R (Hammond) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas,LORD JUSTICE THOMAS |
| Judgment Date | 25 November 2004 |
| Neutral Citation | [2004] EWHC 2753 (Admin) |
| Docket Number | Case No: CO/3775/04 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 November 2004 |
[2004] EWHC 2753 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thomas
Mr Justice Richards And
Mr Justice Fulford
Case No: CO/3775/04
Phillippa Kaufmann (instructed by Bhatt Murphy) for the Claimant
Kate Gallafent (instructed by The Treasury Solicitor) for the Defendant
This is the judgment of the Court.
The background
On 10 April 2003 the claimant, then aged 22, was convicted of the murder on 31 July 2002 of Jade Hart, a child of 13 1/2 months. The trial Judge, HH Judge Fabyn Evans, then heard oral representations from counsel as to the recommendation that he should make to the Home Secretary in respect of that part of the sentence of mandatory life imprisonment which was needed for punishment in the sense of retribution and deterrence (then known as the "tariff term"). Counsel, who represented the claimant, accepted in his oral submission to the court that the judge would be able to take account of the aggravating features from having heard the evidence; he drew to the Judge's attention, in mitigation, the fact that the list of the applicant's previous convictions was devoid of any offence of violence. After hearing the mitigation, the Judge then passed a sentence of mandatory life imprisonment, stating that he would not announce his recommendation on the tariff term, but that he would take into account the claimant's age, the fact that the victim was a very young child and the fact that, in his view, she had been sexually abused.
On 19 May 2003 the Judge made a written report in the form laid down by the Lord Chief Justice. It set out his findings as to the injuries that the child had received and made a recommendation to the Home Secretary that the claimant should serve a minimum term of 25 years as the tariff term.
On 25 November 2002 the House of Lords in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 A.C. 837 had decided that the fixing of the tariff term by the Home Secretary for those convicted of murder was part of the decision as to the sentence. A sentence was part of a trial for the purpose of a right to a fair hearing by an independent and impartial tribunal guaranteed under the provisions of Article 6 (1) of the European Convention on Human Rights (the Convention). It therefore followed that this judicial function should not be exercised by the Home Secretary, a member of the Executive branch of government.
Immediately after the decision, the Home Secretary stopped fixing tariffs for those sentenced to life imprisonment by a judge. Time was properly taken for consideration as to the procedure by which the tariff term should be fixed. In May 2003, the Home Secretary introduced an amendment to the Criminal Justice Bill then before Parliament to give effect to a procedure for the setting of the tariff term by the judiciary.
On 12 June 2003, in giving its judgment in Easterbrook v UK [2003] 37 EHHR 812 the European Court commented on the fixing of a tariff term by the Home Secretary in 1998 for a non mandatory life prisoner convicted in 1988:
"The Court would observe that the sentencing exercise must necessarily be carried out by an independent and impartial tribunal, namely a court offering guarantees and procedure of a judicial nature. It was not a court that fixed the applicant's tariff in a public, adversarial hearing and in the circumstances it is not sufficient to satisfy the fundamental principle relating to the separation of powers that the member of the executive who issued the decision was guided by judicial opinion. "
The amending provisions put forward by the Home Secretary were enacted by Chapter 7 of the Criminal Justice Act 2003 and Schedule 21 which were brought into force on 18 December 2003. Transitional provisions were contained in Schedule 22.
The transitional provisions applied to three categories of mandatory life prisoners.
i) Those sentenced before 18 December 2003 whose tariff had already been fixed and notified by the Home Secretary; there are currently about 1,830 such prisoners.
ii) Those, including the claimant, sentenced before 18 December 2003 whose tariff had not been fixed by the Home Secretary. There are currently about 710 such prisoners.
iii) Those sentenced after 18 December 2003 whose offences were committed before 18 December 2003.
