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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Docherty, R v [2014] EWCA Crim 1197 (18 June 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/1197.html Cite as: [2014] 2 Cr App R 76, [2014] EWCA Crim 1197

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Shrewsbury Crown Court
HHJ Onions
T20127081

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/06/2014

Lord Justice Treacy:

1. On 13 November 2012 in the Crown Court at Shrewsbury, before HHJ Onions, the appellant pleaded guilty to two charges of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 20 December 2012 he was sentenced by the learned judge to a term of imprisonment for public protection ("IPP") with a specified minimum custodial term of 5 years and 4 months. One of the charges under s.18 of the 1861 Act was an alternative to a charge of attempted murder, which was count 1 on the indictment. He now appeals against sentence by leave of the Single Judge.
2. The facts were as follows. The two victims, Jonathan Cook and Anthony Lord, had lived together with the appellant in a hostel for homeless people. On 12 July 2012 they had been out drinking together. The appellant became aggressive and challenged Lord to a fight. Lord declined and avoided confrontation. The appellant's mood improved and he later invited the two men home. They agreed. On the way alcohol was bought, and all three had a lot to drink. They visited the room of a fellow lodger, and the appellant again became aggressive. He challenged Lord to a fight and was asked to leave. The three men then went to the appellant's room, where he continued his aggressive behaviour.
3. He then slapped Cook across the face, and Lord and Cook then went to leave. The appellant followed Lord down the stairs, and when they got outside, the appellant went away briefly, and returned with a vegetable paring knife. Cook was present, speaking with Lord, when he felt a sharp pain to the back of his neck. He fell to the ground. There were further blows to his chest. As he tried to crawl away he received another three or four sharp stabs to his back. These were very painful and Cook feared for his life.
4. Lord tried to protect Cook, whereupon the appellant lunged at him; stabbing him in the face and head, and cutting Lord's arms as he tried to protect himself. Eventually Lord managed to grab the appellant's arms, but the appellant head butted him more than once. Eventually the appellant ran off. When the attack was over, the knife was still lodged in Cook's chest.
5. The appellant went to a nearby public house and told those present he had stabbed somebody eight times in the stomach and back for "shagging his girlfriend". The police arrived and arrested the appellant. Cook had been stabbed at least half a dozen times, both to his chest and his back. His kidneys were damaged and he was detained in hospital for four nights. Lord had a deep penetrating wound to the scalp which required nine stitches and a number of lesser injuries to his head, arms and hands. Both victims were significantly affected by the attacks on an ongoing basis.
6. The appellant is now 35 years of age and had 16 previous convictions for 28 offences between 1994 and 2012, including burglary and theft, criminal damage, affray, public order offences and road traffic matters. Of most significance for present purposes was a conviction in 1997 for causing grievous bodily harm with intent, contrary to section 18 and an offence contrary to section 20 of the same Act.
7. There was a pre-sentence report before the court in which it was reported that the appellant was continuing to assert that he had merely been defending himself in this incident. As was clear from the antecedents, there was a manifest pattern of alcohol fuelled offences over a period of 11 years. The police domestic violence unit also had reports of three call outs to three separate incidents involving the appellant, all relating to further drink-fuelled aggression on the appellant's part. It was reported that the appellant recognised his drinking was a problem, but his motivation for change was not straightforward and that he still struggled to understand the views of others about his behaviour.
8. Importantly for present purposes, the probation service concluded that the appellant posed a high risk of serious harm to the public, to his associates, his family and any partners, with the perceived risks ranging from attacks with his bare hands to the use of a knife as on the occasion of the instant offences. There was, it was stated, a very high risk of violent re-offending. The report did not equivocate: it found that the appellant fitted the criteria for dangerousness and concluded that the most appropriate sentence was IPP.
9. There was also before the court a psychiatric report of 26 October 2012, addressed it seems primarily to questions of fitness to plead. The report referred inevitably to the long history of alcohol dependence, but concluded that the appellant did not suffer from any mental illness. It was thought by the doctor that there might be some anti-social personality characteristics, but no firm diagnosis of personality disorder had been made. While the appellant suffered from a very significant problem with alcohol it could not be inferred that he could not form the requisite intent, contemplated by the charges, namely an intent to kill or to cause really serious harm to others.
10. There were also before the judge a letter from the appellant's sister in his support and a letter from the appellant himself expressing remorse. We have read and have considered both those letters.
11. In passing sentence, the judge noted the appellant's record, identifying the offences in 1997 (leading to a 5 years sentence of imprisonment) as being the most relevant. The record subsequently had been less serious, but there had continued to be a continuing thread of drink related offences. Later offences, referred to by the judge, in 2012, although less serious than these offences, illustrated that the drink problem was indeed still serious. The judge described the instant offences. The attack on Cook had been a determined one with a deadly weapon, inflicting at least 6 separate stab wounds to the back and chest. The victim had feared his life was in danger, as indeed it might have been but for the intervention of the second victim, Lord, who had acted (said the judge) with bravery and determination and had in turn received serious injuries.
