By Fee Robinson, London School of Economics

 Introduction

On the 21st of August 2023 Lucy Letby was sentenced for the murders of seven babies, and the attempted murder of seven more, committed over a period of 13 months whilst she was employed as a neonatal nurse at the Countess of Chester Hospital.^[1]

To anyone familiar with Schedule 21 of the Sentencing Act 2020 it was perhaps no surprise Letby received a whole life order for these offences. In doing so she became just the fourth woman in the UK to have received a whole life order,^[2] and, given the wording of the sentencing remarks, seemingly the first person to have received multiple whole life orders.

In passing sentence the Honourable Mr Justice Goss made clear that Letby received a whole life order “on each and every offence”,^[3] meaning that, between the seven murder convictions and seven attempted murder convictions Letby received a total of fourteen whole life orders. It is of course notable that Letby received multiple whole life orders, appearingly for the first time in English legal history, but it is even more notable that this wording appears to imply that Goss J passed whole life orders on single counts of attempted murder.

This article aims to explore some of the questions raised by this single sentence contained in ten pages of sentencing remarks. Firstly, can a whole life order be justified for each individual murder? Secondly, can a whole life order be justified for each individual attempted murder? And thirdly, how should sentencing law feel, given its principles, about multiple whole life orders?

Before engaging in this discussion, for those who are not so familiar, Schedule 21 s 4 of the Sentencing Act 2020 (formerly the Sentencing Act 2003) (hereafter ‘Schedule 21’) sets out the circumstances in which a whole life order would be an appropriate starting point. It is not a closed list but has rarely been departed from,^[4] though it appears the Court of Appeal does not favour judge-made new criteria, preferring judges to make whole life orders in novel circumstances on the basis of a lower starting point that, as a result of aggravating features, is pushed up to a whole life order.^[5] Just as offending not meeting the criteria in s 4 of Schedule 21 can, through the application of aggravating factor, be escalated to a whole life order, offending covered by s 4 of Schedule 21 can also, with the application of mitigating factors, results in a sentence less than a whole life order.

A Life for a Whole Life Order

The question of whether Goss J can justify a whole life order for each murder may well be an easier one to answer if these same crimes were committed today. The Police, Crime, Sentencing and Courts Act 2022 made it law that the starting point for a premeditated murder of a child must be a whole life order.^[6] Goss J concludes clearly in his sentencing remarks that Letby’s offending was premeditated,^[7] meaning that if this provision had been in force perhaps a whole life order for each murder could be justified as it would be the starting point for each individual murder. However, Letby’s crimes were committed between June 2015 and June 2016, meaning that the justification for a whole life order must be found elsewhere.^[8]

The next provision of relevance may be that the murder of a child that involves abduction, or has sadistic or sexual motivation attracts a whole life order starting point.^[9] But Letby’s murders weren’t sadistic, and Goss J made this point in his sentencing remarks, describing her actions as only “bordering on sadism”.^[10] Therefore, this provision also cannot demonstrate how a whole life order can be justified for “each and every” murder.

This appears to exhaust the options that would lead to a whole life order starting point for each individual murder. The next step would be to explore the criteria for a thirty year starting point, the band below a whole life order,^[11] and assume that the aggravating features of the young age of her victims (all being premature babies),^[12] and her abuse of position aggravated the offence upwards to a whole life order. However, no criteria under this provision aids Goss J’s sentencing either, with none of them mentioning murders of children or abuse of position.

The only other justification would be one of truly novel statutory interpretation. Another variety of murder that would attract a whole life order starting point occurs where there is the murder of two or more persons where each murder involves, inter alia, premeditation.^[13] Letby’s offending fulfils this criteria, she committed seven murders and each, per Goss J, was premeditated.^[14] This certainly justifies a whole life order— but does it justify seven? Well, if one were to take the view that the impact of this provision is to enable a whole life order for each murder, where that murder is part of a series of two or more murders, then yes. However, this would be, as indicated, truly novel. Stephen John Port— “the grindr killer”— who murdered four men, and also committed a series of sexual assaults, received just one whole life order.^[15] Even more recently, Damien Bendall, responsible for the murder of a pregnant mother, her two children, and another child also received just one whole life order.^[16] Despite these offenders also fulfilling the same criteria as Letby, the position of judges has clearly been to interpret the provision as enabling a single whole life order for multiple-murders, rather than enabling multiple murderers to receive a whole life order for each of their murders.

