Docherty, R v

An indeterminate sentence of imprisonment for public protection may properly be imposed under the transitional sentencing regime where the offender was convicted before the statutory commencement date and the risk of serious violent offending cannot be addressed within an ascertainable period. A court need not select an extended sentence where it would not provide adequate public protection.

Article 7 of the Convention encompasses the principle that a later, more lenient criminal law may apply before final judgment. That principle does not assist an offender if, under the later regime, there is a real possibility of a life sentence. Transitional distinctions based on a conviction date do not, without more, establish unjustified discrimination under Article 14.

The appellant pleaded guilty at Shrewsbury Crown Court to two offences of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. He stabbed two fellow hostel residents after drinking heavily. He had a previous conviction for a similar offence, a longstanding pattern of alcohol-fuelled violence, and was assessed as presenting a very high risk of violent reoffending.

The judge found him dangerous and imposed imprisonment for public protection with a minimum term of five years and four months. The appellant appealed against sentence. He contended that an old-style extended sentence should have been imposed and that the abolition of imprisonment for public protection before sentence required a lesser sentence under Articles 5, 7 and 14 of the Convention and the principle of lex mitior.

1. Appeal dismissed. The judge was entitled to impose imprisonment for public protection. The appellant had been convicted before 3 December 2012. Article 6 of the relevant commencement order therefore preserved that sentencing option, although it had been abolished for later convictions.

2. The court accepted the approach in C & ors [2009] 1 WLR 2158: imprisonment for public protection should not be imposed if lesser measures will adequately protect the public. Here, however, the sentencing judge could not identify when the appellant’s alcohol dependence, violent attitudes and resulting risk could be controlled. An old-style extended sentence was not an adequate alternative.

3. The Article 14 argument failed. The House of Lords decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 bound the court. Classification simply as a prisoner did not constitute “other status”, notwithstanding the later Strasbourg decision in Clift v UK. In any event, Parliament could legitimately use a conviction date to determine the application of a reformed dangerous-offender regime. Differences arising at a statutory transition were inherent in legislative change and objectively justifiable.

4. The court was bound to follow the Grand Chamber interpretation of Article 7 in Scoppola v Italy (No.2) [2010] 51 EHRR 12. Article 7 consequently includes the principle of lex mitior. But the inquiry was not resolved merely because life imprisonment remained the statutory maximum. Applying Attorney General’s Reference No.27 of 2013 (Burinskas) & other appeals [2014] EWCA 334, the question was whether a life sentence was a real possibility under the post-LASPO regime.

5. It was. The sustained knife attack, the serious and lasting injuries, the appellant’s previous section 18 conviction, and his continuing very high risk of grave violence made life imprisonment a realistic sentencing outcome under the new regime. Accordingly, even assuming that lex mitior applied domestically, it did not require the court to impose an old-style extended sentence. The sentence was neither excessive nor wrongly imposed.

• Court of Appeal (Criminal Division) Dismissed the appeal against the sentence of imprisonment for public protection.
• Shrewsbury Crown Court On 20 December 2012, following guilty pleas entered on 13 November 2012, imposed imprisonment for public protection with a minimum term of five years and four months for two section 18 offences.