This application is not concerned with those in the third category, as the tariff term (or, as it is designated in the Act, the minimum term) is set by the trial judge at the conclusion of the trial as part of the sentencing exercise carried out in the ordinary way. In determining the minimum term for such a prisoner, the Judge must act in accordance with the provisions of s. 269 and paragraph 10 of Schedule 22.
Those in the first and second category are described in the Act as "existing prisoners"; it is with such existing prisoners that the claimant's application is concerned. As to those in the first category, paragraph 3 of Schedule 22 provides that they may apply to the High Court to review the tariff term under paragraph 2 of the Schedule; the High Court is given power to reduce that term to a minimum term. As to those in the second category, paragraph 6 of Schedule 22 provides that the Home Secretary is bound to refer each case to the High Court to have the minimum term fixed under s 269 ( 2) or (4) of the Act.
There is provision by paragraph 14 of Schedule 22 for an appeal to the Court of Appeal Criminal Division, with leave, against any decision made in the High Court, in respect of those in the first or second category. It was common ground before us that any hearing before the Court of Appeal would, in accordance its usual procedure, be oral and that the Court would have the power to admit evidence under s.23 of the Criminal Appeal Act 1968, under its inherent jurisdiction.
However, in respect of the hearing before the High Court, the statutory provision is, on its face, quite different. Paragraph 11(1) of Schedule 22 provides:
"An application under paragraph 3 or a reference under paragraph 6 is to be determined by a single judge of the High Court without an oral hearing."
The challenge made by the claimant
The claimant's case was referred by the Home Secretary to the High Court to set the minimum term under paragraph 6 of Schedule 22. On 16 March 2004, the claimant was notified by the Court Service, on behalf of the High Court, that the Judge would announce the decision on the minimum term in public in open court after consideration of various matters, including the trial judge's report, the record of any previous convictions and representations made on his behalf. Such representations were requested by 16 June 2004. Some delay followed apparently because the claimant did not receive notification that public funding was available for his legal representation until June 2004.
His solicitors then wrote to the Court Service, stating he wished the High Court Judge to hold an oral hearing because of the complex factual and legal issues that arose. In later submissions, it was made clear on his behalf that, although he had denied at the trial being involved in the killing of Jade Hart, that was no longer the case and he wished to give oral evidence as to what he did and why. He also wanted to call evidence from a number of witnesses about his loss of temper and episodes of loss of control. He wanted the High Court Judge to determine, after hearing such oral evidence, whether there had been any sexual abuse and what the motive was for the violence perpetrated on the victim. It was only in the light of such a determination that the High Court Judge could properly fix his minimum term. His solicitors gave notice that he would seek to challenge the provisions which appeared to prevent the High Court Judge from holding an oral hearing for this or any other purpose.
On 3 August 2004, the claimant commenced these proceedings challenging the procedure which prevented an oral hearing in respect of existing prisoners in the first and second categories. He does not wish the Court to determine whether on the facts of his specific case, an oral hearing is required, but challenges the procedure set out in paragraph 11 of Schedule 22 which requires every determination by the High Court Judge to be made without an oral hearing.
It is contended on his behalf that a procedure which denies an oral hearing in every case is not compatible with Article 6 (1) in so far as it precludes the right to an oral hearing. However, it was submitted that paragraph 11 of Schedule 22 can, consistently with the approach of the House of Lords in R v A (No 2) [2002] AC 45 (and in particular the principles set out in the speech of Lord Steyn at paragraphs 37, 38 and 44), be read compatibly with Article 6 (1) by making it subject to the implied condition that the High Court Judge may in his discretion order a hearing where he considers such a hearing is required to comply with an existing prisoner's rights under Article 6 (1).
It is not disputed by the Home Secretary that an oral hearing may in some cases be required to comply with Article 6 (1). In a witness statement, made on behalf of the Home Secretary, the Head of the Lifer Review Recall Section of the National Offender Management Service has made it clear that in the majority of cases a paper based process would provide the fairest way of ensuring that initial decisions were taken in a...
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