a whole life order would undoubtedly have been merited had the offender been aged 21 or over, the judge was entitled to find that the enhanced exceptionality requirement was not met. The reference was therefore refused.

• Court of Appeal (Criminal Division) — On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, leave was granted but the reference was refused. The sentences were not unduly lenient.
• Crown Court at Luton — Cheema-Grubb J sentenced the offender on 19 March 2025 to custody for life with a minimum term of 48 years and 177 days on each murder count, with concurrent sentences for the associated offences.