Edward Fitzgerald QC, assisted by Abigail Bright on the first day of her tenancy, secure victory in sentence reduction in whole life term case

Edward Fitzgerald QC, assisted by Abigail Bright on the first day of her tenancy, secure victory in sentence reduction in whole life term case.

Breaking headline news, a special constitution of the Court of Appeal (Criminal Division) (Judge, LCJ, Hallett, Hughes, Leveson, Rafferty, LJJ.) today gave judgment in five conjoined appeals which specifically considered the minimum terms in respect of (four) whole life orders. Edward Fitzgerald Q.C. and Abigail Bright (instructed by Lansbury Worthington) represented Danilo Restivo, who was sentenced following his conviction for murder to life imprisonment, with a whole life specified minimum term. That sentence was set aside and substituted for a minimum term fixed at 40 years. In sentencing Restivo for the murder of Heather Barnett, the trial judge had found that Restivo had "killed before". Notwithstanding that the Court of Appeal accepted that there was clearly "a vast body of evidence which provided strong evidence that he was indeed guilty" of an earlier murder, the court found that the trial judge had not been entitled to sentence Restivo for an earlier murder.
 


The court took the opportunity to look afresh at cases which would "normally" fall within the category of exceptionally high seriousness so as to justify a whole life order, pursuant to Schedule 21 of the CJA 2003. That Schedule provides an indication of appropriate starting points which apply to the assessment of the seriousness of the offence of murder, or its combination with other offences associated with it. The court identified the relevant principles for judicial assessment of the minimum term to be served by the appellants for the purposes of punishment and retribution before the possibility of the Parole Board considering their release. The court recognised the "grave disquiet" (para. 7) with which the courts have previously approached the whole life order, and observed "No one doubts that a whole life minimum term is a Draconian penalty, or indeed that it is the order of last resort reserved for cases of exceptionally serious criminality" (para. 24). It reviewed the panoply of comparative domestic and European case law on compatibility of the whole life order with Article 3, ECHR.

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