Stewart, Couzens & Others [2022] EWCA Crim 1063

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R v Stewart, Couzens, Monaghan, Tustin & Hughes [2022] EWCA Crim 1063 saw the Court of Appeal (Criminal Division) consider appeals and Attorney General references concerning five offenders sentenced for murder or manslaughter, including the question whether whole life orders were appropriate in cases falling outside the specific categories listed in Schedule 21 to the Sentencing Act 2020.

Ian Stewart, aged 61, was convicted of murdering his wife Diane Stewart in 2010 by asphyxiation. He had previously been convicted in 2017 of murdering his fiancée Helen Bailey, for which he received a life sentence with a minimum term of 34 years. Bryan J imposed a whole life order for the first murder. Wayne Couzens, aged 49, pleaded guilty to kidnapping, raping and murdering Sarah Everard in March 2021 whilst serving as a Metropolitan Police officer. Fulford LJ imposed a whole life order. Jordan Monaghan, aged 30, was convicted of murdering his two infant children Ruby and Logan in 2013, murdering his partner Evie Adams in 2019 and twice attempting to murder his daughter Leela in 2016. Goose J imposed a life sentence with a minimum term of 40 years. The Solicitor General sought a whole life order. Emma Tustin, aged 32, was convicted of murdering six-year-old Arthur Labinjo-Hughes in June 2020 by inflicting catastrophic head injuries. Wall J imposed a life sentence with a minimum term of 29 years. Thomas Hughes, Arthur’s father, was convicted of manslaughter and sentenced to 21 years’ imprisonment. Both applied for leave to appeal and the Attorney General sought increased sentences, contending Tustin should receive a whole life order.

Stewart murdered Diane Stewart by asphyxiation at their home in June 2010. At the time, the death appeared to be caused by epilepsy and Stewart was not investigated. Six years later he murdered Helen Bailey, his then fiancée, having sedated her over months before suffocating her and concealing her body in a cesspit. He was sentenced to life imprisonment with a minimum term of 34 years for the second murder in February 2017. Only thereafter was the first murder investigated and Stewart subsequently convicted.

Bryan J found that paragraph 2(2)(e) of Schedule 21 applied, treating this as a murder by an offender previously convicted of murder. He also observed that if Stewart had been sentenced for both murders together, paragraph 2(2)(a)(i) (murder of two or more persons involving substantial premeditation) would have applied. He found the seriousness exceptionally high and no mitigating factors, concluding that just punishment required a whole life order.

Couzens kidnapped Sarah Everard from the street on 3 March 2021 whilst off duty but using his police warrant card and handcuffs to effect a false arrest. He transported her 80 miles to Kent where he raped and murdered her by strangulation, then disposed of and burned her body. The investigation revealed he had made reconnaissance trips to London, hired a car to make it appear more credible as a police vehicle, and purchased equipment including handcuffs and carpet protector. He maintained an elaborate fabrication about a human trafficking gang when arrested but subsequently pleaded guilty at the earliest opportunity.

Fulford LJ found the misuse of Couzens’ position as a police officer to coerce Ms Everard was of equal seriousness to murder for political or ideological purposes. He concluded that the seriousness was exceptionally high because police have unique powers of coercion and control dependent on public trust. The extensive aggravating features included significant planning, abduction, the most serious sexual conduct, the victim’s mental and physical suffering before death, and concealment of the body. The judge concluded that although the guilty plea was relevant, it could not reduce the sentence once a whole life order was determined appropriate.

Monaghan murdered his 24-day-old daughter Ruby in January 2013 by smothering after she was discharged from hospital. He murdered his 21-month-old son Logan in August 2013 by smothering in a swimming pool changing cubicle following arguments with the children’s mother about his gambling debts. He twice attempted to murder his daughter Leela in September and October 2016 by the same method. Whilst on police bail in 2019 he murdered his partner Evie Adams by poisoning her with Tramadol, Diazepam and Pregabalin over a week, controlling access to medical help whilst she suffered great pain. Each incident involving the children followed arguments with their mother about ending the relationship.

Goose J found the seriousness particularly high, identifying the starting point as 30 years by reference to paragraph 3(2)(f) of Schedule 21 (murder of two or more persons). He identified substantial aggravating factors including the vulnerability of Ruby and Logan, the breach of trust, Evie Adams suffering great pain, significant planning of her murder, and the forging of a suicide note. He imposed concurrent terms of 27 years for the attempted murders and a minimum term of 40 years for the murders.

Arthur Labinjo-Hughes died in June 2020 from catastrophic head injuries inflicted by Tustin through violent shaking and impact with a hard surface. Over the preceding three months of lockdown, Tustin and Hughes subjected him to prolonged cruelty including forcing him to stand in isolation for up to 14 hours daily, withholding food and water until he was emaciated, administering salt, and repeatedly assaulting, threatening and verbally abusing him. This was extensively recorded on CCTV and audio. Tustin’s own two young children lived normally in the same home. On the day of the fatal assault, Hughes left the house with Tustin’s children. Messages and photographs were exchanged showing Arthur’s distress and injuries. Tustin launched the attack whilst alone with Arthur, failing to seek immediate medical help.

Wall J concluded that Tustin intended to kill Arthur when she launched the attack, noting the force used and her desire to be rid of him. He found the murder to be of particularly high seriousness because of the preceding sadistic cruelty, adopting a starting point of 30 years. He imposed a minimum term of 29 years taking account of the child cruelty offences, lack of premeditation, Tustin’s troubled background, mental illness history including suicide attempts, and risk in custody. For Hughes, the judge found he had encouraged violence intending injury just short of really serious harm. He sentenced on the basis of high culpability for manslaughter with a starting point of 12 years but elevated this to the very high culpability range (starting point 18 years) to reflect the child cruelty, imposing 21 years’ imprisonment.

