R v Docherty
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lord Neuberger,Lord Mance,Lord Reed,Lord Carnwath |
| Judgment Date | 14 December 2016 |
| Neutral Citation | [2016] UKSC 62 |
| Court | Supreme Court |
[2016] UKSC 62
Lord Neuberger, President
Lord Mance
Lord Reed
Lord Carnwath
Lord Hughes
Appellant
Kirsty Brimelow QC Philip Rule (Instructed by EBR Attridge, Solicitors)
Respondent
John McGuinness QC Simon Heptonstall (Instructed by Crown Prosecution Service Appeals and Review Unit)
Intervener (Secretary of State for Justice
David Perry QC Melanie Cumberland (Instructed by The Government Legal Department)
(with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Carnwath agree)
The appellant Shaun Docherty fell to be sentenced in the Crown Court for offences of serious violence. He was on any view a high risk of further, and perhaps worse, serious violence. At the time when he was sentenced the statutory scheme for the sentencing of offenders who represent a future public danger was in the course of change. The scheme provided for by the Criminal Justice Act 2003 ("the CJA 2003"), as amended, was being replaced by a different one under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (" LASPO"). The transitional provisions made by the Commencement Order for LASPO preserved the old scheme sentences if the conviction was before the prescribed commencement date. Docherty 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 he contended that the Commencement Order containing the transitional provisions was, to the extent that it preserved IPP for him, unlawful. He submitted that this was so for one or more of three reasons:
(a) because 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", which is binding on the English court via article 7 of the European Convention on Human Rights ("ECHR"), as explained by the Strasbourg court in Scoppola v Italy (No 2) (2010) 51 EHRR 12 (" Scoppola"); or
(b) because the purpose of LASPO was to remove IPP from the armoury of sentencing, and therefore transitional provisions which preserved it to any extent were outside the authority given by that statute; or
(c) because 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 article 14 of the ECHR, read with article 5.
Docherty was born in April 1978. By the time he came to be sentenced in December 2012 on the occasion now under scrutiny he was 34 years of age. He had been convicted on 16 previous occasions of some 28 offences. There was a clear pattern of aggressive offending, usually fuelled by alcohol, supplemented in some cases by cannabis. His offences included affray, other public order offences, criminal damage and, most significantly, violent offences causing injury to others.
In 1997 he was convicted of two violent offences, one of unlawful wounding (section 20 Offences against the Person Act 1861) and the other of causing grievous bodily harm with intent (section 18 of the same Act). They were separate incidents. In the first, he had punched and kicked another man to the head and body. In the second, he had forced his way into the flat of his stepfather in what he later said was a punishment expedition in revenge for suggested misbehaviour by that man towards Docherty's mother. He had broken the other's jaw in two places and inflicted cuts to his head. For these two offences he was sentenced to five years' imprisonment.
On 12 July 2012 he started an altercation with two drinking companions, Cook and Lord. He persisted although Lord avoided confrontation. He slapped Cook in the face. When the other two sought to leave, he went and fetched a vegetable paring knife and, on his return, stabbed Cook in the back of the neck, the back and chest, some of the wounds inflicted as Cook tried to crawl away. There were at least six stab wounds in all and the knife was left embedded in his chest. Lord had tried to protect Cook, but Docherty stabbed him also in the face and head. Cook's kidneys were damaged and he was in hospital for four days. Lord sustained a deep penetrating wound to the scalp together with other injuries to the head, arms and hands. Both victims were significantly affected by what had happened to them. These events gave rise to two counts of wounding with intent to do grievous bodily harm, contrary to section 18 Offences against the Person Act 1861. In due course Docherty admitted them and pleaded guilty in the Crown Court.
Between release from the five year sentences imposed in 1997 and the commission of these new and more serious offences, he had been either convicted or cautioned for drunken disorder or violence in 2004 (twice), 2005, 2006 (twice), 2007, 2009 and 2010, and then on four different occasions between late May and the beginning of July of 2012. Two of these incidents were relatively minor, involving arriving very drunk at the police station either threatening that he would knock someone out if not taken home or reporting that he had broken a number of windows. The police domestic violence unit had, however, also been called out to three further incidents of drunken aggression on his part.
Reports from the probation officer and a consultant forensic psychiatrist confirmed that what lay behind this pattern of behaviour was long-standing alcohol abuse. There was no mental health disability. Docherty was aware of his alcohol problem, and from time to time expressed remorse. His sister had written a letter supportive of him and expressing faith in his underlying goodness of heart. But it was clear that he was not in control of himself. Moreover, the probation officer's assessment was that he tended to use violence as a means to gain compliance from others and to solve problems. So his was a case of injuries thus far inflicted which were grave and it was largely a matter of chance that they had not been graver, or indeed fatal. He posed the risk of further attacks, with similar or worse consequences; the probation officer described that risk as "very high".
The statutory maximum sentence for the offences of which Docherty was convicted is, and has been for well over a century, life imprisonment. The judge passed a sentence of IPP on 20 December 2012. He specified five years and four months as the period which had to pass before the Parole Board could consider release on licence. That was done under the rules for the construction of an IPP sentence which are set out in para 9 below. The sentence meant that Docherty will be eligible for consideration for parole after five years and four months, thus in 2018, but before such release on licence can occur the Parole Board will have to be satisfied that it is no longer necessary for the protection of the public that he be detained. There is no complaint that, if IPP was available, the sentence was either excessive or incorrectly calculated.
The CJA 2003 had introduced a new scheme of preventive sentencing for dangerous offenders, there defined as those who are convicted of specified offences and who present a significant risk to the public of serious harm (death or serious personal injury) from further serious offending. That Act was by no means the first to address the sentencing of offenders posing a future risk. An early example was a system of preventive detention for habitual criminals (section 10 of the Prevention of Crime Act 1908), and different provisions were made by statute from time to time thereafter. Immediately before 2003, the solution adopted to the problem was the authorisation of determinate sentences for the dangerous which were longer than "commensurate", ie longer, on grounds of future risk, than would be appropriate simply to the facts of the current offence (section 2(2)(b) Criminal Justice Act 1991). The CJA 2003 removed that power and substituted a new scheme. It consisted, for dangerous adult offenders, of a menu of three possible sentences alongside ordinary determinate or non-custodial sentences: (1) life imprisonment where the offence- creating section provided that as the maximum available, (2) IPP and (3) an extended sentence. There were broadly equivalent sentences for those under 18.
IPP was a new form of sentence. The judge was required to specify a minimum period before which there could be no eligibility for parole. In effect he had to identify what the hypothetical determinate sentence for the offence would have been if "commensurate", that is calculated purely by reference to the gravity of the offence and the responsibility of the offender, without consideration of future risk. Then the judge had to specify half that term as the period before parole was possible (half, because the hypothetical prisoner sentenced to a determinate sentence would, under the CJA 2003, serve half his term in prison and the second half on licence). After the specified minimum period had been served, the IPP prisoner was eligible for release providing that the Parole Board was satisfied that it was no longer necessary for the protection of the public that he be detained. These release provisions were for most practical purposes the same as (although not quite identical to) those which applied and still apply to life sentences: see R v Lang [2005] EWCA Crim 2864; [2006] 2 Cr App R (S) 3, at para 8. But IPP was available, if the offender met the statutory test of serious danger to the public, for those specified offences which did not otherwise carry life imprisonment as well as for those which did.
The...
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