Shaun Docherty was sentenced to imprisonment for public protection for serious knife attacks after that sentence had begun to be abolished. He argued that transitional provisions keeping it available for offenders convicted before the commencement date were unlawful under the European Convention on Human Rights and beyond the power conferred by the reforming statute. The Supreme Court rejected every ground and upheld the sentence.
Shaun Docherty, aged 34, pleaded guilty to two counts of wounding with intent. On 12 July 2012 he stabbed two drinking companions, inflicting at least six wounds on one and leaving the knife embedded in his chest; the other sustained a deep scalp wound and further injuries. He already had a substantial record of alcohol-related violence, including a five-year sentence in 1997 for unlawful wounding and causing grievous bodily harm with intent, and further incidents up to July 2012. Reports found no mental-health disability but long-standing alcohol abuse and a very high risk of further serious violence. The maximum sentence was life imprisonment. On 20 December 2012 the judge imposed imprisonment for public protection, specifying five years and four months before the Parole Board could consider release on licence.
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The two sentencing schemes
The Criminal Justice Act 2003 provided a scheme for dangerous offenders, including imprisonment for public protection. The judge set a minimum period representing half the commensurate determinate term; after that period, release depended on the Parole Board being satisfied that detention was no longer necessary for public protection. Administrative difficulties led Parliament, through the Legal Aid, Sentencing and Punishment of Offenders Act 2012, to repeal imprisonment for public protection and the 2003 extended sentence and to substitute a different overall scheme. That scheme retained discretionary life imprisonment where life was the maximum, added a narrowly available obligatory life sentence for certain repeat offending, and created a new extended determinate sentence. The new extended sentence was not a direct replacement for imprisonment for public protection, and the old and new regimes had to be considered as wholes.
A commencement order brought the relevant provisions into force on 3 December 2012. Article 6 provided that the abolition had no effect in relation to a person convicted before that date. Docherty had pleaded guilty on 13 November 2012, so imprisonment for public protection remained available at his sentence on 20 December. The court construed the new extended-sentence provision as applying to convictions after commencement, not merely to later sentencing hearings. The resulting timetable therefore preserved the old options, and excluded the new obligatory life sentence and extended determinate sentence, where conviction preceded 3 December 2012 but sentence followed it.
Lex mitior
Docherty’s principal argument was that preserving the old sentence breached the principle of lex mitior. Article 7 of the European Convention expressly prohibits a heavier penalty than was applicable when the offence was committed. A separate principle, expressed in other international instruments, says that an offender should benefit if the law later provides a lighter penalty. In Scoppola v Italy (No 2) the Strasbourg court treated that principle as implicit in article 7, although an additional sentence to that effect had deliberately been omitted when article 7 was drafted and earlier Convention decisions had rejected the argument.
Lord Hughes, with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Carnwath agreed, held that English practice already sentences according to the law and practice prevailing at sentence, provided the sentence does not exceed the maximum to which the offender was exposed at the time of the offence. It was therefore unnecessary to reopen the controversy over inserting wording into article 7. The court also rejected any wider suggestion that a defendant may insist on the most favourable rule existing at any intermediate point, even if that rule has since been abandoned. Such an extension was not clearly adopted in Scoppola, did not follow from the stated rationale of avoiding a penalty now regarded as excessive, and would produce unjustified results.
Nor did lex mitior allow Docherty to anticipate commencement. New sentencing regimes commonly require phased introduction, especially where some new options are more severe, old and new options cannot fairly coexist, and administrative and release arrangements must be put in place. The commencement date is part of the change. Until it arrives, the state has not yet adjudged the former penalty excessive for offenders in that position. The argument also sought accelerated removal of imprisonment for public protection while retaining another part of the old regime. Had the new scheme already been in force for him, English practice would have applied it despite the earlier offence date; it had not been brought into force for his case.
The Court of Appeal had additionally reasoned that lex mitior could not help if there was a reasonable possibility of a life sentence in the absence of imprisonment for public protection. The Supreme Court agreed that the trial judge might well have imposed life imprisonment, and that later authority showed courts might need to consider life sentences in cases previously dealt with by imprisonment for public protection. That further point did not arise: had the indeterminate sentence been wrong in principle, the appeal court itself would have had to decide whether life imprisonment was the correct sentence.
Statutory purpose and discrimination
The alternative argument, based on the Padfield principle, was that preserving imprisonment for public protection after LASPO contradicted the statute’s purpose, so the saving in the commencement order was ultra vires. It failed for the same reason. Phased commencement was rational and consistent with the statutory purpose; the appellant could not use that principle to bring the abolition forward.
The discrimination argument compared Docherty with an otherwise similar offender convicted on 4 December 2012, for whom imprisonment for public protection would not have been available. Even assuming that the mere date of conviction could be a relevant status, the difference was justified. Every sentencing change must begin somewhere, and a difference between those sentenced just before and just after the chosen point is inherent in the change. Conviction was a rational trigger. A status defined entirely by the treatment complained of could not itself engage article 14.
Verdict: The Court unanimously dismissed Docherty’s appeal. The transitional provision lawfully preserved imprisonment for public protection in his case, and his sentence stood.
Source: R v Docherty [2016] UKSC 62
