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|Session 2005 - 06|
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R (on the application of Hammond) (FC) (Respondent) v. Secretary of State for the Home Department (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)
LORD BINGHAM OF CORNHILL
1. Under the procedure which obtained until 25 November 2002, it was for the Secretary of State for the Home Department, having received the written recommendation of the trial judge and the Lord Chief Justice, to determine the length of the punitive term of imprisonment to be served by an adult convicted of murder in England and Wales. In R (Anderson) v Secretary of State for the Home Department  UKHL 46,  1 AC 837 this procedure was held to be incompatible with article 6 of the European Convention on Human Rights, because determination of the length of a punitive term is in substance the imposition of sentence, the imposition of sentence forms part of a criminal trial, article 6 requires a criminal trial to be by an independent and impartial tribunal, and the Secretary of State is not an independent and impartial tribunal. This incompatibility was prospectively cured, with effect from 18 December 2003, by section 269 of the Criminal Justice Act 2003, which provides that the trial judge shall (subject to appeal in the ordinary way) determine the minimum term to be served by an adult murderer in much the same way as he passes sentence on every other convicted defendant. But there remained a transitional problem relating to (1) existing prisoners whose punitive terms had already been notified to them by the Secretary of State by 18 December 2003, (2) existing prisoners sentenced to mandatory life imprisonment before that date whose punitive terms had not yet been notified to them, and (3) those sentenced after that date for murders committed before that date. The respondent falls into the second of these classes, and challenges the compatibility with article 6 of the Convention of one of the statutory provisions governing determination of the minimum term which he must serve under the transitional provisions of the 2003 Act. The compatibility of that provision is the issue in this appeal.
2. On 10 April 2003 the respondent was sentenced to life imprisonment on his conviction for murdering a 13-month old child. The conviction followed a contested trial before Judge Fabyan Evans and a jury at Middlesex Guildhall Crown Court. The evidence disclosed that the child had been the victim of extreme brutality. At the hearing when sentence was passed, counsel for the respondent made no effective attempt to mitigate. The judge did not announce the punitive term he proposed to recommend, but indicated that he would take account of the very young age of the victim, his view that she had been sexually abused and the age of the respondent (who was 22). In a written report dated 19 May 2003 the judge summarised the facts of the case, and recommended that he serve a punitive term of 25 years. He considered that the victim had suffered "ferocious treatment" at the respondent's hands and referred to:
3. In accordance with the practice adopted after the Anderson judgment and before commencement of the new statutory procedure, the Lord Chief Justice made no recommendation on the punitive term to be served by the respondent and the Secretary of State made no determination. But in the early months of 2004, after the new provisions had come into force, steps were taken to refer the respondent's case to a judge of the High Court for determination of the minimum term which he should serve. This determination was to be made, as paragraph 11(1) of the Schedule 22 to the 2003 Act on its face requires, on consideration of the papers (including any written representations of the respondent), without an oral hearing, but the respondent's solicitors contended that on the special facts of his case an oral hearing was essential. They accordingly obtained leave to apply for judicial review seeking:
The application came before the Queen's Bench Divisional Court (Thomas LJ, Richards and Fulford JJ) which, for reasons given in an admirably lucid and succinct judgment delivered by Thomas LJ, allowed it and made a declaration broadly to the effect of the first declaration sought:  EWHC 2753 (Admin).
4. When an adult is convicted of murder in England and Wales the court must impose a sentence of imprisonment for life. But the defendant is not, save in a small minority of cases, ordered to be detained for the rest of his or her life. Ordinarily, a term of imprisonment is set, which the defendant must serve to satisfy the requirements of retribution and general deterrence, the "tariff" or "punitive", now known as the "minimum", term. Section 269 of the 2003 Act empowers the court, on such a conviction being entered, to determine the minimum term to be served, or (more rarely) to order that the defendant shall never be released. Section 276 provides that Schedule 22 shall have effect in transitional cases.
