COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT (KENNEDY LJ & MITCHELL J)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MANTELL
LORD JUSTICE CARNWATH
| Secretary of State
||Defendant / Appellant
|- and -
||Claimant / Respondent
||Claimant / Appellant
|- and -
|Secretary of State
||Defendant / Respondent
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Tim Owen QC Hugh Southey (instructed by Messrs Bhatt Murphy) for Dudson
David Pannick QC & Kate Gallafent (instructed by the Treasury Solicitor) for the Secretary of State
Phillip Sales (instructed by the Treasury Solicitor) for the Lord Chief Justice
Crown Copyright ©
Lord Phillips, MR :
This is the judgment of the court.
The facts and the issues
(i) The procedure leading to the Secretary of State's decision was flawed in that the Lord Chief Justice, when deciding what advice to tender to the Secretary of State, had declined to grant Dudson an oral hearing
(ii) The advice given to the Secretary of State by the Lord Chief Justice was defective in that the Lord Chief Justice had failed to have regard to Dudson's welfare when deciding on the appropriate tariff.
(i) The Lord Chief Justice had been under no obligation to afford Dudson an oral hearing. Alternatively, if Dudson had been entitled to an oral hearing, he had waived that entitlement.
(ii) That the decision of the Lord Chief Justice had paid due regard to Dudson's welfare.
History prior to Venables
"(1) The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life or a person detained under section 53 of the Children and Young persons Act 1933 (young offenders convicted of grave crimes), but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty's pleasure or for life except after consultation with the Lord Chief Justice of England together with the trial judge if available."
This was the first statutory provision that applied both to adults and to young persons who had been convicted of murder.
"When a date for a first, or subsequent, formal review is set for several years ahead, the Home Office will review the case on the basis of reports of the kind now prepared for formal review, at regular, and in any event not longer than three-year, intervals. Moreover, governors will be told to report at once any exceptional development requiring action. These procedures will ensure that I can consider any special circumstances or exceptional progress which might justify changing the review date. But except where a prisoner has committed an offence for which he has received a further custodial sentence, the first formal review date will not be put back. In any event, ministers will review every case when a life sentence prisoner has been detained for 10 years"
(2) If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.
(3) The Board shall not make a recommendation under subsection (2) above unless the Secretary of State has referred the particular case, or the class of case to which the case belongs, to the Board for advice.
"But for the fact that the Home Secretary decided, when formulating the new scheme, to retain in a modified shape the existing practice of inviting the opinion of the judges, they would never enter the picture at all."
"Under those procedures, shortly after a person has received a mandatory life sentence, the Secretary of State invites the judiciary to give its views on the period to be served to satisfy the requirements of retribution and deterrence. The judiciary's views presently comprise the advice of the trial judge and the Lord Chief Justice. Their advice is one factor among others which the Secretary of State considers before he sets the date for the first review by the Parole Board of the case for releasing the prisoner on licence. This review is timed to take place three years before the expiry of the minimum period which the Secretary of State considers necessary to satisfy the requirements of retribution and deterrence or where that period is 20 years or more, 17 years after sentence."
"I take this opportunity to emphasise that the view which I or a minister acting under my authority takes, at the beginning of a mandatory life sentence, of the period necessary to satisfy the requirements of retribution and deterrence is an initial view of the minimum period necessary to satisfy those requirements. It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it, or by increasing it where I, or a successor in my office, concludes that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined."
In the course of the hearing in Venables the Secretary of State made it plain that, in making any changes to the tariff period, he would only have regard to matters relevant to the circumstances of the commission of the crime or the applicant's state of mind when the offence was committed. He would not in any circumstances vary the tariff period by reason of events occurring after the commission of the crime - see Venables p.495. This contrasted with the more flexible approach that had been announced by Mr Brittan that we have quoted at paragraph 21 above.
"Everything that I have said about the practice of the Secretary of State in relation to mandatory life sentence prisoners applies equally to persons who are, or will be, detained during Her Majesty's pleasure under section 53(1) of the Children and Young Persons Act 1933, as well as to persons who have been, or will be, sentenced to custody for life under section 8 of the Criminal Justice Act 1982."
