Docherty, Regina v: SC 14 Dec 2016

After conviction on his own admission for wounding with intent, and with a finding that he posed a threat to the public, the defendant was sentenced to imprisonment for public protection. Such sentences were abolished with effect from the day after his conviction. He said that the court had failed to apply the principle of lex mitior.
Held: The appeal failed: ‘English practice recognises 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 (ie in England normally the maximum) provided for at the time the offence was committed.’
The lex mitior represents a norm of a different order from the principle of no punishment without law. Whilst the lex gravior principle is a fundamental and essential condition of freedom, lex mitior: ‘expresses a choice that reflects the development of a social process in the context of criminal law. It circumscribes the scope of criminal law by preserving benefits accruing to defendants as a result of substantive laws subsequent to the commission of the offence and applicable while the case was pending.’ Whereas lex gravior prohibits applying to a case a rule which was not the law when the acts under judgment were committed, lex mitior, when it operates, actually requires such a rule to be applied.
‘There is a very clear difference between (1) a principle which prevents a court from imposing a penalty above and outside the range currently provided for by the State as appropriate to the crime and (2) a principle which requires the court to seek out and apply the most favourable rule which has existed at any intervening time since the offence was committed, even if it has since been abandoned. The first would fall within the rationale of confining the court to a range currently considered appropriate for the offence; the latter would not. The difference between the two is not adverted to, still less explored, in the judgment in Scoppola. It is, accordingly, by no means clear that the court intended to expand its incorporation of lex mitior into article 7 by including the latter proposition.’
‘Sentencing legislation and practice may well go up and down as public policy is held by legislators to change, or current responsible views on particular offending are perceived by courts to develop. But there is no injustice to a defendant to be sentenced according either to the law as it existed at the time of his offence or, if more lenient, according to the law as it exists when he is convicted and sentenced. To insist that a defendant should not be sentenced on a basis now authoritatively regarded as excessive is one thing. It is quite another to say that he should be sentenced according to a practice which did not obtain when he committed the offence and does not obtain now, merely because for some time in the interim, however short, a different practice was adopted which has now been abandoned as wrong.’
and ‘the new regime was not in force for his case. It was the subject of legitimate phased introduction. . lex mitior does not entitle Docherty to anticipate the statutory commencement of LASPO. The case made on his behalf was . . that he ought to have been sentenced to EPP. That exposes the flaw in the 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).’
Lord Neuberger, President, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes
[2016] UKSC 62, UKSC 2014/0207, [2017] 1 Cr App R (S) 31, [2017] 1 WLR 181, [2017] 4 All ER 263, [2016] WLR(D) 667
Bailii, Bailii Summary, SC, SC Summary, WLRD
Legal Aid, Sentencing and Punishment of Offenders Act 2012, European Convention on Human Rights 791)
England and Wales
CitedJames, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .
CitedBerlusconi (Law Relating To Undertakings) 2 ECJ 3-May-2005
Company law – Article 5 of the EEC Treaty (subsequently Article 5 of the EC Treaty, in turn Article 10 EC) and Article 54(3)(g) of the EEC Treaty (subsequently Article 54(3)(g) of the EC Treaty, in turn, after amendment, Article 44(2)(g) EC) – First . .
CitedLang and Others, Regina v CACD 3-Nov-2005
In each case the defendant had commited violent or sexual offences and were caught by the new mandatory sentencing provisions, and been made subject to life imprisonment, or detention for public protection, or an extended sentence.
Held: The . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedUttley, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2004
In 1995 the defendant was sentenced to twelve years for rapes committed in 1983. He complained that the consequences of the later sentence were adverse because of the 1991 Act. He would now serve three quarters of the sentence rather than two . .
CitedUttley v United Kingdom ECHR 29-Nov-2005
. .
CitedSecretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
CitedScoppola v Italy (No 2) ECHR 17-Sep-2009
(Grand Chamber) The applicant murdered his wife on 2 September 1999; the offence was punishable by life imprisonment. On 18 February 2000, he agreed to be tried under a summary procedure. It lacked some of the safeguards of a full trial but carried . .
CitedRegina v DP CACD 2013
The court considered an offence committed before 3 April 2005 when the CJA 2003 came into effect, and was sentenced before 3 December 2012 when new sentencing rules came into effect changing the 2003 rules.
Held: The Court upheld a sentence of . .
CitedSaunders and Others v Regina CACD 28-Jun-2013
Appeals against sentence a non mandatory sentence of life imprisonment.
Held: There may be cases where a discretionary life sentence is justified for an offence outside Schedule 15 if its gravity and the danger presented by the defendant are . .
CitedBurinskas, Regina v, (Attorney General’s Reference (No 27 of 2013)) CACD 4-Mar-2014
Effect upon sentencing of amendments to dangerous offender provisions . .
At CACDDocherty, Regina v CACD 18-Jun-2014
The defendant appealed against his sentence to a term of imprisonment for public protection on his admission of wounding with intent. The sentencing system applied was replaced on the day following sentencing, and he said that the court should have . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
CitedBoakye and Others, Regina v CACD 3-Apr-2012
The defendants appealed their sentences for importation of class A drugs. They had acted as drugs mules. New guidelines were due to take effect which be expected to have led to shorter sentences. The court was asked whether such new standards could . .
CitedZaprianov v Bulgaria ECHR 6-Mar-2003
ECHR ‘Article 7 does not guarantee the right to have a subsequent and favourable change in the law applicable to an earlier offence.’ . .
CitedLe Petit v United Kingdom ECHR 5-Dec-2000
(Admissibility) . .
CitedCoeme and others v Belgium ECHR 22-Jun-2000
The mischief that Article 7 is designed to prevent is the imposition by the State of (i) criminal liability for an act which did not attract such liability at the time it was committed or (ii) a penalty greater than the maximum permitted when the . .
CitedMaktouf and Damjanovic v Bosnia And Herzegovina ECHR 18-Jul-2013
(Grand Chamber) The effect of the change was to alter the range for the defendant Maktouf (an accomplice) from 1-15 to 5-20 years. For the defendant Damjanovich (a principal) the range was altered from 5-15 to 10-20. Maktouf was expressly sentenced . .

Cited by:
CitedStott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.572396