In September 2021, Wayne Couzens was 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, Fulford LJ, 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 (unless he successfully appeals his sentence).
Minimum tariffs 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 tariff that a defendant must serve before which they may be considered for parole, or make no such order i.e. 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, which identifies various starting point tariffs. It was immediately clear that only two starting points were potentially relevant in this case: a whole life order or 30 years.
Where the court considers that the seriousness of the offence (or the combination of offences) 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)). 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 on or 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)).
Where the court considers that the seriousness of the offence (or the combination of offences) 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)). 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)).
The Crown argued that the 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, and the numerous aggravating features. The defence argued that a starting point of 30 years with an uplift perhaps to 35 years, would be sufficient, particularly in light of the fact that this case did not neatly sit within one of the categories in Schedule 21 that suggest a whole life order.
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 …” (emphasis added), something clearly in the mind of Fulford LJ:
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) [paragraph 18 of the Sentencing Remarks].
Towards the end of careful and thoughtful sentencing remarks, Fulford LJ sentenced Wayne Couzens to a whole life order, taking account of the extensive aggravating factors 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 [paragraph 19 of the Sentencing Remarks].
There were various ways in which a whole life order might have been imposed within the statutory scheme. 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 could then have increased that 30 year minimum to a whole life order. That approach might have been potentially more immune to criticism as it would have constituted a rigid application of the statutory scheme.
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, 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 would allow any appeal. A core principle concerning whole life orders – emphasised by the Court of Appeal – is that the individual case should not be on the borderline, that is to say it should be clear that the harshest sentence in the jurisdiction is warranted (see for example R v Jones  2 Crim. App. R. (S.) 19, per Lord Philips CJ at paragraph 10). Whilst intuitively, many distinguished observers were of the view that a whole life order was amply justified, in such a case which did not clearly sit within paragraph 2(2) of Schedule 21 – indeed defence counsel submitted that there had never been a whole life order imposed in a case which did not fall within one of the statutory categories – close and cogent reasoning was required.
Fulford LJ’s conclusion that this offending was of “equal seriousness as a murder carried out for the purpose of advancing a political, religious, racial or ideological cause” did indeed provide a principled basis upon which to impose a whole life order. Even if the Court of Appeal disagrees with this particular principle, it is difficult to see how they might convincingly conclude that a finite minimum term ought to be applied in lieu.