Gorman v R.

Article 7(1) of the European Convention on Human Rights is infringed only where the sentence imposed is heavier than the penalty which could lawfully have been imposed when the offence was committed. Even if manslaughter is treated as committed on the date of the unlawful assault, a later sentence of imprisonment for public protection does not breach Article 7 where life imprisonment was then available for manslaughter. The court need not resolve whether, for Article 7, the relevant date is the conduct or the later death where the assumed earlier date does not assist the offender.

The appellant participated in an attack in 2003 which left the victim in a permanent vegetative state. The victim died in 2006. In May 2008, at Ipswich Crown Court, the appellant was acquitted of murder but convicted of manslaughter.

He was sentenced to imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a specified minimum period of four and a half years less time spent in custody. He appealed on the ground that the sentence breached Article 7 because the statutory sentence became available after the assault. The central issue was whether the sentence was a heavier penalty than one applicable when the offence was committed.

1. Appeal dismissed. The court granted leave to appeal but rejected the Article 7 challenge to the sentence of imprisonment for public protection.
2. Section 225 of the Criminal Justice Act 2003 had entered into force after the assault but before the victim's death. The sentencing judge was entitled to regard imprisonment for public protection as appropriate after the manslaughter conviction. The court also accepted that an appellate court would not normally interfere with that assessment.
3. The court held that Article 7(1) prohibits only a penalty heavier than that which could have been imposed under the law in force when the offence was committed. It applied the interpretation stated in Uttley v Secretary of State [2004] UKHL 38.
4. Manslaughter was not complete until the victim died. The court left unresolved whether Article 7 nevertheless required the offence to be treated as committed when the appellant assaulted the victim. Assuming that earlier date in the appellant's favour, his conduct would then have constituted manslaughter if death resulted, and life imprisonment was available. The imposed sentence was therefore not a heavier penalty for Article 7 purposes. It was impermissible to speculate that a judge applying the earlier law would instead have selected a determinate term of four and a half years.
5. The sentencing judge had miscalculated the effect of credit for 1,711 days in custody: that period already exceeded four and a half years. The error did not affect the validity of the sentence, and the court made the necessary correction.

• Court of Appeal (Criminal Division) — In [2008] EWCA Crim 2907, granted leave but dismissed the appeal against the sentence. It corrected the calculation of time already served.
• Ipswich Crown Court — On 23 May 2008, convicted the appellant of manslaughter and acquitted him of murder. On 10 July 2008, imposed imprisonment for public protection with a specified minimum period of four and a half years, less 1,711 days in custody.