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)
33. Although the guarantee of a public hearing in article 6(1) is extremely important, the European Court has recognised that exceptional circumstances may justify dispensing with it. In Göç v Turkey Reports of Judgments and Decisions 2002-V p 193, the dissenting judges noted three criteria: 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. None of the cases on which the judges based this useful summary involved criminal proceedings and Göç itself involved civil proceedings within the meaning of article 6(1). Lord Hope of Craighead referred to the summary in R (Dudson) v Secretary of State for the Home Department  3 WLR 422, 432, para 30, when deciding that it was not necessary for there to be an oral hearing when the Lord Chief Justice was reviewing the minimum term previously ordered by the Secretary of State in a case where the claimant had been sentenced to be detained during Her Majesty's pleasure. Both my noble and learned friend, Lord Bingham of Cornhill, at p 424E, para 2, and Lord Hope, at p 434A, para 34, were at pains to stress that the operation on which the Lord Chief Justice had been engaged was very different from sentencing at first instance. There is nothing in the cases to suggest that such exceptional circumstances have so far been found to exist in first instance criminal proceedings. This is presumably because such proceedings will, more often than not, involve disputed factual or legal issues and the public interest will generally be at stake. But the Divisional Court has explained all the reasons why the circumstances in which the High Court judge is called on to fix the minimum period in cases like the present make this too a very unusual exercise. Moreover, counsel for the respondent accepted that in many cases of this kind an oral hearing would not be required. It is, however, unnecessary to explore the matter further since the House is affirming the declaration of the Divisional Court that the High Court judge has the discretion to order an oral hearing where such a hearing is required to comply with article 6(1) - in other words, whenever fairness requires.
34. I would comment on one other matter which surfaced during the hearing. Read without the benefit of the Divisional Court's gloss, paragraph 11(1) of Schedule 22 would prevent the judge from holding an oral hearing. It is this statutory bar which means that the guarantee in article 6(1) is violated, since in such a system the prisoner is not "entitled" to an oral hearing. Resort has therefore to be had to the Human Rights Act. Where, however, the legislation permits a judge to hold an oral hearing, the prisoner is "entitled" to that hearing in an appropriate case and the guarantee is given effect. If, in that situation, a judge wrongly declines to hold an oral hearing, the guarantee in article 6(1) operates by the Court of Appeal quashing the relevant proceedings on the ground of the judge's erroneous decision and holding as full a hearing as is necessary to do justice in the circumstances. I respectfully agree with what my noble and learned friend, Lord Brown of Eaton-under-Heywood, is going to say on this matter.
35. I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Bingham of Cornhill, Lord Hoffmann and Lord Brown of Eaton-under-Heywood. I agree with their reasons and conclusions and for those reasons I too would dismiss the appeal.
LORD BROWN OF EATON-UNDER-HEYWOOD
36. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with him that this appeal should be dismissed and there is comparatively little that I wish to add.
37. The central issue raised on the appeal is whether paragraph 11(1) of Schedule 22 to the Criminal Justice Act 2003, a provision which on its face denies the sentencing judge any possibility of an oral hearing even when he considers this essential for the fair determination of a mandatory life prisoner's minimum term, is compatible with the prisoner's right to a fair trial, more particularly to "a fair and public hearing", under article 6 of the European Convention on Human Rights. It is the Crown's somewhat surprising contention that it is, a contention founded on the proposition that the prisoner in such a case will obtain his fair and public hearing when he appeals to the Criminal Division of the Court of Appeal. Such an appeal, submits Mr Crow, whether it is analysed as curing an initial violation of article 6 or as averting such a violation in the first place, ensures that the proceedings as a whole are to be regarded as fair and public and thus compliant with the Convention. Certainly, he submits, following an appeal the prisoner would have no sustainable complaint before the European Court of Human Rights ("ECtHR).
38. In examining this argument it is necessary to put aside the thought that an oral hearing (particularly one at which evidence is adduced) before the sentencing judge would plainly be altogether more convenient and cost-effective than such a hearing before the Court of Appeal: expediency and compatibility, Mr Crow reminds us, are two different things. I put aside too a number of possible difficulties in the prospective appellant's path: the need for leave to appeal, the need to persuade the Court of Appeal that oral evidence is "necessary or expedient in the interests of justice" within the meaning of section 23(1) of the Criminal Appeal Act 1968, and the burden of satisfying the Court of Appeal that the minimum term fixed by the sentencing judge was manifestly excessive.