12. In considering whether the appellant was a dangerous offender within the meaning of the CJA 2003, the judge said that the best predictors of violence and future risk of violence were the past convictions. The risk factor was present and he presented a significant risk of violence to others unless the appellant began to address the issues contributing to his violence. The judge referred to the conclusions in the PSR, which we have already summarised. Importantly, the judge said that the appellant needed fully to accept the extent of his alcohol dependence over a number of years and there was no time limit by which to assess as to when work on that would be completed. The risks, in the judge's opinion, could be reduced by intervention from alcohol treatment services, lifestyle changes and by his addressing the attitudes, values and beliefs underpinning past violence and aggression.
13. The judge said that counsel had argued for a lengthy determinate sentence, but the judge rejected that and stated expressly that he found that the appellant represented a significant risk of serious harm to others by the commission of further specified offences of violence and that he was accordingly dangerous within the meaning of the CJA 2003. The judge then concluded that the appellant should be sentenced to IPP on each count. The judge then went on to consider the appropriate minimum custodial term, in respect of which no ground of appeal is raised.
14. There are two grounds of appeal. First, it is argued that the judge failed to consider whether lesser restrictions, including the old style extended sentence of public protection ("EPP") under the 2003 Act, instead of IPP would have enabled proper protection of the public. Secondly, it is argued that "the abolition of IPP prior to the sentencing in this case obliged the court to impose an EPP rather than an IPP in order to comply with Article 7 (or Articles 5 and 14) of the European Convention on Human Rights ("ECHR") and the international norm and principle of "lex mitior".
15. For the Crown it is submitted that the judge was obliged to sentence on the basis of the law in force at the date of sentence and that, as the appellant could have been sentenced to imprisonment for life, even if convicted after 3 December 2012, the principle of lex mitior does not arise.
16. We need to say a little about the state of the law at the relevant time as it related to sentences upon dangerous offenders. This appellant was sentenced to a term of IPP on 20 December 2012. IPP was abolished by the Legal Aid Sentencing and Punishment of Offenders Act 2012 ("LASPO"), with effect from 3 December 2012, in respect of convictions after that date. The appellant was convicted on 13 November 2012 when he entered his plea. By reason of Article 6 of the relevant commencement order, (S.I. 2012 No 2906), a sentence of IPP was still open to the judge in this case since the conviction was recorded prior to the relevant date (3/12/12). See also Saunders [2014] 1 Cr App R (S) 45 at paragraphs 2 and 3.
17. From 3 December 2012, in respect of offenders convicted after that date, LASPO introduced a modified form of "extended sentence" for dangerous offenders. Such extended sentences (in various guises) have existed for a number of years. The new form of sentence has some different attributes from its predecessors, including sterner licence provisions, but, in its essentials, it provides for a sentence of imprisonment, consisting of a custodial term and an extended period of licence after release.
18. Thus, at the time of this sentence, both IPP and an extended sentence of the old type, under the old statutory regime, were available sentencing options. The new style extended sentence was not available. In addition, of course, there remained open the option of a discretionary life sentence as a maximum under the terms of the 1861 Act.
19. The first ground of appeal is that the learned judge should have considered and imposed an old style extended sentence instead of passing the indeterminate sentence that he did.
20. We were referred to the judgment of Lord Judge CJ in C & ors [2009] 1 WLR 2158 at paragraph 14 where an IPP is referred to as the "most draconian sentence" apart from life, and the court states that it should not be imposed if an overall sentence package of lesser measures provides appropriate protection to the public. Mr Rule's argument is that the sentence is disproportionate, given the other sentencing options open, (e.g. old style extended sentence and ASBO and drink banning order), and that lesser restrictions than an IPP would enable proper protection of the public.
21. It is true that the judge did not expressly give reasons in his judgment for not adopting the alternative of an extended sentence, with other precautionary measures. However, in our judgment, the reason for that is entirely clear. As we have said, the judge was unable to discern the time scale within which the danger posed by the appellant could be addressed, controlled and (hopefully) eliminated. The judge mentioned that factor expressly at p. 5 D – E of the sentencing remarks. The option of a discretionary life sentence had been considered, but was rejected given the availability of an IPP. The judge commented that under the LASPO regime the life sentence criteria might change, but that if life was not appropriate under that regime, a new-style extended sentence of some length would have been required. Finally, the judge referred in the course of his remarks to his Parole Board experience and to the need for the Parole Board to assess the risk posed by this appellant in the future. We have no doubt that he had the full range of options in mind, and that he gave the issues full consideration even if he did not spell them out explicitly.
