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R v Docherty - (14 Dec 2016)

Difference of treatment is inherent in change in law, if it were to be objectionable discrimination, it would be impossible to change law


Appellant sentenced in the Crown Court for offences of serious violence. At the time, when Appellant was sentenced, the statutory scheme for sentencing of offenders who represent a future public danger was in the course of change. Scheme provided for by Criminal Justice Act 2003 ("the CJA 2003"), as amended, was being replaced by a different one under Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"). The transitional provisions made by Commencement Order for LASPO preserved the old scheme sentences, if the conviction was before the prescribed commencement date. Appellant was convicted before that date and was accordingly sentenced, after it, to an indeterminate sentence of imprisonment for public protection ("IPP") under the scheme of the CJA 2003, although that form of sentence was in the course of being abolished for the future. In his appeal against sentence, Appellant contended that, Commencement Order containing transitional provisions was, to the extent that it preserved IPP for him, unlawful.

Introduction of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) was lawful. Article 7 ECHR requires that there be no punishment without law. No sentence may be imposed which exceeds that to which the defendant was exposed at the time of committing the offence (“lex gravior”). Since, statutory maximum for Appellant’s offences was the same at the time of offence and sentence, principle of lex gravior is not offended. Lex mitior does not entitle Appellant to anticipate statutory commencement of LASPO. Case made on his behalf was, both in the Court of Appeal, and before this Court, that he ought to have been sentenced to EPP. That exposes the flaw in argument, for it would seek to insist on the benefit of (accelerated) removal of one part of the old regime (IPP) whilst at the same time claiming the preservation of another part of it (EPP).

IPP and EPP disappear from the sentencing armoury on 3 December 2012, except for anyone already convicted but not yet sentenced, as in case of the Appellant. If the new LASPO regime had been commenced for a defendant in Docherty's position at the time he fell to be sentenced, then in accordance with English practice, it would have been applicable to him, notwithstanding that his offence had been committed before the change in the law.

Court of Appeal also upheld sentence of IPP on an additional basis. But it adverted to the fact that Docherty's offences were punishable by a maximum of life imprisonment. It correctly rejected conclusion that maximum was, by itself, enough to show that no question of lex mitior arose. It by no means follows that, every case which would have been met by IPP will now be met by a life sentence. But Court of Appeal went on to hold that, lex mitior principle did not apply if there was a reasonable possibility that, had IPP not been legitimately applicable, Docherty would have been sentenced to life. Since, there was real possibility that such a sentence would have been passed, that was held to constitute a further reason for dismissing the appeal.

All changes in sentencing law have to start somewhere. It will inevitably be possible in every case of such a change to find a difference in treatment as between a Defendant sentenced on the day before the change is effective and a Defendant sentenced on the day after it. Difference of treatment is inherent in the change in the law. If it were to be objectionable discrimination, it would be impossible to change the law. There are number of points which may be taken as triggering the change of regime. The point of conviction is clearly one, and point of sentence is another. Neither is, by itself, irrational or unjustified.


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