IPPs and the Principle of Lex Mitior
| Published date | 01 June 2017 |
| Date | 01 June 2017 |
| Author | Andrew Beetham |
| DOI | 10.1177/0022018317706839 |
| Subject Matter | Case Notes |
Case Note
IPPs and the Principle of Lex Mitior
Keywords
Imprisonment for public protection, Article 5 ECHR, Article 7 ECHR, Article 14 ECHR,
lex mitior,ultra vires
RvDocherty (Shaun) [2016] UKSC 62; [2017] 1 WLR 181
On 1 May 2012, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) received
Royal Assent. Section 123 provided for the abolition of the sentence of imprisonment for public
protection (IPP). However, it was enacted that the abolition would occur on such day as designated
by the Lord Chancellor. On 17 November 2012, the Legal Aid, Sentencing and Punishment of Offenders
(Commencement No. 4 and Savings Provisions) Order 2012 (SI 2012/2906) (the Commencement Order)
provided that s. 123 would commence on 3 December 2012. As a result anyone convicted before 3
December 2012, and who met the eligibility criteria, could still be sentenced to IPP despite its abolition.
On 13 November 2012, the appellant was convicted (having pleaded guilty) of two counts of wound-
ing with intent to cause grievous bodily harm (contrary to s. 18 Offences against the Person Act 1861)
and on 20 December 2012, he was sentenced to IPP (with a minimum term of 5 years 4 months). His
appeal against sentence was dis missed by the Court of Appeal ([201 4] EWCA Crim 1197), but it
nonetheless certified a point of general public importance ([2014] EWCA Crim 1582 at [2]). The
Supreme Court subsequently granted the appellant permission to appeal as well as permission for the
secretary of state for justice to intervene.
The appellant submitted that the sentence of IPP he received was unlawful because (i) ‘the new
scheme was less severe than the earlier one and therefore to apply the earlier was unlawful as contrary to
an international principle of “lex mitior”...’; or (ii) ‘the purpose of LASPO was to remove IPP from the
armoury of sentencing, and therefore transitional provisio ns which preserved it to any extent were
outside the authority given by that statute’; or (iii) ‘to impose an IPP on him, but not on a person
convicted after the LASPO commencement date, amounted to unlawful discrimination against him’
(contrary to arts 5 and 14 European Convention on Human Rights (ECHR)) (at [1]).
HELD, DISMISSING THE APPEAL, that: (i) although the principle of lex mitior was recognised
practice under English law in its ordinary form, there was no injustice to the appellant who was
sentenced according to the regime applicable to him at the time of his conviction (at [45]); (ii) the
Commencement Order was not ultra vires as there was nothing irrational in a phased commencement of
a statute nor had the Commencement Order been made for an improper purpose (at [61]); and (iii) even if
the date of the appellant’s conviction amounted to a ‘status’ within the meaning of art. 14, the difference
in treatment was justified because it was inherent in the change of sentencing regimes (at [63]).
Commentary
In this case, the appellant effectively wanted to ‘have his cake and eat it’ by arguing that an extended
sentence for public protection (EPP) was the more appropriate sentence in his case and not the sentence
The Journal of Criminal Law
2017, Vol. 81(3) 232–235
ªThe Author(s) 2017
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