22. In our judgment, there was no fault in the judge adopting the course that he did to meet the concerns about the danger posed by the appellant which stretched beyond any ascertainable time frame. The sentence of IPP was clearly suited to this case in a way that an old style extended sentence was not. As this court has mentioned, as recently as 4 March this year, in AG's Reference No.27 of 2013 (Burinskas) & other appeals [2014] EWCA 334 in a judgment of the Lord Chief Justice, the new sentencing regime under LASPO may mean that life sentences may have to be imposed where sentences of IPP had been passed under the old law: see paragraphs 19 and 23. In this sense, the judge's prediction was borne out.
23. Subject to the next grounds of appeal, we take the view that the sentence of IPP was neither excessive nor wrongly imposed in this case.
24. Although the grounds of appeal as summarised at paragraph 14 above were set out in the form of two grounds, it is convenient to divide the original second ground into two distinct grounds. We will therefore first of all deal with submissions based on Articles 5 and 14 of the ECHR.
25. Mr Rule's submission is that the appellant as a dangerous offender was in the circumstances being subjected to differential and discriminatory treatment not related to the risk which he poses to the public, but by reference to the date of his conviction. He submits that the matter falls within the general ambit of Article 5 so that if there has been discrimination towards the appellant on a ground encompassed by Article 14, that Article is breached in the absence of objective justification.
26. He submits that there is no objective justification for the treatment received by this appellant since it was dictated by the date upon which he had been convicted in circumstances where a lesser penalty would have been imposed had he been convicted after 3 December 2012, and thus prior to his date of sentencing on 20 December 2012.
27. It is common ground between the parties that the matter in issue falls within the general scope of Article 5, so that the requirement for Article 14 to derive from another Convention right is satisfied.
28. Turning to Article 14 itself; it is agreed that the only ground within Article 14 which could apply to this case would be "other status". The appellant argues that he falls within this ground by virtue of his status as a prisoner made subject to an IPP.
29. It seems to us that there is an obstacle in the appellant's path which is fatal to this ground. In R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 Lord Bingham, with whom the other members of the House agreed, held at paragraph 28 that classification as a prisoner was insufficient to amount to "other status" for the purposes of Article 14. That decision is binding on us, notwithstanding the judgment of the European Court of Human Rights in Clift v UK [Application 7205/07], and Mr Rule's attempt to differentiate a prisoner subject to an IPP from a prisoner, as Clift was, serving a determinate sentence of 15 years or more.
30. Although the later Strasbourg ruling came to the opposite conclusion to that reached in the House of Lords, it is clear from Kay & Others v Lambeth LBC [2006] 2 AC 465 that domestic courts are bound by the House of Lords precedent, subject to a limited partial exception, which does not apply here. See also R (Purdy) v DPP [2009] 1 Cr App R 32 at paragraphs 51 to 54.
31. It also seems to us to be doubtful that in the circumstances of this case there has been unjustifiable discriminatory behaviour. The mere fact of an anomaly arising from the introduction of LASPO would not of itself constitute unwarranted discrimination – see paragraph 33 of Clift (H of L).
32. Parliament has chosen a variety of methods to implement the legislation relating to dangerous offenders. The original provisions in the Criminal Justice Act 2003 applied to offences committed on or after 4 April 2005. The amendments effected by the Criminal Justice and Immigration Act 2008 took effect by reference to sentencing on or after a specified date. The further provisions under LASPO are governed by the date of conviction.
33. Each of those different methods of implementation of the legislative provisions is a legitimate way of providing certainty as to when the relevant version of the provisions is applicable. Whichever method is adopted there will inevitably be differences in treatment. Such distinctions are inherent in legislative change. On the appellant's own case, if he had been sentenced before 3 December 2012, (as he might well have been), he could have had no ground for complaint. But the actual date of sentence itself is a somewhat fortuitous factor.
34. Given Parliament's legitimate desire to reform the legislation relating to dangerous offenders, we doubt in the circumstances whether asserted incongruities of the sort arising in this case properly fall within the ambit of Article 14 discrimination, but even accepting that they do, it is hard to see how, unless the appellant is successful on the Article 7 point, the State could fail to establish the necessary objective justification.
35. The same conclusion applies to the appellant's further submission asserting a violation of Article 14 within the context of Article 7.
36. We therefore turn to the Article 7 ground.
37. In this it is submitted that there was a failure to comply with Article 7 of the ECHR and the international principle of "lex mitior". It is submitted that if the appellant had contested the charges the case might not have been concluded until after 3 December 2012 when the sentence of IPP was no longer available. It was therefore purely arbitrary and unfair that he was amenable to the sentence of IPP. Moreover, had he been sentenced on the same day alongside a person convicted after 3 December 2012 who was in otherwise identical circumstances, the two men would be sentenced differently: the latter would not be subject to an indeterminate sentence since the new-style extended sentence results in release by expiry of time.
38. Article 7(1) of the Convention reads as follows:

