The Attorney General should not refer Carrick’s sentence to the Court of Appeal

According to a YouGov poll nearly 60% of the population believe that the “minimum sentence of 30 years and 239 days” passed on David Carrick was too lenient. Only a contrarian 1% considered it too harsh.

The Attorney General’s office is said to have received “a stream of complaints” about the leniency of the sentence, and has announced that it is “reviewing” it.

The Times published a leading article arguing that Carrick should have received a “whole life” tariff; that is, life without the possibility of parole. Former Victims Commissioner Vera Baird KC has said that were she still Solicitor General, as she once was, she would “trigger a review of this as an unduly lenient sentence.” I am not entirely sure whether she means that she would actually refer the case to the Court of Appeal or just that she would have a long hard think about doing so.

So the current Attorney General is under some pressure to refer the case to the Court of Appeal, which would then have the power to increase it if it considered it “unduly lenient.”

She should resist the pressure. The only meaningful increase would be to a whole life term, and that is not going to happen. Indeed I am going to stick my neck out and say that it is not even arguable.

Carrick repeatedly raped and sexually assaulted 12 women using his police status, and in some cases using police equipment to subdue and enforce compliance on his victims. Many of the rapes were particularly brutal and violent: the revolting details were set out in detail by Mrs Justice Cheema-Grubb as she passed sentence. It was unquestionably a case which called for a sentence of exceptional severity.

The 30 years and 239 days minimum term – strictly speaking it is 32 years less time served on remand – represents only the first part of his sentence. He has no right to be released even after he has served 32 years and the stark reality is that he is quite likely to die first. Should he ever be freed he will be an elderly man, and of course subject to recall at any point.

But for The Times and others this is not punishment enough.

This raises two separate questions. First, was the sentence too short under the existing criminal law? Secondly, is the existing law itself too lenient?

Should the Attorney General choose to refer the case, the Court of Appeal will be concerned only with the first question.

Trial judges are afforded a certain leeway: the Court of Appeal will readily increase a sentence if it finds the trial judge has “fallen into gross error,” but it will not tinker merely because it considers it a bit more lenient than it should have been.

In most cases guidelines produced by the Sentencing Council make sentencing something of a “box-ticking” exercise. You place the crime into the relevant category of severity and the guideline then suggests a “starting point” and a “category range” within which the sentence should fall. The eventual sentence can be adjusted up or down from the starting point but within the range depending on the various “aggravating” or “mitigating” features that there may be.

But with cases such as Carrick’s the sentencing guidelines are of little help, for as they themselves say:

“Offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate.”

Indeed they may, and the maximum sentence for rape is life imprisonment.

Sentences of life imprisonment consist of two parts: the custodial element is the term that a prisoner must serve in prison before becoming eligible for parole. That minimum length of that element of the sentence is set by the sentencing judge. Once he has served the minimum term responsibility switches to the Parole Board to determine whether he is safe to release. He is considered for release close to the end of the minimum term set by the judge, and then (if not released at that point) annually thereafter. If he is released he then remains on licence and liable to recall to prison for the rest of his life.

In a case as appalling as Carrick’s, it was always virtually inevitable that he would receive a life sentence. But how long the minimum term should be was harder to assess. The sentencing guidelines, as we have seen, do not provide much assistance.

Previous cases, though, do help. In 2020 a (rarely convened) 5 judge Court of Appeal gave judgment on 2 separate rape Attorney General’s References in which life sentences had been passed. Cheema-Grubb J referred to the cases (which were heard together under the not very catchy title Attorney General’s Reference No 688 of 2019 and No 5 of 2020 [2020] EWCA Crim 1676) in her sentencing remarks.

The first involved Joseph McCann, described by the judge as a “classic psychopath,” whose eight victims included an 11 year old boy and his 17 year old sister both of whom he raped while their mother was locked in another room in their home. Others were kidnapped at knife point, assaulted and threatened with murder. One was forced to drink McCann’s urine. The original sentence passed on McCann was life with a minimum term of 30 years.

The second was Reynhard Sinaga, who had been convicted of 136 offences of rape against 44 separate victims, men he picked up and drugged in Manchester clubs. In most cases he had used his phone to record himself raping them whilst they were unconscious. He too was originally sentenced to life with a minimum of 30 years.

