Knights v R.

Article 7 ECHR does not require a sentencing court to anticipate a more lenient statutory regime which Parliament has enacted but has not yet brought into force. The ordinary lex mitior principle requires sentence under the law and practice prevailing when sentence is passed, subject to the prohibition on a heavier penalty than was available when the offence was committed.

A temporal difference in the availability of a sentencing regime is inherent in a lawful legislative change and is objectively justified for Article 14 purposes. An IPP sentence lawfully imposed does not become disproportionate merely through time or detention after tariff. A sentence appeal is a review of the original sentence, not supervision of its later operation.

The appellant received an IPP sentence at Ipswich Crown Court on 26 June 2008, with an eight-month minimum term. The Criminal Justice and Immigration Act 2008 had received Royal Assent but its amendments restricting IPP eligibility did not come into force until 14 July 2008. Had he been sentenced after that date, IPP would not have been available on these facts.

A previous sentence appeal had been dismissed in R v Knights [2011] EWCA Crim 2533. The Criminal Cases Review Commission referred a further appeal on the contention that Article 7 ECHR and lex mitior required application of the later regime. The appellant also sought leave to advance Article 14 and Articles 3 and 5 grounds arising from his continuing detention and recalls following release on licence.

1. The appeal was dismissed. Leave to advance the additional Article 14 and Articles 3 and 5 grounds was refused.

2. The court was bound by, and agreed with, R v Docherty [2016] UKSC 62. The ordinary domestic operation of lex mitior is that an offender is sentenced according to the law and practice prevailing at sentence, while Article 7 prevents a heavier penalty than was applicable when the offence was committed. It does not permit a court to apply a statutory change before its appointed commencement date.

   The 2008 amendments made important changes at the heart of the IPP regime, including the statutory conditions for its availability. They could not be distinguished from the uncommenced abolition considered in R v Docherty. Parliament had made the changes prospective, and the commencement arrangements excluded persons sentenced before their effective date. The appellant was therefore not entitled to their benefit.

3. The proposed Article 14 ground was unarguable. The court maintained its view that the appellant's position did not constitute the required “other status”. In any event, even assuming that it did, the different treatment of offenders sentenced on opposite sides of a commencement date was objectively justified. Such a difference is inherent in a lawful change to sentencing law.

4. The proposed Articles 3 and 5 ground was also unarguable. The minimum term of an IPP sentence is punitive, but detention after it expires is for public protection and continues only while the Parole Board considers the offender presents a risk. A sentence lawfully imposed does not become disproportionate merely because time has passed, particularly where recalls followed breaches of licence conditions.

   The Criminal Division reviews whether the original sentence was lawful, wrong in principle or manifestly excessive. It does not reconsider a sentence years later as a supervisory response to prison conditions, delay, courses, or subsequent developments. Challenges to the later operation of an IPP sentence must instead be pursued through judicial review, the Parole Board, or the appropriate executive and legislative mechanisms.

1. Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, dismissed the Article 7 appeal and refused leave to raise the additional human-rights grounds in [2017] EWCA Crim 1052.

2. Court of Appeal (Criminal Division): Dismissed the earlier appeal against sentence in R v Knights [2011] EWCA Crim 2533.

3. Ipswich Crown Court: On 26 June 2008 imposed concurrent IPP sentences with an eight-month minimum term.