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FaircloughA2015Background

The Supreme Court heard the appeal (from [2014] EWCA Crim 1197) on 3-4 May 2016 and the panel consisted of Lords Neuberger, Mance, Reed, Carnwath and Hughes. Judgment was handed down on 14 December 2016

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

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 3 December 2012, abolishing IPP. The Commencement Order however included transitional arrangements that certain types of sentences (including IIP) would be available for anyone convicted but not yet sentenced before 3 December.

Lower courts

The Court of Appeal decision was discussed in Liam Mcclean’s Case Preview.

Docherty appealed on grounds that the Commencement Order was unlawful insofar as it preserved the power to sentence him to IPP, because: (a) to comply with ECHR, art 7, the international norm and principle of “lex mitior” (if, subsequent to the commission of the offence, provision is made for a lighter penalty, the offender shall benefit thereby) was binding, and the Court was obliged to impose an pre-2012 Act EPP; (b) if the principle of the 2012 Act was to remove IPP from sentencing powers, the transitional provisions were ultra vires the Act; and (c) imposing an IPP on him, but not on a person convicted after 3 December 2012, amounted to unlawful discrimination contrary to ECHR, art 14 (in conjunction with art 5).

Judgment – “All changes in sentencing law have to start somewhere” (para 63)

The Supreme Court unanimously dismissed the appeal, with Lord Hughes giving judgment.

Hughes gives a detailed examination of ECHR, art 7, and the Grand Chamber decision in Scoppola v Italy (No 2) (2010) 51 EHRR 12, which the appellant relied on, and the implications thereof, at paras 29–56.

ECHR, art 7(1) (no punishment without law) requires that no sentence may be imposed that exceeds that to which the defendant was exposed at the time of the offence.

A consistent line of Strasbourg authority (including the minority in Scoppola) made clear principle of lex mitior was not also contained within art 7. However, the majority in Scoppola did hold that a lex mitior principle was implicit in the article (a more difficult proposition as the debate on whether to include an explicit reference to it at the Convention drafting stage would have been unnecessary). This was based on an apparent consensus in Europe and internationally that such a principle was a fundamental principle of criminal law.

Nonetheless, at para 43, Lord Hughes held, inter alia:

  • An English court would be prohibited in applying a maximum sentence beyond the maximum applied at the time of the offence, even if the maximum sentence had been increased since the offence was committed.
  • If the maximum has been reduced, the English court will sentence with the now current minimum.
  • If sentencing practice as to the gravity of an offence has moved downwards since the offence was committed, the court should sentence according to the now current view.
  • If a new sentencing option that is arguably less severe becomes available after the commission of the offence, that new option is available to the court, unless the statute expressly otherwise directs.

That it is the maximum sentence that matters to art 7(1) has been consistently adopted by authority. Since the statutory maximum for the appellant’s offences was the same at the time of offence and sentence, that principle was not offended.

Whilst their might be difficulties in fully interpreting Scoppola, the English practice of sentencing according to the law and practice prevailing at the time of his sentence complied with a broad principle of lex mitior. The new preventative sentencing regime was not in force: it was the subject of a legitimate phased introduction. Anticipation of a change that was yet to take effect (as in this case) was no part of lex mitior (paras 55–56, 58).

There was nothing contrary to the statutory purpose of the 2012 Act in the Commencement Order’s transitional arrangements (paras 61–62). It was doubtful whether being subject to a different sentencing regime to a prisoner with a different date of conviction, could amount to a sufficient status to bring it within ECHR, art 14 – and even if it could, the differential treatment was clearly justified (para 63).

Comment

Whilst expressing some disquiet, the Supreme Court judgment acknowledges the role of lex mitior within ECHR, art 7 – but holds that the practice of sentencing in accordance with the law and practice at the time of sentence complies with this. This rather dodges the bullet of what the court would have been obliged to do had the 2012 Act added a new sentencing option in addition to IPP.

To watch the hearing, please visit: Supreme Court Website