There is also the possibility that  Goss J may contend that this is a “new category” of offence that should fall under Schedule 21. The issue with such is that the Court of Appeal held in an appeal by Wayne Couzens that it was not for judges to make a “new category”, rather they must begin with a lower starting point and use aggravating features to conclude that a whole life order is justified.^[17] However, if this has been the approach of Goss J the process he followed to arrive at a whole life order for each of the seven murders is not laid out in his sentencing remarks. It therefore seems difficult to conclude that this either is the approach used to arrive at seven separate whole life orders.

This article is not attempting to suggest that Lucy Letby would succeed on appeal at reducing the time she will spend in prison, she quite clearly fulfils the final criteria discussed, especially in light of her defence offering no mitigation. Despite this, it does appear that there is no justification under the current law for seven separate whole life orders for her seven murders.

Whole Life Orders for Non-Homicidal Offences

The English and Welsh legal system has previously encountered the issue of whether offences that carry discretionary life sentences can result in a whole life order. This discussion has seemingly primarily taken place with regards to campaigns of rape: McCann^[18] was a conjoined appeal of three serial rapists, two of which are relevant to this discussion. The titular McCann and an unconnected offender by the name of Sinaga had their sentences appealed for undue leniency, with the Attorney General sought their thirty year tariffs to be raised to whole life orders.^[19] McCann was convicted of thirty-seven offences, a number of which were sexual offences against children committed during a two week campaign.^[20] Sinaga meanwhile was convicted of 136 counts of rape, and sixteen further offences.^[21] Despite this magnitude of offending the Court of Appeal held that whole life orders could only be made in relation to discretionary life sentences when there were “wholly exceptional circumstances”.^[22] Even the case of David Carrick, a police officer who used his position to commit forty-nine sexual offences over seventeen years, was deemed not to meet the threshold of “wholly exceptional circumstances”.^[23]

Given this, what would be considered “wholly exceptional circumstances”? Well the court in McCann gave some indication of this, namely, where the kind of offence that would normally attract a whole life order is foiled “close to execution”.^[24] Such a situation would, in the court’s view, justify a whole life order. On this view, it may very well be that Lucy Letby’s non-homicidal offending warrants a whole life order.

Letby’s offending, as outlined above, does fulfil the criteria in Schedule 21. It is also true to say that Letby’s offending was foiled “close to execution”. In relation to Baby B survival was as a result of resuscitation, having been injected by Letby with a “bolus of air”, blocking the blood supply to his heart and lungs.^[25] The same is true of the other attempts, with babies only surviving thanks to swift, and often intensive, medical care, made possible only because Letby’s offending took place on a neonatal intensive care unit.^[26]

On this front, perhaps it is justifiable that Letby appears to be only the second person to receive a whole life order for a non-homicidal offence. It appears as though Letby’s offending, being the abuse of trust it was, and against premature babies may be the kind of offending that could be considered to fall into the category of “wholly exceptional circumstances” that the Court of Appeal discussed. Crucially, as stated Letby’s attempts were foiled “close to execution”, though even this may be an understatement given that Letby had actually completed her attempts and it was not a result of her failures but rather the proactivity of others that the other six babies did not die.

These circumstances are still not quite that which was envisioned by the Court of Appeal. The specific examples given by the Court of Appeal are foiled terrorist attacks, specifically where a bomb has been planted on a “commercial airliner” and fails to detonate, or where authorities stop a “mass-murder”.^[27] Letby’s offending is not quite of this quality, where a plan to kill multiple people in the same incident is stopped, notwithstanding the Court of Appeal does note that there are an “infinite variety of circumstances that give rise to serious offending”.^[28] Once again, given Letby’s abuse of position and the degree to which her attempts almost succeeded it remains the position of this article that her offending would be one of the “wholly exceptional circumstances” that would draw a discretionary life sentence to carry a whole life order.

