Christopher Adolphus Forbes, Re

A whole life order is a sentence of last resort, reserved for offences of the most extreme gravity. Where the statutory starting point is a whole life order, the court must consider aggravating and mitigating features before deciding whether that sentence remains necessary. Personal mitigation, including the additional hardship caused by imprisonment far from an offender’s family, may be relevant. It does not reduce the seriousness of the offence. In a case involving two murders with sexual or sadistic conduct and substantial planning, premeditation and abduction, that hardship did not justify replacing a whole life order with a minimum term.

The Secretary of State referred the case under section 273 of the Criminal Justice Act 2003. The claimant was serving two life sentences imposed in the Turks and Caicos Islands for murder and had been transferred to England and Wales because of prison capacity. The court had to decide whether to make a minimum term order or a whole life order under section 321 of the Sentencing Act 2020.

The claimant relied principally on the hardship of imprisonment more than 4,000 miles from his family, together with his previous good character and difficult childhood.

1. Whole life orders. A whole life order is a sentence of last resort. It is reserved for cases of the most extreme gravity and is appropriate only where required to secure just punishment. If there is doubt whether that standard is met, a minimum term order is likely to be appropriate.
2. Statutory starting point. The case involved two murders, each involving sexual conduct, and the offender was over 21 when the offences were committed. It therefore fell within paragraph 2 of Schedule 21 to the Sentencing Act 2020 and was of exceptionally high seriousness. The starting point was a whole life order.
3. Aggravating and mitigating features. The murders also involved sadistic conduct, substantial premeditation and planning, abduction, concealment of the bodies, and taunting of the police. The claimant’s previous good character and difficult childhood were relevant but not weighty mitigating features. The additional hardship caused by transfer to England and Wales, including the practical difficulty of family visits and communication, was significant personal mitigation. Following the approach in Douglas [2019] EWHC 3018 (QB), that hardship could be taken into account. It did not reduce the seriousness of the offences.
4. The mitigating features, considered cumulatively, did not outweigh the aggravating features or make the difference between a whole life order and a minimum term order. A whole life order was therefore imposed, with the consequence that the early release provisions did not apply and the claimant would remain in custody for life.

The Secretary of State referred the case to the High Court under section 273 of the Criminal Justice Act 2003. The court made a whole life order.