What are whole life orders? The Sarah Everard case

Hi Professor:

That was a very interesting talk, which I enjoyed thoroughly. Thank you for posting that.

I wanted to add an observation as a Canadian. As you may be aware, in Canada it is impossible to receive absolute or strict “life without parole.” Functionally, though, this may be effected. The Canadian Criminal Code has been amended in recent years to remove the continued operation of the so-called “faint-hope clause” (s. 745.6), which had previously allowed convicted murderers to apply for early parole (whereas first-degree murder automatically carries a 25-year minimum prison term in Canadian law, with all murderers receiving a life sentence). Additionally, multiple murderers may receive sentences exceeding the 25-year minimum, although this ability is currently being challenged at the national level as potentially unconstitutional and violative of the Canadian Charter of Rights and Freedoms. Furthermore, long-standing Code provisions allow for the detention of certain classes of the most dangerous criminals essentially indefinitely – typically sex killers and serial rapists or child molesters – under Canada’s “dangerous offender” framework. The result of these enactments, in combination, is that those deserving of life behind bars, in the interests of retribution, deterrence, and incapacitation from further harming the public, are perhaps now more likely to actually serve life and die in prison.

This is the conventional application of Canadian provisions dealing with life terms that will actually mean life: the public-interest focus is on the “worst of the worst,” those who commit truly depraved offences against the values of society and right to life of individual members. Thus, in Canada, this statutory framework is not typically used to ensnare members of law-enforcement who wantonly abuse the public interest in committing an aggravated homicide of the type committed by former officer Wayne Couzens. But perhaps Canada could learn something from the UK approach. The reasoning of Fulford LJ is logical and defensible, divorced from any type of strained mental gymnastics that sometimes attaches to novel applications of law. Moreover, and most importantly, it will be readily apparent to the UK public that Fulford’s decision represents a critical need of justice in this case. The precedent will undoubtedly prove durable and respected in English criminal justice. But could it also be a further means of holding police generally to account for engaging in unlawful violence against citizens, up to and including premediated homicide? In other words, could this case become the key formal precedent for treating police violence as expressly aggravating of any offence of violence? In an age of BLM, this would have the advantage of sending a very stern message to law-enforcement that they will be held to a higher standard – expected to represent the best in the public trust, in exchange for the awesome authorities that they enjoy on the job and the public’s automatic respect – but without the political complexities (impossibilities) of trying to pass a more comprehensive regime for treating police violence more severely than other forms of violence.

Once more, returning to the Canadian context, this is relevant and perhaps could offer an example for Canada because our laws arguably need a corrective balance. In Canada, as it stands, if anything law-enforcement enjoys a privileged standing. Notably, in the Canadian Criminal Code, the killing of a police officer (or prison officer or official) is automatically treated as elevating even second-degree murder to first-degree murder irrespective of the offence details. See s. 231(4). This is a clear public policy formulation parachuted into the Code, and it is one that the English Law Commission rejected in its 2006 report on homicide. (See Law Commission No 304, at p 52) It is perhaps a credit to English and Welsh law – to fair-labelling and due process – that English law appears to take the opposite stance on protective “special categories.” Id. The killing of a police officer is a pernicious and vile wrong. No sensible person could disagree. But the killing of an innocent person by police is arguably worse in any free society, and inasmuch as protective categories do not exist in the same way in England and that cases such as the Everard case afford a chance to express society’s disgust with such an incredible abuse of power something positive emerges from this otherwise horrible tragedy. Provisions in criminal codes, for instance in Canada or the United States, protecting police by treating their harm as aggravating need not be mutually exclusive from provisions or case law that says that police themselves committing crime is also aggravating of an offence at all times. The very Schedule 21 to the Sentencing Act 2020 that you quote in your lecture makes this plain: under the “starting points” for sentencing, s. 2(2)(c) lists the killing of a police officer as an aggravating consideration tending to justify a whole-life term. As well it should (but note that sentencing aggravators should be distinguished from offence-definition aggravators). Ultimately, the Couzens sentencing stands for the idea that law-enforcement is not above the law and will if anything expect a more exacting treatment. Fulford LJ made this very clear to England and to the Met force. This is a welcome occurrence, and it also brings policing justice more into line with the military justice system in common law states.

In the military, the common shorthand maxim, most eloquently expressed in the United States perhaps, by practitioners of the Uniformed Code of Military Justice (UCMJ), binding the US armed forces, is that those in uniform sign up agreeing to a reduction in some of their substantive and procedural rights as citizens in order to protect the rights of society. Military justice demands as much, in the interests of military discipline and military efficiency. This acceptance, in turn, is one of the many reasons why society honours and revers those who serve their country honourably – the vast majority of all service members (and vast majority of all police). This “carrot” of implied and customary admiration comes with the “stick” of all that court martial entails for the accused on trial before a military court. Perhaps some thought might even be given to a police version of the court martial procedure, rather than merely using police-specific tribunals for service disciplinary actions? After all, no one is entitled to become a police officer. Neither is anyone forced to. But everyone is absolutely entitled to the benefit of professional police acting at all times in the highest traditions of service, honesty, public safety, accountability, and integrity. Lord Justice Fulford has done what little he can to do right by the memory of poor Sarah Everard.

-Jake Brennand, Toronto