The transcript is available here: R v Docherty  EWCA Crim 1197
Shaun Docherty pleaded guilty to two charges of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 20 December 2012 he was sentenced by the learned judge to a term of imprisonment for public protection (“IPP”) with a specified minimum custodial term of 5 years and 4 months.
The facts are unimportant for the purposes of the case, but are recounted in the judgment, with some additional information surrounding the proceedings, at paras  – .
The probation service concluded that a) he posed a high risk of serious harm – in summary, considered him to be ‘dangerous’ – b) there was a very high risk of violent re-offending, and c) the most appropriate sentence was IPP.
The Judge had regard to that report and found that Docherty was indeed ‘dangerous’ and imposed an IPP sentence.
There was no challenge to the length of the minimum term.
Where to start? Well IPP was repealed on 3 December 2012. Docherty was sentenced on 20 December 2012, a short while before the repeal was effective.
At that time, the scheme for sentencing dangerous offenders – where a judge considers that a defendant poses a significant risk of serious harm to members o the public – was as follows:
1) Life sentence (discretionary, under common law or CJA 2003 s.225)
2) IPP (CJA 2003 s.225)
3) Extended sentences or ‘EPP’ (the previous incarnation, CJA 2003 s 227)
The grounds of appeal were as follows:
a) The judge failed to consider whether lesser restrictions, including the old style extended sentence of public protection (“EPP”) under the 2003 Act, instead of IPP would have enabled proper protection of the public.
b) The abolition of IPP prior to the sentencing in this case obliged the court to impose an EPP rather than an IPP in order to comply with Article 7 (or Articles 5 and 14) of the European Convention on Human Rights (“ECHR”) and the international norm and principle of “lex mitior”.
In essence, the argument was that IPP was wrong in principle.
The first ground
‘The Judge failed to consider whether a lesser sentence would have enabled proper protection of the public.’
In C & Others  1 WLR 2158 the Lord Chief Justice stated that IPP was the “most draconian sentence” apart from life, and that it should not be imposed if an overall sentence package of lesser measures provides appropriate protection to the public. 
The Court of Appeal accepted that ‘ the judge did not expressly give reasons in his judgment for not adopting the alternative of an extended sentence, with other precautionary measures.’ 
However, the Court found that the reason was ‘entirely clear’, namely that:
i) the judge was unable to discern the time scale within which the danger posed by the appellant could be addressed, controlled and (hopefully) eliminated.
ii) a discretionary life sentence had been discounted (due to the availability of IPP.
iii) there was a perceived need for the parole board to assess the risk posed by Docherty (which was not available under the EPP regime). 
The Court concluded: ‘We have no doubt that he had the full range of options in mind, and that he gave the issues full consideration even if he did not spell them out explicitly.’  and ‘The sentence of IPP was clearly suited to this case in a way that an old style extended sentence was not. 
The second (more interesting) ground
‘The abolition of IPP required the court to impose and EPP sentence (not IPP) as to not do so would offend ECHR article 7, 5 and 14 and the principle of lex mitior.’
The ECHR can be found here.
The Court divided the issues into two:
Article 5 and 14
It was agreed by the parties that the issue fell within the ambit of article 5 (the right to liberty and security-with listed exceptions) and so that if there has been discrimination towards the appellant on a ground encompassed by Article 14 (the prohibition on discrimination), that Article is breached in the absence of objective justification.
The basic argument was that there was no objective justification for the treatment received by Docherty since it was dictated by the date upon which he had been convicted in circumstances where a lesser penalty would have been imposed had he been convicted after 3 December 2012 (because IPP was not available), and thus prior to his date of sentencing on 20 December 2012.
Docherty claimed that the discrimination alleged did not fall into any of the listed catgeories, and so fell into the ‘other’ category.
The Court did not agree. The decision in R (Clift) v Secretary of State for the Home Department  1 AC 484 held that classification as a prisoner was insufficient to amount to “other status” for the purposes of Article 14. 