But even if Letby’s whole life order for attempted murder can be justified the issue persists: Can seven whole life orders be justified? If seven whole life orders cannot be justified under Schedule 21 for a completed attempt, in this case murder, it does not seem possible to justify them for attempted murder. The reasoning for giving Letby a whole life order stems from her near-completion of an offence that Schedule 21 would recognise as warranting a whole life order. Once again, that reasoning comes from her premeditated murder of two or more people, which, barring novel interpretation, leads to a single whole life order, not one per murder. Though it is not under Schedule 21 that Letby would be sentenced for these offences, as Schedule 21 only covers mandatory life sentences.^[29] The Sentencing Council have produced sentencing guidelines for attempted murder and explicitly cover situations in which there are multiple attempts.^[30]

These guidelines state that where the convictions arise from the same set of facts a “concurrent sentences reflecting the overall criminality would normally be appropriate”.^[31] This may lend some more support to Goss J’s approach if the whole life orders are viewed as concurrent sentences reflecting total criminality. This is only the second case of a non-homicidal offence to attract a whole life order, and the first for attempted murder and there is therefore limited precedent but it would appear odd to embark on a system of concurrent whole life orders for attempted murder where such an approach has not been adopted for multiple-murderers. Whilst attempted murder is a very serious offence, to adopt a system where a person can receive more sentences, if not more jail time, for attempted murder would seem to imply that each attempt has more value than each actual murder.

It is also of relevance that the Court of Appeal’s envisioned circumstances all include multiple attempted murders, a single attempt does not seem to fulfil the “wholly exceptional circumstances test”, rather it is the combination of attempts that breach that threshold.

Do Multiple Whole Life Orders Make a Difference?

Of course, seeing as this article has not disputed that Letby seemingly deserves a whole life order under the current law, even agreeing that she could fulfil the highly exceptional circumstances required for a discretionary life sentence to carry a whole life order, there must be some question of whether it matters whether Letby receives fourteen or one whole life order. Either way, she will never leave prison— barring exceptional compassionate grounds.^[32] But the optics, and therefore functioning of our criminal justice system rely on principles incompatible with the approach taken by Goss J.

Firstly, a conjoined appeal concerned with whole life orders, including Wayne Couzens, did well to lay out a few basic principles of whole life orders, the last of which is that “the period that a murderer must serve does not reflect the value the life taken away and does not attempt to do so”.^[33] There has been a great deal of discussion for many years as to whether the criminal justice system does, or even should, place victims at the heart of its operation.^[34] For many, sentencing may be an opportunity to seek some retribution on the perpetrator who has caused them harm. It is difficult to find fault with this human instinct. Yet part of the purpose of an independent criminal justice system, where prosecutions are brought not by victims but by the state, and sentences are inflicted not by those who were hurt but by independent judges is to remove the base human instinct for revenge. Persons who have committed heinous offences may, sometimes, even often, be capable of rehabilitation. To some victims this may seem deeply unfair. Yet the criminal justice system attempts to temper the interests of victims with the public interest, and indeed even, to some extent, the interests of offenders, to produce a result that is, above all, just.

The issue with a whole life order for each murder and each attempted murder is it appears to come ever-closer to a system where the value of a life taken is reflected in the sentence given. Here, not even just for lives taken, but for lives attempted to be taken. It appears to send a message that each attempt, successful or not, at murder requires a whole life order. Where then does this leave judges faced with sentencing a single offence of murder? Families, having seen Letby’s sentencing, may well expect the value of their loved-one’s life to be reflected in quite the same way, e.g. a whole life order, even if such an order is wholly uncalled for in the circumstances. It is not fair for a victim’s loved ones to contemplate the possibilities of rehabilitation, or that the person who murdered their loved one may one day cease to be dangerous. That is the job of a judge, with the assistance of counsel. But nor is it fair to create a regime in which victims’ loved ones may expect to see their loved one’s value reflected in sentencing, and the Letby sentencing begins to create just that expectation.

In a similar vein, this form of sentencing creates issues not just for future sentencing, but for past sentences. There are some truly awful offences in English and Welsh legal history. Damien Bendall was discussed earlier in this article, he murdered four people, three of which were children, and the other one of which was pregnant.^[35] He received what was, at the time, the harshest possible sentence, but now, following Letby’s sentencing, he received just one whole life order for four murders, the same sentence Letby received for a single attempted murder. Loved ones of his victims may well be left lacking faith in the criminal justice system, seeing that their loved one’s lives were not shown the same value in their sentencing as Letby’s victims.

It is not sustainable to send a message that the criminal justice system operates to reflect the value of each life in the sentences it passes. Such a sentencing regime would not be in the public interest. It would leave people who don’t need to be in prison in prison, and would create a criminal justice system that values retribution above all else.