Once one reaches the levels of depravity in cases such as these it becomes very difficult to say that one case is worse than another.

Carrick’s case involved the use of his status as a police officer which set it apart from many others, but Sinaga’s involved considerably more victims and McCann’s included kidnapping and amongst a catalogue of other wickedness the rape of children within the hearing of their mother. In both cases the Attorney General (the post was held at that time by Suella Braverman) invited the Court of Appeal to impose whole life terms. In both it declined to do so. Without completely excluding the possibility of wholly exceptional cases – an example given was the terrorist who whose airliner bomb fails to explode as expected – whole life terms, the court said, should not be given to anyone except those committing the very worst murders.

It did, however increase the minimum terms in both cases from 30 to 40 years. 40 years was chosen because the Court felt that the appropriate “determinate” (ie non-life) sentence would have been 60 years, and a prisoner serving such a sentence could expect to be released after serving two thirds of such a sentence: that is 40 years.

That still does not explain why Carrick’s minimum term was just 32 years. Why should Carrick be treated more leniently than McCann or Sinaga?

The answer is that, unlike them, Carrick chose – after some initial hesitation – to plead guilty. Cheema-Grubb J. assessed that had she not been imposing a life sentence she would have passed a sentence of 60 years imprisonment, exactly the same starting point as McCann and Sinaga. Had he been convicted at a trial this would have resulted in him receiving a 40 year minimum. McCann and Sinaga had insisted on a trial at which their many victims had had to give evidence; Carrick pleaded guilty. She decided, as the law requires, that this entitled him to a reduction in sentence which she felt should be 20%. That reduced the starting point by 12 years to 48 years. A further piece of arithmetic was then needed to calculate two thirds of 48, the time that Carrick would have to serve had his sentence been an “ordinary” sentence. This reduced 48 years to the 32 year minimum term which she then imposed.

So the reason Carrick’s minimum term was 8 years shorter than those of McCann or Sinaga was simply that he had pleaded guilty and they had not. Like McCann and Sinaga, Carrick had initially pleaded not guilty. He had even served defence statements asserting that his accusers had either consented or had simply invented false allegations. But he subsequently changed his pleas to guilty, so his his victims did not have to endure the agony of a trial, face cross-examination or contemplate the prospect of his possible acquittal.

My view – for what it is worth – is that Cheema-Grubb’s explanation for her sentence is unassailable. The Attorney General should not ask, but if she does the Court of Appeal will not increase the sentence, and certainly will not impose a whole life term.

This is not the place to discuss whether the law should permit whole-life terms at all. But if they are to have a place in sentencing they should be reserved for the very worst cases.  In the absence of a death penalty, flogging, hard labour or mutilation, imprisonment without hope of parole (save possibly for compassionate reasons at the very end of life) is now the severest sentence that our judges can pass.

I had thought that it had never been imposed for any offence apart from murder, but (and I am grateful to Nicola Lane for pointing it out) that may not quite be correct. John Wass, a serial child sex offender was reported by the Derby Telegraph to have received a whole life order in 2017 for sexual offences against boys.  The report may not be accurate but, if it is, the case remains highly anomalous..  As a Crown Court case it sets no legal precedent, and the view of the Court of Appeal is that Whole Life Orders should almost always be reserved for the most heinous of murders. Amongst the most well-known such murderers to receive it in recent years was Wayne Couzens, the police officer who murdered Sarah Everard.

Without feeling an ounce of sympathy for men like Carrick, to impose a whole life term on someone who has not killed his victim would be – to use a dry but correct word – “disproportionate.” It would mean treating someone guilty of rapes and murders exactly the same as someone who had committed the same rapes who had allowed his victims to live. If that were the case it would not be wrong to say that the law placed no value on the loss of the human life.

Moreover, whilst murderers are often not very rational, the principle of deterrence rests on the assumption that at least sometimes criminals are deterred by the prospect of the severity of the sentence if they are caught. If the law imposes no greater punishment on a rapist who murders his victim, what does he have to lose by strangling her?