Judgments - Regina v. Secretary of State for the Home Department (Respondent) ex parte Dudson (FC) (Appellant) and one other action

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    29.  In Göç v Turkey, Application no 36590/97, decision of the Grand Chamber, judgment of 11 July 2002 (unreported), the applicant alleged that he had been falsely imprisoned and tortured and otherwise ill-treated by the police while he was in custody for which he had sought compensation. He complained that the court of first instance had denied him an oral hearing at which he could present his own direct evidence of the distress and anxiety which he had experienced. The Grand Chamber held by a majority of 9 to 8 that the refusal of an oral hearing had violated article 6(1). In para 47 of its decision the majority observed that, according to the court's established case law, in proceedings before a court of first and only instance the right to a "public hearing" in the sense of article 6(1) entailed an entitlement to an oral hearing unless there were exceptional circumstances that justified dispensing with such a hearing. The question was how this test was to be applied, given that the proceedings that were under challenge were before a court of first instance. In para 51 the majority said that the essentially personal nature of the applicant's experience, and the determination of the level of compensation required that he be heard and that these factors outweighed the considerations of speed and efficiency on which, according to the government, the relevant law on which an oral hearing had been denied to him was based.

    30.  This case, in which the Grand Chamber was so narrowly divided, is of particular interest in view of the reasons which were given for the dissent by the minority. At p 20 they observed that the court's case law had never required oral proceedings in all circumstances. Having referred to various authorities, they said:

    "That case-law lays down three criteria for determining whether there are 'exceptional circumstances' which justify dispensing with a public hearing: there must be no factual or legal issue which requires a hearing; the questions which the court is required to answer must be limited in scope and no public interest must be at stake."

At p 21 they added this comment:

    "Requiring domestic courts to hold a hearing every time a claim raising no particular problems is submitted to them might practically frustrate the objective of complying with the 'reasonable time' requirement in article 6(1) of the Convention."

    31.  In Hoppe v Germany (2002) 38 EHRR 285 the applicant complained that he had been denied a fair hearing in appeal proceedings concerning his right of access to his daughter contrary to article 6(1). Rejecting this complaint, the court said at p 299, paras 62-63:

    "62.  The court recalls further that article 6(1) requires in principle that a hearing be held. The question therefore arises whether a departure from this principle could, in the circumstances of the case, be justified at the appeal stage.

    63.  The manner in which article 6 of the Convention applies to proceedings before courts of appeal depends on the special features of the domestic proceedings viewed as a whole. Even where the court of appeal has jurisdiction both over the facts and in law, article 6 does not always require a right to a public hearing, irrespective of the nature of the issues to be decided. The publicity requirement is certainly one of the means whereby confidence in the courts is maintained. However, there are other considerations, including the right to a trial within a reasonable time and the related need for an expeditious handling of the courts' case load, which must be taken into account in determining the necessity of public hearings in the proceedings subsequent to the trial at first instance level. Provided a public hearing has been held at first instance, the absence of a hearing before a second or third instance may accordingly be justified by the special features of the proceedings at issue."

    32.  In Bulut v Austria (1996) 24 EHRR 84 it was held that there had been no violation of article 6(1) where there had been no oral hearing of the applicant's appeal by the Supreme Court which it rejected summarily on the ground that the appeal was manifestly without merit. The European Court was not satisfied that the appeal had raised questions of fact bearing on the assessment of the applicant's guilt or innocence that would have necessitated a hearing. That case is to be contrasted with Botten v Norway (1996) 32 EHRR 37, where the court held that article 6 had been violated. The Supreme Court had had to make its own assessment of facts relating to the applicant's personality and character on which it did not have the benefit of an assessment by the lower court and which could not properly have been examined without hearing him in person. In both cases the court made it clear that the application of article 6(1) depended upon the special features of the proceedings.

    33.  In Arnarsson v Iceland (2003) 39 EHRR 426 too it was held that article 6 had been violated. The applicant had been acquitted of the criminal charge against him at first instance. This decision was reversed on appeal by the Supreme Court after an oral hearing at which it heard submissions from the prosecution and from the applicant's lawyer. But the issues which it had to determine were predominantly factual in nature and they were complex. In para 30 the court reiterated the point made in its earlier jurisprudence that the manner of the application of article 6(1) to proceedings before courts of appeal depends on the special features of the proceedings involved, and that account must be taken of the entirety of those proceedings in the domestic legal order and of the role of the appellate court therein. In para 36 it said it did not consider that, having regard to what was at stake for the applicant, the issues to be determined by the Supreme Court could as a matter of fair trial have been examined properly without a direct assessment of the evidence given by the applicant in person.

    34.  None of these cases is directly comparable with the process of review that was being undertaken by the Lord Chief Justice in this case at the request of the Home Secretary. But it is possible to extract from them the following principles. What is at issue is the general right to a "fair and public hearing" in article 6(1). There is no absolute right to a public hearing at every stage in the proceedings at which the applicant or his representatives are heard orally. The application of the article to proceedings other than at first instance depends on the special features of the proceedings in question. Account must be taken of the entirety of the proceedings of which they form part, including those at first instance. Account must also be taken of the role of the person or person conducting the proceedings that are in question, the nature of the system within which they are being conducted and the scope of the powers that are being exercised. The overriding question, which is essentially a practical one as it depends on the facts of each case, is whether the issues that had to be dealt with at the stage could properly, as a matter of fair trial, be determined without hearing the applicant orally.