39. The root question arising is whether or not, assuming the prisoner can indeed be assured of a full, fair and public hearing leading to a just sentence (minimum term) on appeal, an inability to secure such a hearing at first instance would be incompatible with the Convention. It is, of course, only if a legislative bar on the sentencing judge's power to hold an oral hearing would be incompatible with the prisoner's Convention rights that section 3 of the Human Rights Act 1998 could be invoked, in the manner agreed by both parties to be possible if required, to avoid such incompatibility.
40. In examining the Strasbourg jurisprudence it is necessary to bear in mind that the only concern of the ECtHR is to decide whether, having regard to whatever domestic proceedings there may have been, the complainant is the victim of an unremedied violation of a Convention right. Before even one comes to consider the extensive case law on article 6, three other Convention articles should be noted: article 13 which requires that "everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority", article 34 which allows the court to receive applications from anyone "claiming to be the victim of a violation", and article 35 (1) which provides that "the court may only deal with the matter after all domestic remedies have been exhausted." Provided that the national courts have remedied any violation (certainly where they have at the same time acknowledged that there has been a violation of the Convention) the court is unlikely even to regard the complainant as a victim. It is hardly surprising, therefore, that, when one comes to consider the article 6 case law, one finds a certain looseness of expression and perhaps even some apparent inconsistency of approach as to whether, in those applications to Strasbourg which have failed, that is because the domestic appeal process is found to have avoided a Convention violation or merely to have remedied it.
41. It is now clear that, so far as administrative or disciplinary tribunals are concerned, there is compliance with article 6 so long as the requisite guarantees (of an independent and impartial tribunal, a fair and public hearing and the like) are provided, if not at the initial decision-making stage, then on a subsequent review or appeal (by a tribunal with the jurisdiction to undertake a sufficient merits hearing)see, for example, Albert and Le Compte v Belgium (1983) 5 EHRR 533 and, domestically, R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295 and Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening)  2 AC 430.
42. With regard, however, to "courts of the classic kind . . . within the standard judicial machinery of the country" (see De Cubber v Belgium (1984) 7 EHRR 236, 248, para 32) the circumstances in which the basic ingredients of a fair trial guaranteed by article 6, if lacking at first instance, will thereafter be found sufficiently provided instead in subsequent proceedings is less clear. There are many considerations in play. If the first instance court was lacking in independence or impartiality, Findlay v United Kingdom (1997) 24 EHRR 221 suggests that that defect may be quite simply irremediable. In other cases much will depend on whether the appeal constitutes a complete rehearing or is otherwise capable of providing full redress for whatever deficiencies were found in the proceedings below.
43. For the reason already given, moreover, even when a subsequent appeal is found to have made good any deficiencies in the initial court proceedings, it is often unclear whether, in finally concluding that article 6 has not been breached, the court is finding an initial violation to have been remedied or is holding rather that article 6 allows for deficiencies at first instance providing always that they are remedied on appeal. Some of the Strasbourg judgments talk in terms of the subsequent procedure remedying "defects" (for example, Edwards v United Kingdom (1992) 15 EHRR 417, 432, para 39) or "serious shortcomings" (Twalib v Greece (1998) 33 EHRR 584, 604, para 40) in the original trial. Others, however, notably cases where the court is rejecting the state's contention that the defects have been remedied and is finding a breach of article 6 (as in De Cubber itself, Colozza v Italy (1985) 7 EHRR 516 and Kyprianou v Cyprus (Application No 73797/01) (unreported) 27 January 2004, the language is that of making reparation for an initial violation of the Convention. Take this, for example, from De Cubber 7 EHRR 236, 249, para 33:
44. As I have explained, it matters not to the ECtHR whether a violation has been remedied by the domestic courts or there has never been a violation in the first place: in either event the article 6 complaint will fail.
45. For my part, notwithstanding the doubts expressed by Lord Bingham in paragraph 16 above, I am inclined to conclude (and am certainly prepared in Mr Crow's favour to assume) that, if the sentencing judge had the power to hold a normal hearing but, wrongly as the Court of Appeal thereafter held, thought it unnecessary to exercise it to achieve a fair determination of the prisoner's minimum term, a full appeal hearing at which any necessary oral evidence would be adduced would then operate to remedy the first instance failure and would avoid a successful application to Strasbourg whether or not the appeal was properly to be analysed as making reparation for an initial violation.
46. It by no means follows, however, that the same view can be taken of a case where the sentencing judge himself recognises his inability to reach a fair determination without an oral hearing but is prevented from holding one by a legislative bar. It seems to me one thing to hold that a judge's misjudgement is remediable by an effective appeal; quite another to hold that the state can deliberately require a number of first instance determinations to be made unfairly on the basis that this unfairness will then be remedied on appeal.