This recognised the fact that, although Mr Brittan's statement had referred only to those serving sentences for life imprisonment, the Secretary of State had adopted the same practice in relation to young persons detained during Her Majesty's pleasure. It is time to turn to the history of the treatment of young persons.
"Sentence of death shall not be pronounced on or recorded against a child or young person, but in lieu thereof the court shall sentence the child or young person to be detained during His Majesty's pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and under such condition as the Secretary of State may direct, and while so detained shall be deemed to be in legal custody."
"(1) A person convicted of an offence who appears to the court to have been under the age of 18 years at the time of the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life, nor shall sentence of death be pronounced on or recorded against any such person; but in lieu thereof the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty's pleasure, and if so sentenced he shall be liable to be detained during Her Majesty's pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct. (2) Where a child or young person is convicted on indictment of any offence punishable in the case of an adult with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law and the court is of the opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period [not exceeding the maximum term of imprisonment with which the offence is punishable in the case of an adult] as may be specified in the sentence; and where such a sentence has been passed the child or young person shall, during that period ... be liable to be detained in such place and on such conditions as the Secretary of State may direct. (3) A person detained pursuant to the directions of the Secretary of State under this section shall, while so detained, be deemed to be in legal custody "
"Every court in dealing with a child, or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person "
"Accordingly one has within the scope of Section 53 an entirely flexible procedure in which, as the subject develops and his character matures, the Home Secretary can direct him to appropriate training and eventually order his release when release is possible"
43(1) Subject to subsections (4) and (5) below, this Part applies to persons serving sentences of detention in a young offender institution, or determinate sentences of detention under section 53 of the Act of 1933, as it applies to persons serving equivalent sentences of imprisonment.
(2) Subject to subsection (5) below, this Part applies to persons serving (a) sentences of detention during her Majesty's pleasure or for life under section 53 of the Act of 1933; or (b) sentences of custody for life under section 8 of the Act of 1982, as it applies to persons serving sentences of imprisonment for life."
Section 51 contained interpretation provisions in respect of Part II of the Act of 1991. The section included a provision which provided that in that Part " "life prisoner" has the meaning given by section 34(7) above (as extended by section 43(2) above)." Section 51(1) also included a definition of a "discretionary life prisoner" as having "the meaning given by section 34 above (as extended by section 43(2) above)." Section 43(2) thus provided a further link between the provisions in the Act dealing with young offenders and those dealing with adult prisoners. The effect of these convoluted provisions proved to be the critical issue in Venables.
The decision in Venables
Developments since the decision in Venables
"The Court notes that Article 6(1) guarantees, inter alia, "a fair hearing by an independent and impartial tribunal ". "Independent" in this context means independent of the parties to the case and also of the executive. The Home Secretary, who set the applicant's tariff, was clearly not independent of the executive, and it follows that there has been a violation of Article 6(1)."
An identical result was reached in the case of Thompson's application.
"Before I make a recommendation to the Home Secretary, in both new and existing cases, I shall invite written representations from the detainees' legal advisers and also from the Director of Public Prosecutions who may include representations on behalf of victim's families."
"When making recommendations to the Home Secretary in such cases I will announce my reasons in open court after taking into account any written representations I receive."
No provision was made for oral submissions.
"(1) This section applies if a court passes a life sentence in circumstances where
(a) the sentence is not fixed by law; or
(b) the offender was aged under 18 when he committed the offence
(2) The court shall, unless it makes an order under subsection (4) below, order that the provisions of section 28(5) to (8) of the Crimes (Sentences) Act 1997 (referred to in this section as the "early release provisions") shall apply to the offender as soon as he has served the part of his sentence which is specified in the order.
By definition a life sentence includes a sentence of detention during Her Majesty's pleasure - see section 82A(7). Thus this section gives effect to the decision of the ECtHR in V v UK, in that it provides that the Court, rather than the Secretary of State, is to set the tariff.
"the fact remains that the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender."