Interestingly the European Court of Human Rights came to the opposite conclusion in Clift v UK [Application 7205/07] however, relying on Kay & Others v Lambeth LBC  2 AC 465, it was clear that domestic courts are bound by the House of Lords precedent. 
The Court also expressed doubts as to whether there had ‘been unjustifiable discriminatory behaviour. The mere fact of an anomaly arising from the introduction of LASPO would not of itself constitute unwarranted discrimination – see paragraph 33 of Clift (H of L).’ 
The Court commented that whether legislative change was effective from the date of the offence (CJA 2003), the date of sentence (CJIA 2008 amendments) or the date of conviction (LASPOA 2012), there would inevitably be different treatment. [32-33]
The conclusion in relation to Articles 5 and 14 was as follows:
Given Parliament’s legitimate desire to reform the legislation relating to dangerous offenders, we doubt in the circumstances whether asserted incongruities of the sort arising in this case properly fall within the ambit of Article 14 discrimination, but even accepting that they do, it is hard to see how, unless the appellant is successful on the Article 7 point, the State could fail to establish the necessary objective justification.
The same conclusion applies to the appellant’s further submission asserting a violation of Article 14 within the context of Article 7. [34-35]
The complaint was that there was a failure to comply with Article 7 of the ECHR and the international principle of “lex mitior”.
Lex mitior – the Rome Statute of the International Criminal Court defines it as: ‘In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.’ (Article 24(2))
Article 7(1) of the Convention reads as follows:
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed.”
The Court commented: Clearly, on its face there was in fact no breach, because the penalty of IPP was available at the time when the offences were committed. There is nothing in Article 7 which expresses the concept of “lex mitior”. 
Interestingly, Article 7 is in contrast with other international instruments:
International Convention on Civil and Political Rights (ICCPR) Article 15 states:
“(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If subsequent to the commission of an offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.” (emphasis added by the Court)
It was suggested that the modern law of the ECHR applies more widely than the express wording of Article 7, relying on the decision of the Strasbourg court in Scoppola v Italy (No.2)  51 EHRR 12, the facts of which are as follows.
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 the advantage of reducing the available sentence to 30 years. That provision came into force in December 1999. On 24 November 2000 he was found guilty and sentenced. The court noted his liability to a life sentence, but imposed a 30 year term, honouring the terms of the summary procedure. On the same day a new legislative decree took effect. It amended the provision relating to summary procedure which reduced life to 30 years. It provided that in the event of trial under the summary procedure life imprisonment could be imposed in place of life with daytime isolation. On an appeal hearing in January 2002, the applicant was sentenced to life imprisonment pursuant to the amending legislation. Further domestic appeals by the applicant against his life sentence were dismissed.
The applicant’s Article 6 and 7 challenges were upheld and the 30 year term reinstated. [41-42]
In so deciding, the European Court decided to depart from its earlier decision in X v Germany [Application No 7900/77] that Article 7 did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence. 
The basis for that decision was in essence that ‘a consensus had gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law.’ Additionally, Italian law had recognised the principle since 1930. [para 106 of the Scoppola judgment]
Further, the absence of recognising lex mitior in Article 7 was not decisive when viewed in light of the developments in attitude to the principle. [para 107 of the Scoppola judgment]
Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant’s detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represents – now consider excessive. [para 108 of the Scoppola judgment]
The Grand Chamber felt it appropriate to depart from the decision in X v Germany and reinstated the 30-year term. [para 109 of the Scoppola judgment]
Counsel for Docherty sought to claim the benefit of this ruling and urged that, in consequence, the IPP having been abolished by the date of sentence for convictions recorded on or after 3 December 2012 and the new style extended sentence only being available for convictions on or after that date, the lesser sentence of an old style extended sentence should have been imposed. 
