R v Docherty [2016] UKSC 62

Shaun Docherty, a violent repeat offender, was convicted of wounding with intent before LASPO 2012 commenced but sentenced afterwards to imprisonment for public protection (IPP). He challenged the transitional provisions preserving IPP, arguing lex mitior, ultra vires and discrimination. The Supreme Court unanimously dismissed his appeal.

Facts

The appellant, Shaun Docherty, aged 34 at sentence, had a substantial history of alcohol-fuelled violence, including a 1997 conviction for causing grievous bodily harm with intent. In July 2012 he stabbed two drinking companions, inflicting multiple wounds including a knife left embedded in one victim’s chest. He pleaded guilty on 13 November 2012 to two counts of wounding with intent contrary to section 18 of the Offences against the Person Act 1861, both carrying a maximum of life imprisonment. Probation assessed him as posing a ‘very high’ risk of further serious violence.

Between his conviction and sentence, the statutory sentencing regime for dangerous offenders changed. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was commenced on 3 December 2012, abolishing IPP and the existing extended sentence (EPP) for the future and substituting a new obligatory life sentence (s 224A) and a new Extended Determinate Sentence (EDS, s 226A). Article 6(a) of the Commencement Order (SI 2012/2906) preserved the old regime for persons convicted before 3 December 2012. Docherty, convicted on 13 November but sentenced on 20 December 2012, fell within this saving and received an IPP with a minimum term of five years and four months.

Issues

Docherty challenged article 6(a) of the Commencement Order on three grounds:

• Whether preserving IPP for him breached the principle of lex mitior, said to be incorporated into article 7 ECHR by Scoppola v Italy (No 2) (2010) 51 EHRR 12;
• Whether article 6(a) was ultra vires LASPO because its purpose was to abolish IPP, applying the Padfield principle;
• Whether the distinction between those convicted before and after 3 December 2012 amounted to unlawful discrimination contrary to article 14 ECHR read with article 5.

Arguments

Appellant

The appellant argued that the new LASPO regime was less severe and should have applied to him under lex mitior; that preserving IPP defeated the statutory purpose of LASPO; and that the date-of-conviction cut-off constituted discrimination on grounds of ‘other status’. He submitted he should have received an EPP.

Respondent and Intervener

The Crown and the Secretary of State submitted that section 226A(1)(a) made EDS available only to those convicted after commencement; that phased commencement was lawful; and that English practice already conforms to lex mitior in its proper sense without permitting anticipation of statutory changes.

Judgment

Lord Hughes, giving the judgment of a unanimous court, dismissed the appeal.

Construction of section 226A and article 6(a)

The Court held that ‘is convicted’ in section 226A(1)(a) means ‘is hereafter convicted’. The ordinary, prospective meaning was supported by the express provision applying the section to offences whenever committed (expressio unius, exclusio alterius), by the parallel use of the phrase in sections 224A, 142 and 146, and by the presumption against retrospective construction. Lord McNally’s statement in Parliament did not satisfy the Pepper v Hart conditions. Article 6(a) followed naturally from this construction, preserving the old regime for the small cohort convicted before commencement but not yet sentenced.

Lex mitior and article 7 ECHR

The Court distinguished lex gravior (a fundamental principle against retrospective heavier penalties) from lex mitior (requiring retrospective application of more lenient penalties). It accepted that Scoppola read lex mitior into article 7, but declined to extend it to require courts to apply the most favourable rule operating at any intervening point between offence and sentence. English practice already conforms to lex mitior in its narrower form: courts sentence according to the law and practice prevailing at sentence, subject to not exceeding the maximum available at the time of the offence.

Crucially, lex mitior does not permit anticipation of a statutory change not yet commenced. As Lord Hughes explained, the fixing of the commencement date is part of the change itself; until commencement, society has not adjudged the old penalty excessive. Phased commencement is rational and often essential, particularly where new and old regimes are incompatible (as EDS and EPP were, given their differing scope and release rules). Docherty’s argument was self-contradictory in seeking accelerated abolition of IPP while retaining EPP.

Ultra vires

The argument that article 6(a) breached the Padfield principle failed for the same reason: phased commencement is neither irrational nor contrary to statutory purpose.

Discrimination

Even assuming date of conviction could constitute ‘other status’ within article 14, any difference of treatment between those convicted just before and just after the commencement date is inherent in any change of law and is objectively justified. Otherwise, no sentencing reform could ever be introduced.

Alternative ground

The Court of Appeal had also held that, had IPP not been available, a life sentence may well have been imposed. The Supreme Court noted this was not the correct test: it would be for the Court of Appeal itself to determine whether a life sentence was the correct sentence, but the point did not arise given the primary conclusion.

Implications

The decision confirms several points of importance to sentencing practice. First, English law recognises lex mitior only in its narrower form: defendants are sentenced according to current law and practice, subject to not exceeding the statutory maximum at the time of the offence. The wider proposition that defendants may claim the benefit of any more lenient rule operating at any intervening time is rejected.

Secondly, lex mitior does not authorise anticipation of statutory changes prior to their commencement. Phased commencement of sentencing reforms is lawful, even where the consequence is that a small cohort remains subject to a regime being abolished for the future.

Thirdly, the judgment clarifies that the LASPO regime is not a piece-by-piece substitution for the CJA 2003 regime; rather, the two schemes must be considered as wholes. EDS is not a direct replacement for IPP, and courts must approach sentencing afresh under the new framework, as illustrated by Burinskas.

Fourthly, the decision provides authoritative guidance on the construction of ‘is convicted’ in commencement-sensitive sentencing provisions, holding it ordinarily to mean ‘is hereafter convicted’.

The decision matters particularly to those, like Docherty, sentenced under transitional provisions, and to practitioners advising on historic offences and sentencing reform. It does not resolve the wider Strasbourg debate on the precise reach of Scoppola, but holds that English practice complies with article 7 as properly understood.

Verdict: Appeal dismissed. The sentence of imprisonment for public protection imposed on the appellant was lawful; article 6(a) of the LASPO Commencement Order No 4 was validly made and the challenges based on lex mitior, ultra vires and discrimination all failed.

Source: R v Docherty [2016] UKSC 62