How does a Judge decide whether or not a Whole Life Order should be imposed?
Whole life orders are relatively rare, and the imposition of such terms was recently considered in detail by the Court of Appeal (Stewart and others  EWCA Crim 1063).
The Court of Appeal held:
i) For offences committed before 28 June 2022, a whole life order may only be considered where a sentence of life imprisonment is imposed on an offender who is over the age of 21 (section 321(3)(a)). Section 126 of the Police, Crime and Sentencing Act 2022 extends the availability of a whole life order to offenders aged 18, 19 and 20 from that date.
ii) A whole life order may only be imposed if the court considers that the seriousness of the offence(s) is such that it should not make a minimum term order (section 321(3)(b)):
iii) "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 his or her life. Often, perhaps usually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life. Indeed, if the judge is in doubt this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for the final years of his or her life is the appropriate disposal. To be imprisoned for a finite period of thirty years or more is a very severe penalty. If the case includes one or more of the factors set out in [the schedule] it is likely to be a case that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty".
iv) It is "a sentence of last resort for cases of the most extreme gravity" which is "reserved for the few exceptionally serious cases" where "the judge is satisfied that the element of just punishment requires the imposition of a whole life order". In a borderline case, if the judge is in any doubt as to whether this standard is reached, a minimum term order is likely to be the appropriate disposal.
v) The statutory scheme "does not shut the door" on the possibility of a whole life order where a discretionary sentence of life imprisonment is imposed for a crime other than murder, but such a case would be "wholly exceptional". All bar one of those currently serving whole life orders were convicted of murder and, in most cases, more than one offence of murder.
vi) In assessing whether the seriousness of the offence(s) warrants a whole life order, the court must have regard to the general principles set out in Schedule 21 (section 322(3)). Each case will depend critically on its particular facts. The sentencing judge must undertake a careful analysis of all the relevant facts as "justice cannot be done by rote". Schedule 21 must be applied in a flexible, not rigid, way to achieve a just result. Because each case depends on its own facts, comparison with other cases is unlikely to be helpful. It is the application of the principles to a careful assessment of the relevant facts of the case that is important.
vii) The court must first identify the appropriate starting point. Where the seriousness of the offence(s) is exceptionally high, then the starting point is a whole life order. Where the seriousness of the offence(s) is "particularly high" the starting point is a minimum term of 30 years. Otherwise, the starting point will be 15 or 25 years depending on the circumstances.
viii) Cases of murder involve taking human life where the offender intended to kill or cause really serious harm. All murders are necessarily extremely serious crimes. For that reason, they attract the mandatory life sentence. The requirement for the seriousness to be "exceptionally high" before a whole life order is made arises in that context. The case must be exceptionally serious, even in the context of murder. The period that an offender is required to serve, in the case of a minimum term before the parole board can consider release, encompasses every type of murder from true mercy killings at one end of the spectrum to the most evil at the other.
ix) The period that a murderer must serve does not reflect the value the life taken away and does not attempt to do so.
x) Paragraphs 2 (2) and 3 (2) of Schedule 21 list the types of case where the seriousness is "normally" to be regarded as "exceptionally high" or "particularly high". These are not exhaustive lists. The legislation does not exclude the possibility that other cases might reach the indicted level of seriousness, though such cases are "probably rare". The same applies in reverse: a case that nominally comes within the ambit of paragraphs 2(2) or 3(2) may not reach that level of seriousness because of the particular facts. The conclusion in Height was that it will be rare for a case that does not come directly within the scope of paragraph 2(2) to be regarded as being exceptionally serious.
xi) Having determined the appropriate starting point, the court must consider the aggravating and mitigating factors. These may result in a departure from the starting point. If the starting point is a whole life order, then the balance of mitigating factors and aggravating factors might result in the imposition of a minimum term order. That balance is not struck by listing aggravating and mitigating factors and then considering which list is the longer. Both aggravating and mitigating factors may vary in potency. The statutory factors which indicate that a whole life order should be considered would themselves normally be aggravating factors. Care must be taken not to double count. Conversely, if the starting point is a minimum term order, then the balance of aggravating factors and mitigating factors might result in the imposition of a whole life order.
xii) A plea of guilty is relevant when determining whether the seriousness of a case is exceptionally high and requires a whole life order.
xiii) If the test in section 321(3) is satisfied, then a whole life order must be imposed. Otherwise, a sentence of life imprisonment must be subject to a minimum term order ( section 321(2) ).
xiv) A whole life order means that the statutory early release provisions do not apply. It does not preclude the possibility of release by the Home Secretary on compassionate grounds. A decision whether to release on compassionate grounds may be challenged in judicial review proceedings. The Grand Chamber of the European Court of Human Rights has confirmed (in agreement with this court's decision in McLoughlin ) that "the whole life sentence… [is] in keeping with Article 3 of the Convention".
xv) The assessment of seriousness is for the sentencing judge. On an appeal, or a reference by the Law Officers, this court will not substitute its own assessment for that of the sentencing judge. On an appeal against the imposition of a whole life order or a reference by the Attorney or Solicitor General this court will interfere only if the sentence was manifestly excessive or unduly lenient, as the case may be.