Whole Life Orders

What is a Whole Life Order?

The Whole Life Order (WLO) is the single most severe punishment in English criminal law. A WLO means that the offender will spend the rest of their life in prison, with no minimum term and no chance of early release. Where a mandatory life sentence has been imposed, the courts are usually required to state the minimum term that the prisoner has to serve before being considered for parole. However, in the most serious of offences, this early release provision is not applied and a whole life order is instead imposed in truly exceptional circumstances.

Introduced for use by the Home Secretary in 1983 (known then as whole life tariffs) and extended to judges by the Criminal Justice Act 2003, the WLO is reserved for the most heinous crimes. As of June 2021, there was only around 60 whole-life prisoners in England and Wales including some of the UK’s most prolific serial-killers, terrorists, and murderers.

How is a WLO different to a life sentence?

Life sentences differ from a WLO in that they provide for the release of the offender from prison after service of their ‘minimum term’ as set by the judge. After this time, the offender may be released if the Parole Board consider that their imprisonment is no longer necessary for the protection of the public. After release, the offender remains on licence for the rest of their life and may be recalled to prison if they breach any of the conditions of their release. In practical terms, those sentenced to life spend an average of 16.5 years in prison. Conversely, those sentenced to a WLO can never be released by this Parole Board mechanism.

When are Whole Life Orders imposed?

The imposition of a WLO requires the convicted to be over 21 and the seriousness of the offence to be “exceptionally high”. The Sentencing Code gives a list of specified offences which would normally meet this criterion, which are:

· The murder of two or more persons, involving a substantial degree of premeditation, abduction of the victim, or sexual or sadistic conduct

· The murder of a child if involving the abduction of the child or sexual or sadistic motivation

· The murder of a police officer or prison officer in the course of duty or after 13 April 2015

· A murder done for the purpose of advancing a political, religious, racial or ideological cause.

· A murder by an offender previously convicted of murder.

If the offender commits one of the above crimes on this list, then the starting point is a WLO. If the crime is not regarded as serious enough to warrant a WLO but the seriousness is still particularly high, then it will not warrant a WLO, but rather a life sentence, which are mandatory for a murder conviction, with a minimum term of 30 years as a starting point. This would also be the case if the offender had committed a crime of exceptionally high seriousness but was aged between 18 and 21 year.

An offender who had not committed one of the specified crimes may still receive a WLO if the court considers the seriousness of their crime to be “exceptionally high”. A recent example of this occurrence is the September 2021 sentencing of Wayne Couzens to a whole-life order, with the judge likening the abuse of his position as a police officer to an ideologically motivated murder.

Can a WLO prisoner appeal their sentence?

A WLO prisoner can, with permission from a judge of the Court of Appeal, appeal the length of their sentence using any of the normal grounds. Namely that:

· The sentence is ‘manifestly excessive’.

· The sentence is ‘wrong in law’.

· The sentence is ‘wrong in principle’.

In 2008, American fugitive David Bieber successfully appealed his WLO, which was substituted for a life sentence with a minimum term of 37 years. In Bieber’s case, statutory guidelines recommended a 30-year minimum, rather than the imposition of a WLO. The judge’s failure to follow these guidelines meant that a successful appeal was possible. The Sentencing Act was subsequently amended to include Bieber’s crime, the murder of a police officer, in the list of crimes normally warranting a WLO.

Can a WLO prisoner appeal their conviction?

This is possible, although permission is needed from the Court of Appeal. To successfully overturn their conviction, the whole-life prisoner must show that their conviction is unsafe. Their conviction may be unsafe because, for example:

· There is new, credible evidence casting doubt on the verdict

· There was a procedural irregularity in their trial

· The Judge misdirected the jury in law or fact

· The Judge made an error of law

· The verdicts were inconsistent (where the jury convict on some counts but acquit on others)

Can a Whole-Life prisoner ever be released?

The only mechanism by which a whole-life prisoner may ever be released is on “exceptional compassionate grounds”. By reference to the 2009 compassionate release of Lockerbie bomber Abdelbaset al-Megrahi (convicted in Scotland, where there is no WLO), this could occur, for example, if a prisoner had terminal cancer. No whole-life prisoner has ever been released this way, and indeed several WLO prisoners have become terminally ill and died in prison. The compassionate release mechanism keeps the WLO compliant with Article 3 of the European Convention on Human Rights (the right not to be subjected to inhuman or degrading treatment or punishment) per the decision of the European Court of Human Rights in Hutchinson v the United Kingdom [2017].

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