FG

Mr FG was convicted in May 2008 of distribution of indecent photographs of a child, making indecent photographs of a child, and possession of indecent photographs of a child. Mr FG received a sentence of imprisonment for public protection with a tariff of 12 months.

The CCRC received an application for review of Mr FG’s sentence in December 2013.

Mr FG’s sentence was passed after the commencement of the Criminal Justice and Immigration Act 2008 (CJIA) which made amendments for sentences passed after 14 July 2008.

It became unlawful to impose an IPP sentence upon an offender unless they had previous convictions listed in a newly inserted Schedule (which Mr FG did not), or the offending warranted a punishment of at least a four year notional determinate sentence.

Had Mr FG been sentenced after 14 July 2008, he could not lawfully have been given a sentence of IPP.

The CCRC considered whether the implementation of legislative changes for persons sentenced after 14 July 2008 irrespective of the offence date was arbitrary and/or unlawful as the CJIA had already been enacted, and the relevant transitional provisions had been published on 17 June 2008.

Further, the CCRC considered whether the setting of a later date for sentences to be affected by the changes represented an arbitrary or unfair differential of treatment in conjunction with the European Convention on Human Rights and/or the international principle of “lex mitior” – that the retroactive application of the more lenient criminal law should apply to Mr FG’s sentence.

The CCRC concluded that there was a real possibility the Court of Appeal would find that it was unfair for Mr FG to be given an indeterminate sentence and deprived of the more lenient sentence with an automatic release due to the circumstance of the date of his sentencing.

In addition, Mr FG had pleaded guilty. If he had contested the case he would not have been convicted or sentenced until after the statutory changes came into effect and, therefore, it was arguably arbitrary that he was subject to an IPP sentence.

The CCRC referred the sentence in November 2015.

The Court of Appeal upheld the sentence in July 2017.