5. In relation to existing prisoners whose minimum terms had been determined by the Secretary of State and notified to them before 18 December 2003 (class (1) in paragraph 1 above), paragraph 3 of Schedule 22 confers a right of application to the High Court for what is in effect a reconsideration of the Secretary of State's determination, and if no application is made that determination stands. Paragraph 6 of Schedule 22 applies to class (2), the class to which the respondent belongs, and requires the Secretary of State to refer the prisoner's case to the High Court for it to determine the earliest time at which the prisoner shall be entitled to be released, or that he shall never be entitled to be released. The High Court is not, by paragraph 8, to order a longer period of detention than, in its opinion, the Secretary of State would have been likely to notify before December 2002, or to order that the prisoner shall never be released unless, in its opinion, the Secretary of State would have been likely to make such an order before December 2002. No detailed reference need be made to the provisions applicable to prisoners in class (3). Central to this appeal, however, is paragraph 11(1) of Schedule 22, which reads:
It is these last four words which are critical.
6. The Secretary of State, through counsel, accepts that there will be some cases, however few, under paragraph 3 or paragraph 6 of Schedule 22 in which fairness will require that there be an oral hearing before the minimum term to be served by an existing prisoner is finally determined by the court. I take this acceptance to acknowledge that in such cases an opportunity to call evidence, or for the prisoner to testify, or for his counsel to address the court in mitigation, may be necessary if the court is to adjudicate fairly. But there is, he submits, nothing in article 6 of the European Convention or the Strasbourg jurisprudence on it to suggest that this opportunity need be afforded before the first instance court. He submits, correctly, that the right of appeal against sentence conferred by section 9 of the Criminal Appeal Act 1968, as amended, applies to an order made by the High Court under paragraphs 3 or 6 of Schedule 22. He submits, again correctly, that on any such appeal there will be an oral hearing and section 23 (permitting the Court of Appeal to receive additional evidence if they think it necessary or expedient in the interests of justice to do so) will apply. On such an appeal, the Court of Appeal will have the power provided in section 11(3) of the 1968 Act:
The Secretary of State contends that in denying a paragraph 6 (class (2)) existing prisoner an oral hearing at first instance paragraph 11(1) of Schedule 22 is not incompatible with article 6 because such a hearing is available in the Court of Appeal, and on a correct understanding of the Strasbourg authorities it is the fairness of the proceedings as a whole which must be judged. Thus any deficiency at first instance is remedied on appeal, and there is no incompatibility.
7. The respondent, through counsel, accepts that the requirements of fairness will not, in the unusual context of paragraph 3 applications and paragraph 6 references, require an oral hearing in every case. In many of such cases, counsel will have addressed the trial judge on the length of the punitive term which that judge should recommend, will have had the opportunity to call evidence at that stage, will have had the opportunity to address written submissions to the Secretary of State, and may have nothing to draw to the attention of the High Court judge making the paragraph 3 or paragraph 6 determination which cannot quite fairly be considered on paper. But such a determination is an imposition of sentence, to be regarded as part of the criminal trial. A criminal trial is, in all save unusual circumstances, required by article 6 of the Convention to be held in public, with the defendant present and having the opportunity, through his legal representative or himself if appearing in person, to call evidence and make submissions relevant to the issue to be decided. In some paragraph 3 applications and paragraph 6 references, however small the minority of cases, fairness will require that such an opportunity be granted at first instance, and paragraph 11(1) of Schedule 22 is incompatible with article 6 in denying that opportunity in all cases, including those where fairness does require such a procedure. This incompatibility is not remedied by the possibility of appeal, since an appeal lies only with the leave of the Court of Appeal (section 11(1) of the 1968 Act) or a certificate of the judge who passed sentence (section 11(1A)), and leave would or might not be granted if the Court of Appeal considered, on the material before it, that the minimum term set by the High Court judge was not manifestly excessive or if the High Court judge did not recognise that fairness required an oral hearing. In any event, the Court of Appeal could not quash the High Court judge's decision on the ground that there had been no oral hearing, and the prisoner would lose the opportunity, which should be open, of an oral hearing before the judge and the Court of Appeal. The respondent does not accept that the incompatibility of paragraph 11(1) of Schedule 22 can be remedied by an oral hearing in the Court of Appeal, even if the European Court, viewing the proceedings overall and in retrospect, might hold that there had been no violation of article 6.
