Following a hearing on 3rd and 4th May 2016 the Supreme Court (Lord Neuberger, Lord Mance, Lord Reed, Lord Carnwath and Lord Hughes) has reserved its judgment in an appeal that concerns the IPP sentence (an indefinite imprisonment for public protection). This case concerns the imposition of an abolished sentence upon an offender by virtue of the fact that his conviction, but not sentence, occurred prior to the date of abolition. A transitional saving provision within the statutory instrument selected by the Secretary of State appeared to preserve the IPP sentence for those earlier convicts still yet to be sentenced even after its abolition was in force.

The internationally recognised rule of law of “lex mitior” requires that where there are differences between the penalty in force at the time of the commission of the offence, and that subsequently enacted before the final judgment is rendered, requires the application of the law whose provisions are more favourable to the defendant.

This case for the first time seeks to determine whether the common law applied in the UK recognises the principle, and international norm and rule of law, of “lex mitior”. The appellant invites the Court to hold that it does and so requires that the more lenient punishment in force before sentencing ought to be imposed. The question as to whether the UK courts shall accept the Strasbourg Court’s Grand Chamber ruling that this rule applies within the body of Article 7 of the European Convention on Human Rights 1950 falls to be determined also: the UK government having argued before the Supreme Court that it should not do so.

The appeal also raises Article 14 ECHR. The Court is considering the question as to whether the appellant possessed an “other status” qualifying for protection from the imposition of the abolished punishment when an identical offender would not do so, solely as a consequence of the chance date of conviction (plea or verdict). The appellant submits that there is no objective justification for the imposition by the sentencing court of an abolished sentence upon him – based not on any legitimate public interest but instead upon no more than a chance conviction date. Equality of treatment and proportionality of punishments in keeping with the legislature and therefore society’s present view of the correct meaure required by way of sentence should be reflected by equal treatment of those to be sentenced on the same date for the same offending and who pose identical issues for future management.

The recording of the proceedings before the Court, in R v Docherty (UKSC case 2014/0207) is available online here:

No5 Chambers’ international human rights barrister Philip Rule addressed the Court during the afternoon session.

Please CLICK HERE to view the initial article on the giving of permission for this case.