Application of these principles to this case

    35.  Mr Owen laid much stress on the fact that the setting of the appellant's tariff was part of the sentencing process and that there had been no oral hearing as to this matter under the defective procedure under which it was originally set by the Home Secretary. He also pointed out that what Lord Woolf CJ was being required to do was to take account of later developments in the light of the principles which had been described in R v Secretary of State for the Home Department, Ex p Venables and Thompson [1998] AC 407. This was not something which Potts J was required to do. It was a fresh exercise which involved the scrutiny by the Lord Chief Justice of new material which had not previously been taken into account by the judiciary. The Strasbourg case law to the effect that the application of article 6(1) depended upon the special features of the proceedings assumed that there had been a satisfactory examination of the case at first instance. That was not what had occurred here.

    36.  On the other hand, looking to the stage that had been reached in the sentencing process by the time of the review by Lord Woolf CJ, it is clear that most of the issues which were relevant had already been determined at the trial. No challenge was being made to the assessment by Potts J of the part which the appellant had played in the murder. His determination of the length of the detention that was necessary to meet the requirements of retribution and general deterrence in the appellant's case, and Lord Taylor of Gosforth CJ's agreement with his recommendation in what he described as an exceptionally grave case, could not be ignored by Lord Woolf CJ. These views had been formed in the light of the evidence which had been led in public at the trial. The issues which Lord Woolf CJ was being required to determine now were not, of course, confined to a fresh assessment of the extent of the appellant's criminality. He had to review the appellant's behaviour after conviction, the reports of those who had been responsible for his case at HMP Wandsworth and the representations that had been received from the victim's family. He also had to review the representations that had been received from the appellant's solicitors. But it is important to note that he was not being required to make findings of fact based on this material. What he was being required to do was to make an assessment of the extent to which an adjustment of the tariff was needed in the light of these further factors.

    37.  It is not obvious, given the comparatively limited nature of this exercise, that an oral hearing was needed to equip the Lord Chief Justice with the information that he needed for the proper conduct of this exercise. I would attach particular importance to the fact that it was not suggested by the appellant's solicitors that an oral hearing was required so that the appellant could appear in person before the Lord Chief Justice and give evidence. The request for an oral hearing was made solely on the ground that this procedure was a normal part of the sentencing exercise. Mr Owen did not dispute that its sole purpose was to enable the appellant's solicitors to make oral representations on his behalf. But they had been given an ample opportunity to submit these representations in writing, so it is unlikely that any information that they would have been able to provide at an oral hearing would have added anything. This is not a situation where procedural fairness required there to be an oral hearing before a final decision was made: contrast R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, 362-363, para 35, per Lord Bingham of Cornhill; p 370, paras 64-68, per Lord Hope of Craighead. All the signs are that an oral hearing in this case would have been a formality.

    38.  Account must also be taken of the nature of the procedure that the Secretary of State had devised for dealing with those persons who had already been sentenced as juveniles. As he told Parliament on 13 March 2000, there were already about 250 such detainees, with the possibility of more cases going through the courts before the necessary changes in the law could be introduced. He had decided that the review in these cases should be conducted by the Lord Chief Justice. He could have decided that they should be dealt with instead by a High Court judge, at least in the first instance. But there were very good reasons for preferring that this exercise should be conducted by the Lord Chief Justice himself, in view of the central role which he plays in the maintenance of fairness and consistency when the minimum periods that life prisoners must serve in custody are being fixed.

    39.  The essential task for the Lord Chief Justice was to determine, in the light of his experience, where on the scale each one of these detainees should be placed in the light of the particular facts of each case. The magnitude of the task that he was being asked to perform must not be underestimated. This was, as Lord Phillips of Worth Matravers MR observed in the Court of Appeal [2004] QB 1341, 1372, para 92, a very substantial burden, to be performed in addition to his existing heavy judicial duties as Lord Chief Justice. He had to have regard to the public interest as well as the interests of each detainee, and he had to have regard to the requirement that this exercise had to be carried out within a reasonable time as article 6(1) of the Convention requires. There is no doubt that if he had undertaken to conduct each one of these proceedings orally it would greatly have enlarged his task, and inevitably it would have caused much delay. Moreover it has not been shown that any good purpose would have been served by adopting this procedure generally, as all relevant material was being disclosed and a sufficient opportunity was being given for representations to be made in writing. It was, of course, open to him to ask for an oral hearing in a particular case if, in the light of his experience, he thought that this was necessary. The requirement that the matter should be dealt with in public was served by the issuing of the practice statement which explained the procedure that was to be adopted, and by the fact that the decisions on the tariff in each case were delivered by the Lord Chief Justice himself in open court.


    40.  Taking all these special features of the proceedings into account, I would hold that the absence of an oral hearing in this case did not violate article 6(1) of the Convention. There is no need in these circumstances to answer the questions whether, if there was a right to an oral hearing, it had been waived or to consider what relief the appellant should have been given if he had the right and it was not waived. I would dismiss the appeal.


My Lords,


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