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed."

39. Clearly, on its face there was in fact no breach, because the penalty of IPP was available at the time when the offences were committed. There is nothing in Article 7 which expresses the concept of "lex mitior". In this respect, Article 7 is in contrast to a number of international instruments. See for example Article 15 of the International Convention on Civil and Political Rights (ICCPR) adopted by the General Assembly of the United Nations on 16 December 1996 (and entering into force on 23 March 1976):

"(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If subsequent to the commission of an offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby."(our italics)

40. However, it is submitted that the modern law of the Convention applies more widely than the express wording of Article 7. The basis for this contention is the decision of the Strasbourg court in Scoppola v Italy (No.2) [2010] 51 EHRR 12.
41. In that case, the applicant murdered his wife on 2 September 1999; the offence was punishable by life imprisonment. On 18 February 2000, he agreed to be tried under a summary procedure. It lacked some of the safeguards of a full trial but carried the advantage of reducing the available sentence to 30 years. That provision came into force in December 1999. On 24 November 2000 he was found guilty and sentenced. The court noted his liability to a life sentence, but imposed a 30 year term, honouring the terms of the summary procedure. On the same day a new legislative decree took effect. It amended the provision relating to summary procedure which reduced life to 30 years. It provided that in the event of trial under the summary procedure life imprisonment could be imposed in place of life with daytime isolation. On an appeal hearing in January 2002, the applicant was sentenced to life imprisonment pursuant to the amending legislation. Further domestic appeals by the applicant against his life sentence were dismissed.
42. The applicant's Article 6 and 7 challenges were upheld and the 30 year term reinstated.
43. In relation to the Article 7 challenge, the European Court decided to depart from its earlier decision in X v Germany [Application No 7900/77] that the Article did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence.
44. At paragraphs 106 to 109 of its judgment the Grand Chamber said:

"106. The Court therefore concludes that since the X v Germany decision a consensus has gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law. It is also significant that the legislation of the respondent State had recognised that principle since 1930 (see Article 2 and 3 of the Criminal Code, cited in paragraph 32 above).

107. Admittedly, Article 7 of the Convention does not expressly mention an obligation for Contracting States to grant an accused the benefit of a change in the law subsequent to the commission of the offence. It was precisely on that basis of that argument relating to the wording of the Convention that the Commission rejected the applicant's complaint in the case of X v Germany. However, taking into account the developments mentioned above, the Court cannot regard that argument as decisive. Moreover, it observes that in prohibiting the imposition of "a heavier penalty… than the one that was applicable at the time the criminal offence was committed", paragraph 1 in fine of Article 7 does not exclude granting the accused the benefit of a more lenient sentence, prescribed by legislation subsequent to the offence.

108. In the Court's opinion, it is consistent with the principle of the rule of law, of which Article 7 forms an essential part, to expect a trial court to apply to each punishable act the penalty which the legislator considers appropriate. Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant's detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represents – now consider excessive. The Court notes that the obligation to apply, from among several criminal laws, the one whose provisions are the most favourable to the accused is a clarification of the rules on the succession of criminal laws, which is in accord with another essential element of Article 7, namely the foreseeability of penalties.

109. In the light of the foregoing considerations, the Court takes the view that it is necessary to depart from the case-law established by the Commission in the case of X v Germany and affirm that Article 7(1) of the Convention guarantees not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law. That principle is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant."

