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The Supreme Court handed down its judgment in R v Docherty  UKSC 62 on 14 December 2016.
No5 Chambers’ 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. However, 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Rights Act 1998 for a court after 3 December 2012, when the sentence of imprisonment for public protection (‘IPP’) was repealed… in respect of any conviction after that date, to impose on an offender, who was convicted before 3 December 2012, a sentence of IPP, where there was a real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?”
Rule also drafted the written application for permission to appeal.
The respondent instructed Queen’s Counsel to draft the notice of objection for the Crown in reply to Rule’s application but permission was indeed granted to Rule in February 2015 (UKSC 2014/0207).
At the final hearing Rule was led by Queen’s Counsel, but permitted to present one part of the oral submissions himself. The Supreme Court judgment decides that English practice does acknowledge the rule of lex mitior within Article 7 ECHR. However lex mitior did not assist this appellant because the new regime was not in force for him at the date he was sentenced, and the commencement order was not unlawful. The more lenient law is therefore treated as not being in force at the date of his sentence.
The Court identifies some difficulties in establishing the exact meaning which the European Court of Human Rights gave to lex mitior in Scoppola v Italy (No 2) (2010) 51 EHRR 12, but it was not necessary to resolve them for this appeal. The Strasbourg Court may yet have to explain whether it is necessary to examine all intervening rules or practices between the offence and the sentencing process, and to sentence according to whichever is the most favourable.
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