The Court of Appeal considered the Scoppola decision and the possible arguments for not applying it 
a) The lesser sentence sought cannot be the one provided for by the new legislation (LASPO) since the new style extended sentence can only be imposed in post 3 December 2012 cases. What Mr Rule sought to obtain is the imposition of the old style extended sentence under the 2008 Act which was repealed by LASPO from 3 December 2012, as were the provisions relating to the sentence of IPP, and retaining both sentences as available to a court where a conviction had occurred before that date. Thus, while it is sought to consign the IPP to history in advance of the date provided for by Parliament, it is sought to retain the benefit of a closely-related provision which was repealed in the same way. To do so is not impossible, if Scoppola were applied, but there is an anomalous feel to it.
b) There is a tension between the phrases “it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction” (paragraph 108), and “differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered” (paragraph 109). The latter phrase is repeated at paragraph 119. The difference between conviction and sentence was irrelevant in Scoppola: it is central in this case. The applicant’s conviction was recorded prior to the commencement date for the relevant provisions LASPO, and prior to the making of the relevant commencement order.
c) The reference in paragraph 108 to “foreseeability of penalties” as an essential element of Article 7 is hard to follow in the present context. The available penalties for the appellant’s crimes were clear and certain at the date of his offence. Uncertainty is only a function of retrospectivity which is prohibited by Article 7. If anything the possibility of some later, more lenient legislation applying retrospectively introduces uncertainty instead of applying foreseeability of penalties.
d) The decision in Scoppola was by a majority of 11 votes to 6 with a strong dissenting judgment in relation to Article 7. The Article 6 violation was clear and was found unanimously. The case could have been decided on that basis alone. The Article 7 decision required the setting aside of longstanding authority.
e) In Scoppola, there had been in place since the 1930s a provision of the Italian Criminal Code which contained the lex mitior principle.
Did Scoppola have to be followed?
The Court said:
Noting that Scoppola is a decision of the Grand Chamber, we do not consider that it can be said that the judgment represents a misunderstanding or overlooking of a significant feature of English law or practice which would or could lead to a review by the European Court. Any argument that Scoppola does not represent a “clear and constant” line of authority will founder since the decision is one of the Grand Chamber. Thus the obligation is to follow the Scoppola interpretation, subject to its application to the particular facts of the case. 
In essence, yes it had to be followed unless the Court considered it did not apply to the facts of Docherty’s case.
Legislative changes and domestic law
The court commented:
As our domestic law currently stands, it is clear that the subsequent legislative changes in the criminal law are presumed not to have any retrospective effect (Section 16(1)(d) and (e) of the Interpretation Act 1978), and it is well established that legislation enacted after the conviction and sentence does not affect the correctness of anything done under the law as it stood and was properly applied at the time of trial: Bentley  1 Cr App R 21, at 24 by Lord Bingham CJ. Even a later interpretation of the common law that is favourable to a convicted person does not in itself confer a right to an extension of time for appealing to the Court of Appeal: see, for example, Hawkins  1 Cr App R 234. 
The LASPO regime
The effect of the LASPO changes (after 3 December 2012) was that the hierarchy of sentences available prior to LASPO had changed:
Formerly, Life, IPP and EPP were available. Post 3/12/12, the sentences available were now Life and EDS (the new extended sentence).
The gap left by the IPP repeal did not mean that defendants who formerly would have received IPP would automatically receive a life sentence, but it was accepted that the repeal would mean that more life sentences would be imposed. (See R v Burinskas and our blog in December 2012)
The question for the court was whether there was a real possibility of Docherty receiving a life sentence if he was sentenced after the LASPO changes were in force (3 December 2012 onwards). 
The Court said: a judge under the new sentencing regime could properly and reasonably consider a life sentence as a real possibility. 
The sentencing judge himself recognised this in his sentencing remarks. He did not consider that a life sentence was needed when an IPP was available to him. However he went on to comment that “the position may well change with the changes in the law”. 
Therefore (even if it were to be recognised in English law) lex mitior did not apply as there was a real possibility that Docherty would have received a life sentence (more severe than his EPP sentence) had he been sentenced under (what he considered the benefit of) the new LASPO regime.
The appeal was dismissed.