45. Mr Rule thus sought to claim the benefit of this ruling for the appellant and urged that, in consequence, the IPP having been abolished by the date of sentence for convictions recorded on or after 3 December 2012 and the new style extended sentence only being available for convictions on or after that date, the lesser sentence of an old style extended sentence should have been imposed.
46. It seems to us that there are a number of possible arguments against applying this decision in the present case:

a) The lesser sentence sought cannot be the one provided for by the new legislation (LASPO) since the new style extended sentence can only be imposed in post 3 December 2012 cases. What Mr Rule sought to obtain is the imposition of the old style extended sentence under the 2008 Act which was repealed by LASPO from 3 December 2012, as were the provisions relating to the sentence of IPP, and retaining both sentences as available to a court where a conviction had occurred before that date. Thus, while it is sought to consign the IPP to history in advance of the date provided for by Parliament, it is sought to retain the benefit of a closely-related provision which was repealed in the same way. To do so is not impossible, if Scoppola were applied, but there is an anomalous feel to it.

b) There is a tension between the phrases "it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction" (paragraph 108), and "differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered" (paragraph 109). The latter phrase is repeated at paragraph 119. The difference between conviction and sentence was irrelevant in Scoppola: it is central in this case. The applicant's conviction was recorded prior to the commencement date for the relevant provisions LASPO, and prior to the making of the relevant commencement order.

c) The reference in paragraph 108 to "foreseeability of penalties" as an essential element of Article 7 is hard to follow in the present context. The available penalties for the appellant's crimes were clear and certain at the date of his offence. Uncertainty is only a function of retrospectivity which is prohibited by Article 7. If anything the possibility of some later, more lenient legislation applying retrospectively introduces uncertainty instead of applying foreseeability of penalties.

d) The decision in Scoppola was by a majority of 11 votes to 6 with a strong dissenting judgment in relation to Article 7. The Article 6 violation was clear and was found unanimously. The case could have been decided on that basis alone. The Article 7 decision required the setting aside of longstanding authority.

e) In Scoppola, there had been in place since the 1930s a provision of the Italian Criminal Code which contained the lex mitior principle.

47. We also note that there is some uncertainty as to how the principle of lex mitior is intended to apply to subsequent changes in substantive law and also to appeals against sentence (or even conviction). Some of the language of the Grand Chamber in Scoppola supports a wider application of the principle, and the wording of Article 15 of ICCPR, to which the court attached importance, might suggest that even a court on appeal should apply a more lenient sentence enacted subsequently to the commission of the offence.
48. As our domestic law currently stands, it is clear that the subsequent legislative changes in the criminal law are presumed not to have any retrospective effect (Section 16(1)(d) and (e) of the Interpretation Act 1978), and it is well established that legislation enacted after the conviction and sentence does not affect the correctness of anything done under the law as it stood and was properly applied at the time of trial: Bentley [2001] 1 Cr App R 21, at 24 by Lord Bingham CJ. Even a later interpretation of the common law that is favourable to a convicted person does not in itself confer a right to an extension of time for appealing to the Court of Appeal: see, for example, Hawkins [1997] 1 Cr App R 234.
49. This court's obligation pursuant to Section 2(1) of the Human Rights Act 1998 is "to take into account" the judgment of the European Court of Human Rights. In the absence of special circumstances, the domestic court should follow any "clear and constant jurisprudence" of that court – see R (Alconbury Developments Ltd) v Secretary of State for the Environment [2003] 2 AC 295 at paragraph 26. The phrase "clear and consistent" has been used elsewhere.
50. There has recently been a full review of the authorities by Maurice Kay LJ in R (Hicks) v Commissioner of Police of the Metropolis [2014] EWCA Civ 3 at paragraphs 69 to 80. It is convenient to cite the court's conclusions at paragraph 80 which we gratefully adopt:

"80. What conclusions can be drawn from this domestic case law on how English courts should deal with Strasbourg decisions on the interpretation of the ambit of a provision of the Convention itself, as opposed to an ECtHR decision on how a provision in the Convention is to apply to particular factual circumstances? We think that the following principles are clear:

(1) It is the duty of the national courts to enforce domestically enacted Convention rights.

(2) The ECtHR is the court that, ultimately, must interpret the meaning of the Convention.

(3) The UK courts will be bound to follow an interpretation of a provision of the Convention if given by the Grand Chamber as authoritative, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which, properly explained, would lead to that interpretation being reviewed by the ECtHR when its interpretation was being applied to English circumstances.