The court reviewed the statutory framework in sections 321–322 of the Sentencing Act 2020 and Schedule 21, and the relevant authorities. The court emphasised that whole life orders are sentences of last resort for cases of the most extreme gravity, reserved for the few exceptionally serious cases. The seriousness must be exceptionally high, not merely particularly high. The categories in paragraph 2(2) are not exhaustive but cases falling outside them will probably be rare. Each case depends on its own facts and Schedule 21 must be applied flexibly. The assessment is for the sentencing judge and the Court of Appeal will interfere only if the sentence was manifestly excessive or unduly lenient. A guilty plea is relevant when determining whether seriousness is exceptionally high.

In Stewart’s case, the court held that paragraph 2(2)(e) did not apply because at the time of the first murder Stewart had not previously been convicted of murder. Nor did paragraph 2(2)(a)(i) apply as the court was sentencing for only one offence. The seriousness of the first murder, viewed in isolation, could not be regarded as exceptionally high, though it was clearly particularly high because it was done for gain. The correct starting point was 30 years. Significant upward adjustment was required to reflect aggravating features including premeditation, the domestic context, trauma inflicted on the sons, and the cover-up enabling Stewart to remain free and commit the second murder. The court drew on the analogy of R v Hills to conclude that the judge was entitled to adjust the minimum term to achieve just punishment for both murders and ensure proportionality, reflecting that the minimum term for the first murder would start after Stewart had served about four years of his minimum term for the second murder. The court substituted a minimum term of 35 years for the whole life order.

In Couzens’ case, the court agreed with the judge that this was not a borderline case and that the unique and extreme aggravating features justified a whole life order, though the court reached this conclusion by a different route. The court held that the starting point was a minimum term of 30 years under paragraph 3(2)(e) (murder involving sexual conduct), but the aggravating features were such that the seriousness was exceptionally high and a whole life order should be made. The misuse of Couzens’ position as a police officer was the chief aggravating feature. The court rejected the submission that remorse should have affected the outcome, noting that Couzens had sought to minimise his responsibility throughout and never offered a full explanation. This was a rare case falling outside the Schedule 21 paragraph 2 criteria where a whole life order was nonetheless appropriate, based on careful application of the statutory principles to the facts rather than creating a new category. The appeal was dismissed.

In Monaghan’s case, the court accepted the Solicitor General’s submission that the circumstances did not fall within paragraph 2(2) and that there was no substantial planning or premeditation of the children’s murders. The court agreed with the judge that the case was particularly serious with a starting point of 30 years by reference to paragraph 3(2)(f). However, the court found the minimum term of 40 years unduly lenient given the extensive aggravating factors: three murders on separate occasions over seven years, the vulnerability of Ruby and Logan and breach of trust, the degree of planning in Logan’s murder and its coercive motivation, Evie Adams’ murder whilst Monaghan was on police bail involving substantial planning and her suffering, the frustrated medical assistance and forged evidence, forming an intention to kill on five occasions, the impact on Ms Gray, and previous convictions. The attempted murders required separate reflection. Taking account of all circumstances without double counting and applying totality, the court substituted a minimum term of 48 years.

In Tustin’s case, the court held that the judge was right to take a starting point of 30 years to reflect the murder and preceding cruelty. This was not one of those rare cases where a whole life order was appropriate despite none of the paragraph 2 factors being present. The murder imported particularly high but not exceptionally high seriousness. The court rejected the Attorney General’s submission that the sentence was unduly lenient, finding the judge had struck an appropriate balance between aggravating and mitigating factors. The court refused to extend time or grant leave to appeal against the child cruelty sentences, noting the application was academic given the long minimum term.

In Hughes’ case, the court refused leave to appeal but accepted the Attorney General’s submission that the sentence was unduly lenient. The court rejected the defence submission that culpability was medium, holding that Hughes’ intention to encourage harm just short of really serious injury placed the manslaughter firmly in the high culpability category. The court found substance in the argument that in encouraging Tustin there was a substantial risk she would kill Arthur. As Arthur’s father, Hughes bore primary responsibility and his culpability for the cruelty was greater than Tustin’s despite being convicted of fewer counts. The breach of trust and Arthur’s vulnerability were grave aggravating features. The court held that the manslaughter itself fell into the very high culpability range given the aggravating features. The manslaughter alone deserved 18 years or more. The court substituted a sentence of 24 years’ imprisonment to reflect all the offending.

In short, the court allowed Stewart’s appeal and substituted a 35-year minimum term for the whole life order; dismissed Couzens’ appeal against his whole life order; increased Monaghan’s minimum term from 40 to 48 years; declined to vary Tustin’s 29-year minimum term; and increased Hughes’ sentence from 21 to 24 years’ imprisonment.

Secretary of State for the Home Department ex parte Anderson [2002] UKHL 46; [2003] 1 Cr App R 32, [2003] 1 AC 837
Peters & Ors [2005] EWCA Crim 605
Jones & Ors [2005] EWCA Crim 3115; [2006] 2 Cr App R (S) 19
Wilson [2009] EWCA Crim 999
Oakes, Roberts, Stapleton, Restivo and Simmons [2012] EWCA Crim 2435
Ian McLoughlin and Lee Newell [2014] EWCA Crim 188
Jamie Reynolds; Anwar Rosser [2014] EWCA Crim 2205
McCann, Sinaga & Shah [2020] EWCA Crim 1676, [2021] 4 WLR 3
Hills [2008] EWCA Crim 1871
Height and Another [2008] EWCA Crim 2500
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