Supreme Court

Regina v Docherty (Shaun)

[2016] UKSC 62; [2016] WLR (D) 667

2016 May 3, 4

Lord Neuberger of Abbotsbury PSC, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes JJSC

Crime — Sentence — Imprisonment for public protection — — Defendant convicted of wounding with intent and regarded as posing a threat to the public — Change of sentencing regime between defendant’s conviction and sentence — Imprisonment for public protection abolished in respect of those convicted on date after that on which defendant convicted — Defendant sentenced to imprisonment for public protection — Whether sentence excessive because principle of lex mitior not applied — Whether defendant subjected to discrimination — Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c 10), s 123 — Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012/2906)


On 13 November 2012 the defendant pleaded guilty to two offences of wounding with intent, contrary to section 20 if the Offences against the Person Act 1861. On several previous occasions he had been convicted of offences of serious violence and probation and psychiatric reports indicated that there was a high risk that he would commit further offences of violence. On 3 December 2012 section 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was brought into force by article 3 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 4 and Saving Provisions) Order 2912, and sentences of imprisonment for public protection (“IPP”) were thereby abolished in respect of convictions after that date. Article 6 of the Order, which had been made on 17 November 2012, stated that the provisions of the 2012 Act were of no effect in relation to a person convicted before 3 December 2012. On 20 December 2012 the defendant was sentenced to an indeterminate sentence of imprisonment for public protection pursuant to a scheme established under the Criminal Justice Act 2003. The defendant appealed against sentence on the ground that the judge had failed to consider whether or not lesser restrictions including an extended sentence for public protection (“EPP”) would have enabled proper protection of the public. The Court of Appeal dismissed the appeal and held that there was no fault in the course which the judge had taken to meet the concerns about the danger posed by the defendant which stretched beyond any ascertainable time frame, that a sentence of IPP was clearly suited to the defendant’s case in a way that EPP was not and that if IPP had not been available the judge might have passed a life sentence which was the maximum sentence prescribed for the offences committed by the defendant. The defendant appealed on the grounds, inter alia, that article 6 of the Order was unlawful because, to apply the earlier harsher scheme to him was contrary to the international principle of lex mitior which was binding on the English courts by virtue of article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Human Rights Act 1998

On the defendant’s appeal —


Held, appeal dismissed. English common law practice recognised lex mitior, at least in the narrower form of abstaining from imposing a sentence which had by then been recognised by law as excessive. English criminal courts sentenced according to the law and practice prevailing at the time of sentence, whenever the offence was committed, subject only to the lex gravior principle of article 7, namely that no sentence must be imposed which exceeded that to which the defendant was exposed at the time of committing the offence; In English law the maximum sentence was prescribed by statute and a sentence within that maximum was a matter for the judgment of the judge, having regard to the individual aggravating and mitigating factors relating to the offence and the offender. Lex mitior prevented the imposition of a sentence which the system had now adjudged, by a change of law, to be excessive but the anticipation of a change which was yet to take effect was no part of lex mitior. English domestic law recognised lex mitior in its ordinary form, namely the principle that an offender should be sentenced according to the law and practice prevailing at the time of his sentence, subject to not exceeding the limits of the maximum sentence provided for at the time the offence was committed. There was no injustice to a defendant to be sentenced according to the law as it existed at the time of his offence. The new regime of sentencing had not come into force at the time the defendant fell to be sentenced and he was not entitled to anticipate the statutory commencement of the abolition of IPP. The sentence to which the defendant had been exposed at the time of his offence was, by English law, a sentence up to the maximum then permitted. There was nothing irrational or contrary to the statutory purpose in the commencement period set out in article 6 of the Order. The defendant’s status as a person convicted prior to 3 December 2012 did not give rise to discrimination as against a person convicted after that date.

Scoppola v Italy (No 2) [2010] 51 EHRR 12 considered.

Appellate History

Decision of the Court of Appeal [2014] EWCA Crim 1197; [2014] 2 Cr App R (S) 76 affirmed.


Kirsty Brimelow QC and Philip Rule (instructed by E B R Attridge Solicitors) for the defendant.

John McGuiness QC and Simon Heponstall (instructed by Crown Prosecution Service) for the Crown.

David Perry QC and Melanie Cumberland (instructed by Treasury Solicitor) for the Secretary of State for Justice intervening.

Reported by: Shiranikha Herbert, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.