R v Oakes R v Restivo R v Roberts R v Simmons R v Stapleton

JurisdictionEngland & Wales
JudgeLady Justice Hallett DBE,Lord Justice Hughes,Lord Justice Leveson,Lady Justice Rafferty DBE
Judgment Date21 November 2012
Neutral Citation[2012] EWCA Crim 2435
Docket NumberCase No: (1) 2012/03270; (2) 2011/04249;
CourtCourt of Appeal (Criminal Division)
Date21 November 2012
David Oakes and Others

[2012] EWCA Crim 2435


The Lord Chief Justice of England and Wales

Lady Justice Hallett DBE Vice President of the Qb Division

Lord Justice Hughes Vice President of the CACD

Lord Justice Leveson


Lady Justice Rafferty DBE

Case No: (1) 2012/03270; (2) 2011/04249;

(3) 2012/00658; (4) 2012/01317; (5) 2012/04805


Royal Courts of Justice

Strand, London, WC2A 2LL

Mr N L Lithman QC for the Appellant (1) David Oakes

Mr E Fitzgerald QC for the Appellant (2) Danilo Restivo

Mr A N Bajwa QC and Ms S Ward for the Appellant (3) Michael John Roberts

Mr B N O'Brien for the Appellant (4) David Simmons

Mr S Csoka QC for the Appellant (5) Kiaran Mark Stapleton

Mr D Perry QC and Mr L Mably for the Crown

Hearing dates: 10 th October 2012

The Lord Chief Justice of England and Wales:



The present appeals heard before a special constitution of the Court of Appeal Criminal Division are directed at sentences which were imposed on different occasions following very grave crimes. Three of the appellants were convicted of murder, and two of rape and associated sexual crime. For those convicted of murder the mandatory sentence of life imprisonment was imposed: for those convicted of rape and sexual crime discretionary life sentences were imposed. There is no appeal against the mandatory life sentence of life imprisonment following conviction for murder. The imposition of a discretionary life sentence may be the subject of an appeal but that issue does not arise in either of the present cases where it was imposed. These orders ensure the long term protection of the public. We should perhaps emphasise at the outset that each of these appellants is dangerous, and on the available evidence, likely to remain dangerous for the indefinite future. At present it is difficult to see how it will ever become safe for any of them to be released from custody.


The appeals are confined to the second distinct element of the sentences, that is the judicial assessment of the minimum term to be served by the appellants for the purposes of punishment and retribution before the possibility of their release may be considered. In four of these appeals (two of murder and two of rape), whole life terms were ordered, and in the fifth case, (another case of murder) the minimum term was assessed at 30 years. This element of sentence, whether imposed following a mandatory or a discretionary life sentence, is discretionary.


Dealing with it very briefly for the moment, the jurisprudence of the European Court of Human Rights distinguishes, for reasons which are clearly apparent, between three different types or classes of sentences of life imprisonment. They are:

"(i) a life sentence with eligibility for release after a minimum period has been served;

(ii) a "discretionary sentence of life imprisonment without the possibility of parole"; and

(iii) a "mandatory sentence of life imprisonment without the possibility of parole".

In the context of this jurisprudence, the whole life terms on four of these appellants represented discretionary sentences of life imprisonment without parole, that is, type (ii) and the mandatory sentence of life imprisonment with a minimum term assessed at 30 years fell within the ambit of type (i). None fell within type (iii), and in this jurisdiction such a sentence cannot be imposed.