(4) The same principle and qualification applies to a "clear and constant" line of decisions of the ECtHR other than one of the Grand Chamber.

(5) Convention rights have to be given effect in the light of the domestic law which implements in detail the "high level" rights set out in the ECtHR.

(6) Where there are "mixed messages" in the existing Strasbourg case law, a "real judicial choice" will have to be made about the scope and application of the relevant provision of the Convention."

51. Noting that Scoppola is a decision of the Grand Chamber, we do not consider that it can be said that the judgment represents a misunderstanding or overlooking of a significant feature of English law or practice which would or could lead to a review by the European Court. Any argument that Scoppola does not represent a "clear and constant" line of authority will founder since the decision is one of the Grand Chamber. Thus the obligation is to follow the Scoppola interpretation, subject to its application to the particular facts of the case. We do not consider that the matters set out in paragraphs 46 to 48 displace this conclusion.
52. We have considered R v Saunders (supra), where at paragraphs 2 and 3 the court clearly stated that for offenders convicted before 3 December 2012, but sentenced after that date, the sentencing regime in force at the date of conviction applies. The court was concerned with the approach to non-mandatory life sentences arising from the changes to the sentencing of dangerous offenders brought about by LASPO. It does not appear that the Article 7 "lex mitior" argument was advanced for consideration, or indeed that it would have been germane to the cases under consideration.
53. The next step is to consider whether there truly is a "lex mitior" to be applied in this case.
54. It is important to recognise that the maximum sentence of life imprisonment for Section 18 offences was unaffected by LASPO. In R (Uttley) v SSHD [2005] 1 Cr App R 15, the House of Lords held that in the context of Article 7(1) the penalty that was "applicable" was the penalty that the legislature had prescribed for a criminal offence at the time it was committed. Thus IPP and the old style extended sentence were lesser penalties available within the range of available sentences.
55. Attorney General's Reference No 27 of 2013 (Burinskas) makes clear that the dangerousness provisions post-LASPO are not to be interpreted as if the sentence of IPP continues to exist. The result is that as a result of the changes introduced by LASPO, life sentences will now be imposed more frequently than before. The IPP sentence approximated closely to a life sentence which was previously reserved for cases of the utmost gravity or culpability requiring a denunciatory element. Its abolition would, but for the wider use of life sentences, leave a gap in the court's powers in relation to dangerous offenders since the new style extended sentence does not permit indefinite detention but mandates release at the end of the custodial term. Paragraph 23 of Burinskas clearly identifies this wider use of life sentences as the intention of Parliament, and thus implicitly recognises the gap that would otherwise have been left in the effective protection of the public. Contrary to the submissions of Mr Rule, Section 225(2)(b) dealing with the criteria for a life sentence has to be read in the new context as Burinskas makes clear at paragraph 22 where the relevant considerations are set out. See also Saunders at paragraph 18.
56. It will not necessarily follow that every case which would previously have attracted an IPP sentence will require a life sentence. Public protection may be adequately reflected in a new style extended sentence. So, the issue before this court should not simply be determined by reference to the fact that a life sentence remains the maximum sentence available. We consider that a more nuanced approach is necessary.
57. It seems to us that the correct test would be whether there was a real possibility of the imposition of a life sentence applying the considerations set out at paragraph 22 of Burinskas. If the answer to that question is in the affirmative, then the "lex mitior" principle does not apply.
58. Turning to the facts of this case; it is clear that these were offences of considerable gravity involving the use of a knife. The attack on Cook was particularly sustained and serious, with long term consequences for him. The offender's record for violence, including a previous Section 18 conviction, aggravates the position. Given his propensity to offend when in drink, and that he will for an unforeseeable period continue to represent a very high risk of violent offending resulting in serious or life threatening harm, it seems to us that a judge under the new sentencing regime could properly and reasonably consider a life sentence as a real possibility.
59. The sentencing judge himself recognised this in his sentencing remarks. He did not consider that a life sentence was needed when an IPP was available to him. However he went on to comment that "the position may well change with the changes in the law". As we have already noted, that prediction was correct, but the comment also illustrates that, had the LASPO sentencing framework applied, the judge would have undoubtedly given serious consideration to a life sentence in this case. We think he would have been right to do so.
60. For these reasons, we do not consider that, even if the principle of "lex mitior" were to be recognised in our courts, it could apply in this case.
61. Accordingly, the appeal against sentence is dismissed.