Whole Life Orders

When imposing a life sentence (discretionary or mandatory), the court must make either a whole life order or otherwise fix a minimum term that the offender must serve in custody before the Parole Board can consider whether to release the offender.

A Whole Life Order is the most severe sentence that is available. There has been an increase in the attention paid to them due to the recent cases of Couzens and Letby.

It is an order which means that the release provisions are not to apply to the offender, the effect is that the Defendant will never be released from custody. A Whole Life Order will only be appropriate where the offence, or the combination of the offence and one or more offences associated with it, is so serious that a Whole Life Order is justified, regardless of the future risk that an offender may pose.

There is an increasing amount of case law in this area. McCann and Sinaga are two cases referred to the Court of Appeal by the Attorney General to seek whole of life orders in respect of two of the most serious campaigns of rape to have been tried in England and Wales.

While the Court of Appeal noted that a whole life term may be attached to a discretionary life sentence in cases such as these, it held that there is a principled reason for reserving the most serious sentences to cases of murder, save in the most exceptional circumstances and that a determinate term of appropriate length would meet the requirements of retribution and punishment. The court increased the minimum term from 30 to 40 years' imprisonment in each case. This demonstrates that sentences of this type will ordinarily be restricted to sentencing defendants who have been found guilty (or in the case of Couzens pleaded guilty) to an offence of murder.

Whole of life orders will be made where an offender is over 21 at the time of the offence and the offence, or the combination of the offence and one or more offences associated with it, was so serious in and of its own account that incarceration until the end of the offender’s life is justified, irrespective of the future risk the offender may pose.

Cases which merit a Whole Life Order have generally included the following:

• the murder of two or more persons where each murder involved a substantial degree of planning or the abduction of the victim, or sexual or sadistic conduct
• the murder of a child involving their abduction or otherwise sexual or sadistic motivation
• the murder of a child involving a substantial degree of premeditation or planning (in respect of offences committed on or after 28 June 2022)
• the murder of a police officer or prison officer in the course of his or her duty
• murder for the purposes of advancing a political, religious, racial or ideological cause, or
• a murder committed by an offender who has previously been convicted of murder

A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of their life.

In four joined cases, the Court of Appeal reiterated the principles to be applied when determining whether to impose a "whole life" order pursuant to the Sentencing Act 2020 Pt 10 s.321(3)(b) and Sch.21 following a conviction for murder.

The same approach applies to sentencing as in any other matter, where the seriousness of an offence is “exceptionally high” the starting point will be a whole life order. However, where it is particularly high the starting point will be a 30 year minimum term. This is the approach that a Judge should take.

Each case will be fact specific and even an offence which does not contain the Para 2 criteria may justify a whole life order, for example the case of Couzens which involved the rape, abduction and murder of a young girl by a serving police officer justified a whole life order. Of those five cases heard by the Court of Appeal, only Couzens’ whole life order remained.