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Liam MacleanBackground

Before the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LAPSO”) came into force on 3 December 2012, judges in England and Wales, broadly, had three sentencing options in respect of dangerous offenders:

  • imprisonment for public protection (“IPP”);
  • an extended sentence for public protection (“EPP”); or
  • a maximum life sentence (a “life sentence”).

LAPSO abolished IPP and replaced pre-LAPSO EPP with new forms of EPP.  A life sentence remains an option.

On 13 November 2012 Mr Docherty was convicted of two charges of wounding with intent. On 20 December 2012 he was sentenced to IPP, with a minimum custodial term of 5 years and four months.

IPP is a more severe sentence than either of the EPP options as it is for an indeterminate length.

Court of Appeal

Mr Docherty appealed his sentence on two of grounds:

  1. the judge failed to consider whether lesser restrictions, including pre-LAPSO EPP, instead of IPP would have enabled proper protection of the public; and
  2. the abolition of IPP prior to the sentencing of Mr Docherty obliged the court to impose an pre-LAPSO EPP rather than an IPP in order to comply with Article 7 (or Articles 5 and 14) of the ECHR and the international norm and principle of lex mitior

Ground 1

Ground 1 was quickly dismissed by the court. The court noted dicta from R v C & Ors EWCA Crim 2790 finding that IPP should not be imposed if a lesser sentence provided appropriate public protection. In their Lordships’ view, HHJ Onions had clearly considered the full range of sentencing options and came to the reasonable conclusion (given the facts of the case) that a sentence of IPP was necessary. As such, the sentence of IPP was “neither excessive nor wrongly imposed”.

Ground 2

Ground 2 was also dismissed, but covered more complicated legal issues.

The court, firstly, considered whether Mr Docherty’s ECHR, Article 5 (liberty) and 14 (non-discrimination) rights had been breached as a result of the, allegedly, discriminatory way that the sentencing regime had been applied. Mr Docherty argued that the discriminatory treatment arose as he was treated differently to someone imprisoned for the same offences, with the same factual background, post 3 December 2012 without any objective justification.

The court dismissed these arguments.  It noted that the House of Lords (in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54) had concluded that being treated differently due to one’s status as a prisoner did not come within the ambit of Article 14 discrimination. Their Lordships were bound to follow this precedent (despite a contrary decision from the ECtHR on appeal).

In any case, even if they had not been so bound, their Lordships doubted whether the “anomaly” created by LAPSO would have amounted to discrimination contrary to Article 14. Parliament had a legitimate desire to reform sentencing and that would inevitably lead to some differences in treatment dependent on date of sentencing. If this context was not sufficient to remove Mr Docherty’s case from the ambit of Article 14, it may provide an objective justification.

The court, then, considered whether Article 7 (no punishment without law) required the lex mitior principle to be applied. Lex mitior requires, in the event of a change in the law prior to a final judgment, the law more favourable to the person being convicted shall apply.

It was argued that despite Article 7(1) merely stating that “[n]or shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed”, ECtHR jurisprudence required a more expansive interpretation and, in particular, guaranteed the right to a more lenient penalty provided for in a subsequent law i.e. lex mitior (Scoppola v Italy (No 2) Application 10249/03). Their Lordships noted various reasons why Scoppola may not be applicable in Mr Docherty’s case – however, these were not sufficiently material.

The court went onto consider how it should comply with its duty under the Human Rights Act 1998 to take account of ECtHR jurisprudence. Their Lordship’s adopted the approach taken by the court in R (Hicks) v Commissioner of Police of the Metropolis [2014] EWCA Civ 3 to this question, a key element of which was that:

“UK courts will be bound to follow an interpretation of a provision of the Convention if given by the Grand Chamber as authoritative, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which, properly explained, would lead to that interpretation being reviewed by the ECtHR when its interpretation was being applied to English circumstances.”

Scoppola was a judgment of the Grand Chamber and their Lordships saw no argument that the exception outlined above applied, they were therefore bound to follow it.

Accordingly, they needed to consider whether lex mitior applied in Mr Docherty’s case. The court considered the policy background of the various sentencing options, the facts of Mr Docherty’s offending behaviour and the comments of the judge at first instance and concluded that under the new post-LAPSO sentencing regime a judge would have considered a life sentence a real possibility. As such, Mr Docherty may well have faced a less favourable sentence and, accordingly, the principle of lex mitior did not apply in this case.

Issues for the Supreme Court

Mr Docherty has appealed, asking the Supreme Court to consider three issues:

  1. Whether domestic courts ought to recognise and apply the lex mitior principle when applying Article 7.
  2. If so, whether the appropriate test when considering whether the imposition of IPP violates Article 7 is whether there was a real possibility that the individual would otherwise have been sentenced to a life sentence.
  3. Whether Mr Docherty possessed “other status” qualifying for protection by Article 14, and if so whether there was an objective justification for the imposition of an abolished sentence.

The Supreme Court heard the appeal on 3-4 May 2016 and the panel consisted of Lord Neuberger, Lord Mance, Lord Reed, Lord Carnwath and Lord Hughes.