Lucy Letby deserves a whole life order under the current law for the premeditated murders of seven babies and attempted murder of seven more, not for each individually to reflect the value of life lost, but because a whole life order reflects the severity of her actions taken as a whole. Any other view creeps towards, as discussed, a system in which every death must be reflected in a whole life order. Sentences should reflect the totality of the seriousness, and in the case of a whole life order it is difficult to see what is gained by stacking whole life orders for “each and every” offence. But there is a great deal to be lost, for the loved ones of both crimes past and crimes future, and potentially for our criminal justice system as a whole.

Fee Robinson, London School of Economics, ([email protected])

^[1] The Hon. Justice Goss, ‘The King v Lucy Letby Sentence Remarks (Redacted Version)’ (August 2023) <https://www.judiciary.uk/wp-content/uploads/2023/08/LETBY-Sentencing-Remarks.pdf> accessed 22 August 2023

^[2] Tobi Thomas and Kevin Rawlinson, ‘Lucy Letby becomes fourth woman in UK to receive whole-life jail term after murdering seven babies – as it happened’ (The Guardian, 21 August 2023) <https://www.theguardian.com/uk-news/live/2023/aug/21/lucy-letby-sentencing-hearing-life-sentence-updates> accessed 22 August 2023

^[3] The Hon. Justice Goss (n 1), 10

^[4] R v Couzens [2022] EWCA Crim 1063 [74]

^[5] Ibid [82].

^[6] Sentencing Act 2020, Schedule 21, s 2 (2)(ba)

^[7] The Hon. Justice Goss (n 1), 3

^[8] Ibid, 2.

^[9] Sentencing Act 2020, Schedule 21, s 2 (2)(b)

^[10] The Hon. Justice Goss (n 1), 10

^[11] Sentencing Act 2020, Schedule 21, s 3

^[12] The Hon. Justice Goss (n 1)

^[13] Sentencing Act 2020, Schedule 21, s 2 (2)(a)

^[14] The Hon. Justice Goss (n 1), 3

^[15] The Hon. Justice Openshaw, ‘The King v Stephen Port Sentence Remarks’ (November 2016) <https://www.judiciary.uk/wp-content/uploads/2016/11/sentencing-remarks-r-v-stephen-port.pdf> accessed 22 August 2023

^[16] Caroline Lowbridge, ‘Killamarsh murders: Damien Bendall given whole-life order’ (BBC News, 21 December 2022) <https://www.bbc.co.uk/news/uk-england-derbyshire-64038743> accessed 22 August 2023

^[17] R v Couzens [2022] EWCA Crim 1063 [82]

^[18] R v McCann [2020] EWCA Crim 1676

^[19] Ibid [1].

^[20] Ibid [2].

^[21] Ibid [21-26].

^[22] Ibid [89].

^[23] The Hon. Justice Cheema-Grubb DBE, ‘Rex v David Carrick Sentencing Remarks’ (February 2023) <https://www.judiciary.uk/wp-content/uploads/2023/02/R-v-David-Carrick-sentencing-070223.pdf> accessed 22 August 2023

^[24] R v McCann [2020] EWCA Crim 1676 [89]

^[25] The Hon. Justice Goss (n 1), 4

^[26] The Hon. Justice Goss (n 1)

^[27] R v McCann [2020] EWCA Crim 1676 [89]

^[28] Ibid.

^[29] Sentencing Act 2020, Schedule 21

^[30] Sentencing Council, ‘Attempted murder’ (July 2021) <https://www.sentencingcouncil.org.uk/offences/crown-court/item/attempted-murder-2/> accessed 22 August 2023

^[31] Ibid.

^[32] Home Office, ‘Sentence lengths for serious offenders: Police, Crime, Sentencing and Courts Act 2022 factsheet’ (August  2022) <https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-sentence-lengths-for-serious-offenders-factsheet> accessed 22 August 2023

^[33] R v Couzens [2022] EWCA Crim 1063 [19, ix]

^[34] There are many examples of this discussion, the one chosen here is not the most academic but does well to cover recent discussion and concludes well in why an exclusively victim-focused system is not for the best.  Matthew Scott, ‘Do we need a Victims Commissioner?’ (Barrister Blogger, 19 August 2019) <https://barristerblogger.com/2019/08/19/do-we-need-a-victims-commissioner/> accessed 22 August 2023

^[35] Caroline Lowbridge (n 16)