The Law Changed But The Sentence Stayed The Same

By Saxon Norgard, Associate Editor 18 Dec 2016

On 13 November 2012, Shaun Docherty was convicted of wounding with intent. On 20 December 2012, he was sentenced to ‘imprisonment for public protection’ (IPP), even though the Government had, from 3 December 2012, abolished IPP sentences for some people…

Jargon buster – ‘convicted’, ‘sentenced’ and ‘IPP’


If someone is ‘convicted‘ of a crime, it means they have pleaded or been found guilty of that crime. A ‘sentence‘ is the punishment someone gets after they have been convicted.

Sentences of Imprisonment for Public Protection (IPP) were designed to ensure that dangerous violent and sexual offenders (whose crimes did not warrant a life sentence) could be kept in prison for as long as they presented a risk to society. A sentencing judge would impose a ‘tariff’ – a minimum time the person had to serve before they could be considered by the Parole Board for release.

IPP sentences came under heavy criticism. Less serious offenders were given very short tariffs but kept in prison long after their tariffs expired. The prison system could not give IPP prisoners access to rehabilitative resources so that they could demonstrate they were no longer a risk to society. IPP sentences also contributed to prison overcrowding.

In 2012, the Coalition Government decided to abolish IPP sentences. This was accomplished through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The dates are important here – for offenders convicted of a crime on or after 3 December 2012, courts were no longer able to impose IPP sentences. But importantly, prisoners already convicted could still be sentenced to IPP. There would be a ‘phased introduction’ of a new preventive detention scheme. But Mr. Docherty, having been convicted before 3 December 2012 (in November 2012), could still be sentenced to IPP, and was so sentenced on 20 December 2012.

Mr. Docherty went to the UK Supreme Court, arguing that his IPP sentence infringed his rights under Article 7 of the European Convention on Human Rights.

How does this affect human rights?


Article 7 of the European Convention on Human Rights (ECHR) covers a few things – for example, that no one should be found guilty of something that was not a crime at the time they did it, even if it later becomes a crime (no retrospective criminalisation), and, if someone does commit a crime, they should not be given a heavier penalty than the one which was applicable at the time they committed the crime (no retrospective harsher punishment).

The European Court of Human Rights has said (in a case called Scoppola v Italy (Number 2)) that Article 7 ECHR “guarantees not only the… non-retrospectiveness of more stringent criminal laws but also retrospectiveness of more lenient criminal law”. This means that, where a more lenient sentencing law is later enacted, a court should apply the more lenient law even if it did not exist at the time the person committed the offence.

A general principle of general international law, known as ‘lex mitior’, is also relevant here. It says that when there is a change of law before the final judgment in a criminal case, the law most favourable to the person being prosecuted, convicted or sentenced shall apply (Article 24(2) of the Rome Statute of the International Criminal Court).

Mr. Docherty argued that his IPP sentence was incompatible with Article 7 ECHR (particularly the principle of retrospectiveness of more lenient criminal law, as interpreted by the European Court of Human Rights) and the international law principle of ‘lex mitior’, since there was a new, more lenient sentencing scheme available under LASPO.

The Supreme Court’s Decision


The Supreme Court did not accept Mr. Docherty’s argument. It said that the phased introduction of the new sentencing scheme was legitimate, and that Mr. Docherty’s claim was an attempt to ‘anticipate’ the change.

It was incorrect to say that the law – in Mr. Docherty’s case – had ‘changed’; the law had only changed (become more lenient) for those convicted after 3 December 2012, but not for those convicted before. The law prevailing at the time Mr. Docherty was sentenced said that IPP could be imposed against those convicted before 3 December 2012, meaning that ‘lex mitior’ had not been infringed.

The Supreme Court also looked at the European Court of Human Rights’ decision in Scoppola. The European Court had said that the principle of retrospectiveness of the more lenient criminal law was embodied within ‘lex mitior’ – the rule that, where there were differences between the criminal law at the time of the offence and subsequent criminal laws enacted before a final judgment was given, the court had to apply the law most favourable to the person accused or convicted.

The Supreme Court said that this ‘extended rule’ appeared not to be within the rationale for ‘lex mitior’ and would have ‘unwarranted consequences’. The Supreme Court concluded that the European Court’s extended concept of the principle ‘should, with great respect, not be applied’.

Read the Supreme Court’s decision here.

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About The Author

Saxon Norgard Associate Editor

Saxon is one of RightsInfo's volunteer Site Editors and a future trainee solicitor in London. Originally hailing from Australia, his interests lie in family law, international affairs and human rights.

Saxon is one of RightsInfo's volunteer Site Editors and a future trainee solicitor in London. Originally hailing from Australia, his interests lie in family law, international affairs and human rights.