The whole life minimum term


It is unnecessary for this judgment to revisit the steady development of sentencing practice which followed the abolition of the death penalty and its replacement with the mandatory life sentence. This included the transition of the so-called "tariff" period designed to reflect punishment and deterrence into the formalised arrangements for assessing the appropriate minimum term now encompassed in statute, and the transfer to the court of the responsibility of the Secretary of State for the Home Department to determine how long a period should actually be served. It is now exclusively for sentencing judges (and where necessary, this court) to decide the minimum term which it is appropriate for the defendant who subjected to a sentence of life imprisonment to serve before his release. Express statutory provision is made in Schedule 21 of the Criminal Justice Act 2003 vesting the court with jurisdiction, in an appropriate case of exceptionally high seriousness, to order a whole life minimum term. It is submitted by Mr Edward Fitzgerald QC on behalf of the appellant Restivo that this provision contravenes Article 3 of the European Convention of Human Rights.


Every civilised country embraces the principle encapsulated in Article 3. This provides that:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".


Simultaneously, however, every civilised country also embraces the principle that just punishment is appropriate for those convicted of criminal offences. These issues relating to just and proportionate punishment are the subject of rational debate and civilised disagreement. The assessment of what should be deemed to constitute just punishment or inhuman or degrading punishment in a particular circumstance can legitimately produce different answers in different countries, and indeed different answers at different times in the same country. All these are at least in part a consequence of the history of each country. The question whether the whole life order constitutes a breach of Article 3 of the Convention, or indeed of the long established common law principle that the sentence should be proportionate in all the relevant circumstances of the offence and the criminal who has committed it, has been well debated.


There are those who view the whole life order with grave disquiet. In this jurisdiction the argument was reflected in the judgment of Laws LJ in R (Wellington) v Secretary of State for the Home Department [2007] …

"… a prisoner's incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use incarceration as time for amendment of life, his punishment is only exhausted by his last breath … The supposed inalienable value of the prisoner's life is reduced, merely to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it".


In the European Court of Human Rights, the same concern is clearly underlined in the recent joint partly dissenting opinion of Judges Garlicki, David Thorbe Jorgivsson and Nicolaou in Vinter and Others v United Kingdom (applications nos. 66069/09 and 130/10 and 3896/10). Particular concern was expressed about the

"hopelessness inherent in a sentence of life imprisonment from which, independently of the circumstances, there is no possibility whatsoever of release while the prisoner is still well enough to have any sort of life outside prison".

These are examples of many occasions when similar judicial observations have been made.


Be all that as it may, in the context of the whole life term, contrary views have been expressed by eminent jurists, not least, Lord Bingham of Cornhill CJ in R v Secretary of State for the Home Department, ex parte Hindley [1998] QB 751 at 769:

"I can see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving life long incarceration for purposes of pure punishment."

It is not without importance that, as the then Lord Chief Justice, he went on to reflect that in the context of whole life tariffs, "Successive Lord Chief Justices have regarded such a tariff as lawful, and I share their view". In expressing himself in this way, he was, of course, addressing the situation which obtained when assessment of the penal period to be served by the defendant was made by the Home Secretary, in the light of any judicial recommendations.


Hindley's appeal to the Court of Appeal was dismissed, and the House of Lords, too, supported the decision of the Divisional Court. Giving the leading judgment, Lord Steyn addressed the observation of Lord Bingham, and agreed that some crimes would be sufficiently heinous to deserve life long incarceration for the purposes of pure punishment. He continued:

"There is nothing logically inconsistent with … saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence".

At the time when this case was making its way through the courts, the whole-life tariff was not based on an express statutory provision. Nevertheless Lord Bingham and Lord Steyn were expressing views which affirmed support for the principle that there had been and no doubt would continue to be cases in which a whole life order represented just punishment.


Perhaps the need to give due recognition and respect to legitimate but inconsistent views on this issue is encapsulated in the observations of Baroness Hale in R (Wellington) v Home Secretary [2009] 1 AC 335, at paragraph 53, where, in the context of extradition to a jurisdiction which embraced the whole life minimum term principle, she observed:

"I do understand the philosophical position, that each human being should be regarded as capable of redemption here on earth as well as hereafter. To those who hold this view, the denial of the possibility of redeeming oneself in this life by repentance and reform may seem inhuman. I myself was brought...

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