On 24 February 2015 the Supreme Court panel (Lords Mance, Carnwath and Hughes JSC) granted permission to appeal in R v Docherty (UKSC 2014/0207).

Philip Rule presented the appeal to the Court of Appeal that successfully established the application of Article 7 of the European Convention on Human Rights and the principle of lex mitior in English law, but the appeal was dismissed on the Court of Appeal’s approach to the application of the principle to the facts of the Appellant’s case. The Court of Appeal (Criminal Division) certified the point of law of general public importance:

“Is it consistent with Article 7 of the ECHR and the Human Rights Act 1998 for a court after 3 December 2012, when the sentence of imprisonment for public protection (‘IPP’) was repealed, pursuant to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and Article 6 of the relevant commencement order, in respect of any conviction after that date, to impose on an offender, who was convicted before 3 December 2012, a sentence of IPP, where there was a real possibility that the court would otherwise have imposed a sentence of life imprisonment?”

Philip also drafted the written application for permission to appeal and responded to the Respondent’s written objection.

The appeal raises five grounds of appeal against the Court of Appeal’s dismissal of the claim, raising issues concerning the application of:

(1) Article 7 ECHR applying the customary international norm and principle of “lex mitior”.

(2) relevant “other status” qualifying for the protection by Article 14 ECHR from discriminatory treatment on grounds lacking objective justification within the ambit of the right to liberty and Art. 5 ECHR, or Art. 7 ECHR. 

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