8. In the present application, the courts have not been asked to consider whether the respondent's is one of those rare cases in which fairness will require an oral hearing. That is a question to be considered in the future, by the High Court or the Court of Appeal, or both, depending on the outcome of the appeal.
The European Convention and the authorities
9. The issue before the House turns wholly on the interpretation and application of article 6. Paragraph 11(1) of Schedule 22 is not ambiguous or unclear. It stipulates that on a determination under paragraph 3 or paragraph 6 the High Court judge must act without an oral hearing. But for the Convention there would be no escape from that provision, even if it operated unfairly. So the solution to the problem before the House must be found in the Convention and the authorities on it.
10. Article 6 is entitled "Right to a fair trial", and provides (so far as material for present purposes):
The article guarantees a fair trial to a defendant on the determination of a criminal charge against him or to a party whose civil rights and obligations are to be determined. This is a right which member states undertake to secure to everyone within their jurisdiction. The requirements particularised in article 6(3) are standard conditions of a fair trial, but they are not in themselves absolute: while the overall fairness of a trial cannot be compromised, the constituent rights within article 6 are susceptible to limited qualification in some circumstances: see Brown v Stott  1 AC 681, 693, 704, and the authority cited at pp 693-702. The European Court for its part assesses the fairness of proceedings in national jurisdictions retrospectively, since applicants are required to exhaust their national remedies before resorting to it, and the Court repeatedly asserts and follows the practice of making its assessment on an overall consideration of the national proceedings, viewed as a whole: see, among many examples, Edwards v United Kingdom (1992) 15 EHRR 417, paras 33-34; Miailhe v France (No 2) (1996) 23 EHRR 491, para 43; Rowe and Davis v United Kingdom (2000) 30 EHRR 1, para 59. Thus the Court will assess the overall fairness of the national proceedings viewed as a whole, but will not undertake the task before the House in this appeal, of deciding whether a provision of national legislation is compatible with article 6. This was made clear in Adolf v Austria (1982) 4 EHRR 313, 324-325, para 36, where the Court, citing Guzzardi v Italy (1980) 3 EHRR 333, 361, para 88, and X v United Kingdom (1981) 4 EHRR 188, 202, para 41, said:
If, however, as in Twalib v Greece (1998) 33 EHRR 584, 607-609, paragraphs 52-57, a specific feature is found to be a necessary condition of the fairness of a proceeding and national law precludes fulfilment of that condition, a finding of violation will follow and the inference must be drawn that the national law which precludes fulfilment of the condition is incompatible with article 6.
11. In defining the autonomous meaning, for Convention purposes, of "civil rights and obligations" in article 6(1), the Court has chosen to give the expression a broad meaning, so as to embrace some administrative and disciplinary decisions. This has the consequence that decisions in fields such as this are routinely made in the first instance by bodies that do not have and are not intended to have the independence and impartiality to be expected of a judicial tribunal as required by article 6(1). This was, it would seem, true of the Provincial Councils considered in Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 and Albert and Le Compte v Belgium (1983) 5 EHRR 533, of the Social Insurance Office which featured in Döry v Sweden (Application No 28394/95) (unreported) 12 February 2003, of the planning authorities whose decisions were challenged in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  UKHL 23,  2 AC 295 and of the rehousing manager who featured in Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening)  UKHL 5, 2 AC 430. The Court has not, however, held that the making of an initial decision by a body which does not meet Convention standards of independence and impartiality necessarily taints or invalidates the further stages of decision-making consequent on that initial decision: Le Compte, Van Leuven and De Meyere v Belgium 4 EHRR 1, para 51(a). But, as it was put in Albert and Le Compte v Belgium 5 EHRR 533, 542, para 29:
Thus, in cases such as Le Compte and Albert much of the argument turned on whether the Belgian Court of Cassation had the competence and provided the guarantees necessary to remedy deficiencies at lower levels.