On 17 February 2015 the Court of Appeal (Criminal Division) allowed the appeal against an IPP imposed in 2006 in the case of R v James-Davis. The offence had been committed in a period from late 2004 to early 2005 but prior to the implementation of the Criminal Justice Act 2003 on 4 April 2005. Consequently an indeterminate sentence of imprisonment for public protection (“IPP”) was not available as a matter of law.

This fact was not noticed by the representatives at the time, sentencing judge, any staff involved in the offender’s case in prison since, nor by the Parole Board on several occasions. It was not until the case was raised with Mr Rule on a different point that he identified the error and after seeking an indictment to confirm the dates (that were stated only on the front page of the pre-sentence report in the parole dossier) proceedings commenced.

The Court of Appeal, in its judgment delivered by the Lord Chief Justice, accepted it is not an option for the Court of Appeal to replace an unlawful IPP by a life sentence, due to the operation of section 11(3) Criminal Appeal Act 1968 that prevents the Court substituting any sentence that would result in dealing with the offender more severely on appeal.

The Court had been considering whether to increase the sentence so as to impose a longer-than-commensurate term of imprisonment pursuant to section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000, but was persuaded not to do so. The judgment does not fully address whether the Court was persuaded by the legal arguments presented that such course is equally prohibited as constituting a more severe sentence given that would extend the minimum period of required detention for the offender; or whether it was persuaded by Mr Rule on the facts of the case.

The Court quashed the unlawful IPP, and in its place imposed the sentence of the length of the notional determinate sentence identified at the sentencing hearing in 2006 (twelve years) with an extended 10-year period of licence and sexual offences prevention order as additional public protection measures.

The Appellant who has served more than the term required by the sentence will be immediately released on conditions of licence.

The Court also determined that an application for habeas corpus is not an available remedy even in the post-tariff period where the detention is authorised by an unlawful IPP sentence.

Please click here to view Philip Rule‘s profile.