‘Reasoned’ justification

Umar Azmeh analyses the whole life order imposed upon police officer Wayne Couzens by Lord Justice Fulford for the murder of Sarah Everard.

Oct 27, 2021
Umar Azmeh

Metropolitan Police Service officer Wayne Couzens was recently sentenced to life imprisonment with a whole life order in accordance with section 321(3) of the Sentencing Act 2020 for the murder of Sarah Everard.

The sentencing Judge, Lord Justice Fulford, took account of the offences of kidnapping and rape in reaching the decision that the early release provisions contained within section 28 of the Crime (Sentences) Act 1997 would not apply to the defendant, meaning that he will never be released from custody (unless he successfully appeals his sentence).

Setting a minimum tariff for murder

When sentencing a defendant convicted of murder, a life sentence must be imposed under section 1 of the Murder (Abolition of Death Penalty) Act 1965. The sentencing judge must then fix a minimum tariff that a defendant must serve before which they may be considered for parole, ie, that the early release provisions are to apply to that defendant. Alternatively, the sentencing judge also has the option of making no such order, ie, a ‘whole life order’.

In determining what tariff applies to a defendant, judicial discretion in this area is constrained by Schedule 21 to the Sentencing Act 2020. Schedule 21 identifies various ‘starting point’ tariffs depending on the circumstances of the murder in question, which can then be adjusted upwards or downwards depending on the aggravating and mitigating circumstances of each individual case.

Where the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and the offender was aged 21 or over when the offence was committed, the starting point is a whole life order (paragraph 2(1) of Schedule 21). Schedule 21 sets out various cases that would normally be categorised as being of ‘exceptionally high’ seriousness: (a) the murder of two or more persons, where each murder involves either a substantial degree of premeditation or planning, the abduction of the victim, or sexual or sadistic conduct; (b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation; (c) the murder of a police officer or prison officer in the course of their duty where the offence was committed after 13 April 2015; (d) a murder done for the purpose of advancing a political, religious, racial or ideological cause; or (e) a murder by an offender previously convicted of murder (paragraph 2(2) of Schedule 21).

Where the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and the offender was aged 18 or over when the offence was committed, the starting point is 30 years (paragraph 3(1) of Schedule 21). Schedule 21 sets out various cases that would normally be categorised as being of ‘particularly high’ seriousness: (a) in the case of an offence committed before 13 April 2015, the murder of a police officer or prison officer in the course of his or her duty; (b) a murder involving the use of a firearm or explosive; (c) a murder done for gain; (d) a murder intended to obstruct or interfere with the course of justice; (e) a murder involving sexual or sadistic conduct; (f) the murder of two or more persons; (g) a murder aggravated by racial or religious hostility or by hostility related to sexual orientation; (h) a murder aggravated by hostility related to disability or transgender identity where the offence was committed on or after 2 December 2012; or (i) a murder falling within the whole life order bracket where the offender was aged under 21 when the offence was committed (paragraph 3(2) of Schedule 21).

The other starting points, namely 25 years where the offence was committed by an offender who took a weapon to the scene intending to commit any offence or to have it available to use as a weapon, and did use it to commit murder, or 15 years in any other case, are not relevant for the purposes of this piece.

The sentencing

It was immediately clear that only two starting points were potentially relevant in this case: either a whole life order or 30 years.

The Crown argued that this case ought to result in a whole life order given the seriousness of the offences, the fact that the offender was a serving police officer, coupled with the numerous aggravating features.

The defence argued that a starting point of 30 years with an uplift to 35 years would be sufficient given that whole life tariffs are unusual, particularly in light of the pleas of guilty and the fact that this case did not neatly sit within one of the categories in Schedule 21 that suggest that a whole life order ought to be imposed.

It is important to note at this juncture that the category of case that may be classed as of ‘exceptionally high’ seriousness within Schedule 21 is not a closed class: paragraph 2 of Schedule 21 notes that “cases that… would normally fall within sub-paragraph (1)(a) include…” something clearly in the mind of Fulford LJ when reaching his decision: “The Schedule clearly has the objective of identifying the types or categories of case which, as a matter of principle, are in themselves so serious that a whole life order ought to be the starting point.

“I anticipate that only very rarely will situations arise which merit this starting point but which were not included in paragraph 2(2). But the legislators would not have been able to describe every situation that might arise when an offender palpably needs to be treated in the same way as those expressly included in paragraph 2(2).

“I would stress, therefore, that I have adopted the approach that a judge should only pass a whole life term in a case such as the present if he or she is confronted with a new category of exceptionally serious case that plainly calls to be treated in this way and the decision is, therefore, not a borderline one. Otherwise, a lengthy minimum tariff term will suffice” [paragraph 18 of the Sentencing Remarks].

