‘An Obligation of Means, Not One of Result’: 1A Historical Overview and Theoretical Assessment of the Whole Life Order Sentencing Regime in England and Wales
| Published date | 01 December 2023 |
| DOI | http://doi.org/10.1177/00220183231216169 |
| Author | Atticus Blick |
| Date | 01 December 2023 |
‘An Obligation of Means, Not One
of Result’:
1
A Historical Overview
and Theoretical Assessment of
the Whole Life Order Sentencing
Regime in England and Wales
Atticus Blick
University College London, UK
Abstract
In England and Wales, a ‘whole life order’(WLO) is a life sentence with no prospect of parole.
At present, the WLO sentencing regime provides insufficient clarity about the assessment cri-
teria for the release of prisoners, rendering these sentences unreviewable. Indeed, no WLO
prisoner has ever been released. This article submits that it is the means by which the execu-
tive and courts preclude scrutiny of the WLO review mechanism, and so devalue the systemic
health of our legal order by undermining rule of law principles of accountability and transpar-
ency, which form the most disquieting aspects of the regime. I set out my argument in two
parts. Part One provides a historical assessment of the development of the WLO sentencing
regime and its impact on wider human rights discourse. A critical evaluation of this history
reveals that WLOs today are irreducible and underscored by the long-term accumulation of
unaccountable executive power. Part Two considers WLOs from the position of the philoso-
pher John Rawls’theory of ‘political liberalism’as applied to understandings of European
human rights constitutionalism. Adapting Rawls’emphasis on the importance of reciprocal
deliberation between diverse citizens and institutions in maintaining a just and stable society,
this article presents the deficiencies of the WLO regime as deriving from an inter-institutional
1. This quotation comes from the European Court of Human Rights’judgment in Petukhov v Ukraine (no 2), 12 March 2019, no
41216/13. Strasbourg premised the incompatibility of the Ukrainian life sentencing regime with the European Convention on
Human Rights on the basis that ‘the obligation to offer a possibility of rehabilitation is to be seen as an obligation of means,
not one of result’. Prisoners in Ukraine were segregated from non-life prisoners and spent up to 23 h per day in their cells,
which were usually double or triple occupancy, with little in terms of organised activities and association. The Ukrainian
Government had failed to explain how a prisoner could progress towards rehabilitation in such conditions. Elaborating on the
quotation, this article proposes that the entire system of review of a prisoner’s life term, more than just prison conditions,
must provide for a meaningful opportunity for prisoner’s to progress to release. The question remains whether the ‘worst of
the worst’prisoners have the capacity to achieve the ‘result’of such progress to reform even if given the means to do so.
Corresponding author:
Atticus Blick, Pupil Barrister, 9 King’s Bench Walk, Temple, London, EC4Y 7DX, UK.
E-mail: atticus.blick@9kbw.co.uk
Article
The Journal of Criminal Law
2023, Vol. 87(5-6) 355–385
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231216169
journals.sagepub.com/home/clj
failure to engage in meaningful deliberation about whether the WLO regime complies with the
UK’s human rights obligations. I propose reforms to the reviewability of WLO sentences to
give prisoners the ‘means’if not necessarily the ‘result’of release. Rather, there remain out-
standing questions about how many of the worst of the worst prisoners possess the capacity
for rehabilitation, even if provided with the opportunities to do so. As such, these reforms can
be justified, less on grounds of ensuring the actual release of prisoners, but more as part of
restoring a broader functional human rights and rule of law framework.
Keywords
Life sentences, whole life orders, sentencing, human rights, murder
Introduction
In England and Wales, a ‘whole life order’(WLO) is a life sentence with no prospect of parole. For other
life sentences, the Parole Board convenes after the minimum term of imprisonment has passed under the
Crime (Sentences) Act 1997 (C(S)A 1997). The Parole Board advises on the risk of releasing a prisoner
back into the community. This advice determines whether the prisoner will be released on licence.
2
The sentencing purposes of WLOs are ‘retribution and deterrence’, as stated by Lord Steyn in
Secretary of State for the Home Department ex parte Hindley (Hindley).
3
These purposes follow from
the view that some crimes are so heinous that, now there is no longer the death penalty, the only suitable
punishment is incarceration for the rest of the prisoner’s natural life.
4
The WLO sentencing regime is set out under schedule 21 Sentencing Act 2020 (SA 2020)
‘Determination of minimum term in relation to mandatory life sentence for murder etc’
5
(previously
schedule 21 Criminal Justice Act 2003 (CJA 2003)). Under schedule 21, paragraph 2(1), If the Court con-
siders 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 com-
mitted, then the appropriate starting point is a WLO. For instance, the most recent recipient of a WLO at
the time of writing in July 2023 is Louis De Zoysa who, while handcuffed in police custody, shot and
killed on-duty Metropolitan Police officer Sargeant Matt Ratana. It was the first WLO handed down
after TV cameras were allowed in Crown Courts.
6
Schedule 21 provides a (non-exhaustive) list of
cases that will ‘normally’have a WLO as a starting point:
(a) the murder of two or more persons, where each murder involves any of the following—
(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
2. Note the reforms announced by Justice Secretary Dominic Raab in March 2022, specifying that the most dangerous offenders –
murderers, rapists, terrorists and those who have caused or allowed the death of achild –will alsonow face ministerial scrutiny –
including a new power to block their release in the interests of public safety. Where the Parole Board cannot confidently say the
prisoner is safe to leave prison, they will refer the decision to the Justice Secretary. Ministry of Justice, ‘Parole reform to keep
dangerous prisoners off streets’(30 March 2022)
prisoners-off-streets> accessed 11 May 2022.
3. R v Secretary of State for the Home Department ex parte Hindley [2001] 1 AC 410 at 417H (Lord Steyn).
4. R v McLoughlin & Newell [2014] EWCA Crim 188 at [17] (Lord Thomas of Cwmgiedd). See also Edward Fitzgerald KC, ‘Life
Without Parole’PAS Annual Lecture (transcript) (3 November 2016) fi tzgerald-q-
c-life-without-parole-pas-annual-lecture-3-november-2016/> accessed 11 May 2022.
5. It is not clear to the author whether ‘etc’refers to other offences (e.g. certain forms of high treason) which also come with a
mandatory life sentence.
6. The Crown Court (Recording and Broadcasting) Order 2020. Enacted after a successful pilot scheme.
356 The Journal of Criminal Law 87(5-6)
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