Towards the end of careful and thoughtful sentencing remarks, closely and compellingly reasoned, Fulford LJ sentenced Couzens to a whole life tariff, taking account of the extensive aggravating factors of the offending, including the significant planning and premeditation, the abduction, the most serious sexual conduct, the mental and physical suffering inflicted upon Sarah Everard, and the attempt to conceal and destroy her body.

He noted: “The most important question in this sentencing exercise, therefore, revolves around a question of principle: if a police officer uses his office to kidnap, rape and murder a victim, is the seriousness of the offence exceptionally high, such that it ought to be treated in the same way as the other examples set out in paragraph 2(2). In my judgment the police are in a unique position, which is essentially different from any other public servants. They have powers of coercion and control that are in an exceptional category. In this country it is expected that the police will act in the public interest; indeed, the authority of the police is to a truly significant extent dependent on the public’s consent, and the power of officers to detain, arrest and otherwise control important aspects of our lives is only effective because of the critical trust that we repose in the constabulary, that they will act lawfully and in the best interests of society. If that is undermined, one of the enduring safeguards of law and order in this country is inevitably jeopardised.

“In my judgment, the misuse of a police officer’s role such as occurred in this case in order to kidnap, rape and murder a lone victim is of equal seriousness as a murder carried out for the purpose of advancing a political, religious, racial or ideological cause. All of these situations attack different aspects of the fundamental underpinnings of our democratic way of life. It is this vital factor which in my view makes the seriousness of this case exceptionally high” [paragraph 19 of the Sentencing Remarks].

Analysis/comment

There were various ways in which a whole life order might have been imposed within the statutory scheme in this case.

By way of example, the offence may have been categorised as a murder involving sexual or sadistic conduct, under paragraph 3(2)(e) of Schedule 21, with a starting point of 30 years: the extensive, significant and grave aggravating factors (briefly noted above) could then have aggravated that 30-year minimum tariff to a whole life order. That approach might have been potentially more immune to criticism from lawyers or academics, as it would have constituted a rigid application of the statutory scheme.

However, Fulford LJ took a more bold and definitive approach in noting that in his view, this murder was of “equal seriousness as a murder carried out for the purpose of advancing a political, religious, racial or ideological cause”, with a whole life order thereby justified.

If this sentence is appealed to the Court of Appeal – and it would be no surprise if it were – given Fulford LJ’s seniority as the most experienced specialist criminal judge in the country (it is very unusual for a Lord Justice of Appeal to preside over any proceedings in the Crown Court; in cases such as the instant case, the normal practice would have been for a High Court Judge to have presided), any appeal ought to be heard by the Lord Chief Justice (perhaps alongside the President of the Queen’s Bench Division; potentially sitting with Lord Justice Holroyde or another experienced criminal judge).

Given the novel reasoning used to impose the whole life order, it would equally be of little surprise if leave to appeal against sentence were granted.

However, it is difficult to see, now that the full, horrific extent of these crimes have been made public, how the Court of Appeal, hearing any appeal against sentence, would allow that appeal. Successive Lord Chief Justices have agreed that where a whole life order is called for, the individual case in question will not be on the borderline (see for example R v Jones [2006] 2 Crim. App. R. (S.) 19, per Lord Philips CJ at paragraph 10).

While intuitively it appeared that a whole life order was amply justified in this case, if one was to be imposed, it was critical that sound reasoning applied given that the case did not neatly fit within the examples enumerated in paragraph 2(2) of Schedule 21 (indeed, defence counsel submitted that there had never been a whole life order imposed which had not come within the categories set out expressly in Schedule 21): what is evident is that in this case, strong and clear reasoning was lucidly set out within the Sentencing Remarks.

The only question may be whether the Court of Appeal agrees that this offending was of “equal seriousness as a murder carried out for the purpose of advancing a political, religious, racial or ideological cause”. However, even if they disagree with this particular line of reasoning, it is difficult to see how they might cogently conclude that a finite minimum term ought to be applied in lieu.

Umar Azmeh is a solicitor at BCL Solicitors LLP, specialising in business crime, financial crime, and regulatory investigations. He has significant experience of criminal investigations involving money laundering and bribery, and has worked with clients on sanctions, tax, and proceeds of crime issues. He has expertise in commercial litigation, including civil fraud with an international dimension, and particularly where there is a criminal aspect. He has also advised both corporations and individuals on potential liability under the Proceeds of Crime Act 2002, the Fraud Act 2006, and the Bribery Act 2010, which includes drafting relevant policies for corporate clients.

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