This constituted recognition of the accepted position at the time under our domestic jurisprudence. That position came, however, to be repeatedly questioned in the English Courts, and in Stafford v United Kingdom (2002) 35 EHRR 1121 the Grand Chamber of the ECtHR reached the following conclusion at paragraph 78:
"the continuing role of the Secretary of State in fixing the tariff and in deciding on a prisoner's release following its expiry, has become increasingly difficult to reconcile with the notion of separation of powers between the executive and the judiciary, a notion which has assumed growing importance in the case law of the court (see mutatis mutandis, Incal v Turkey (2000) 29 EHRR 449)"
Referring to the Wynne judgment the court observed, at pp 1143-1144, para 79:
"The court considers that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The court concludes that the finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner."
The common issue
"17. Now that the penal term for the Claimant has been set by a judge (the Lord Chief Justice), the Claimant is wrong to contend that ex parte Venables and Thompson requires that the Secretary of State must periodically review her minimum term in the light of her progress:
(1) Two members of the House of Lords (Lord Goff of Chieveley and Lord Lloyd of Berwick) concluded that the Secretary of State had no obligation to review the minimum term from time to time in the light of exceptional progress even when the minimum term was fixed by the Secretary of State. See Lord Goff of Chieveley at p.487D-E and Lord Lloyd of Berwick at p.513D-G. They accepted the argument advanced on behalf of the Secretary of State that it would be anomalous were young offenders serving a sentence of detention during Her Majesty's pleasure entitled to a periodic review of their penal terms for progress when no other young offender who receives a discretionary life sentence for a serious offence under section 53(2) and (3) of the 1933 Act. In such a case, the penal term is fixed by the trial judge (subject to appeal) and is not subject to reassessment according to exceptional progress.
(2) Three members of the House of Lords (Lord Browne-Wilkinson, Lord Steyn and Lord Hope of Craighead) concluded that the Secretary of State did have an obligation to review the minimum term from time to time in the light of exceptional progress when the minimum term was fixed by the Secretary of State.
(3) But two members of that majority made it plain that the Secretary of State only had such a duty because the minimum term was set by him and not by an independent judicial body. See Lord Hope of Craighead at p.532E-G and Lord Browne-Wilkinson at pp.501H-502F. They rejected the arguments about an anomaly (see (1) above) by emphasising that the penal term was, at that time, set by the Secretary of State, and so it was right and proper that the offender should enjoy the additional protection of a right to a review from time to time in the light of progress.
(4) As stated in ex parte Venables and Thompson by Lord Browne-Wilkinson at p.502E, and by Lord Hope of Craighead at p.532F-G, when a judge sets a penal term, then the interests of the young offenders, as guaranteed by section 44 of the Children and Young Persons Act 1933, are properly protected by that judge setting a term which takes account of the age of the offender (as in other cases of a penal term fixed by a judge in respect of a young offender).
(5) So the decision of the majority of the House of Lords in ex parte Venables and Thompson far from assisting the Claimant in truth defeats her claim, now that her penal term has been set by the Lord Chief Justice."
" the fact that the Secretary of State specifies a penal element which has to be served by a young offender sentenced to detention under section 53(1) of the Act of 1933 does not mean that his welfare or rehabilitation are being ignored. On the contrary, a regime is established for his detention which is specifically directed towards matters of this kind. But it does mean that good progress during detention does not have the effect of reducing the penal period. That is regarded as being consistent with the nature of punishment. This is no doubt why, under the statutory regime in section 34 which is applicable in the case of young offenders sentenced to life imprisonment under section 53(2) of the Act of 1933, no provision is made for any such reduction, the only statutory power of release during the penal period being on compassionate grounds: see section 36, which is equally applicable to discretionary life prisoners and to mandatory life prisoners (including young offenders sentenced to detention under section 53(1)). It would be very strange if the Secretary of State should be required, when exercising his discretion under section 35(2), to take account of good progress during detention with a view to reducing the penal period in the case of a young offender who is a murderer, when that course has not been made available by Parliament in the case of a young offender sentenced to detention for life for a lesser offence, for example, one who has attempted to kill but has only succeeded in maiming his victim. I cannot believe that Parliament should have contemplated so extraordinary and anomalous a differentiation as this.
For the same reasons I do not, with all respect, feel able to accept the reasoning of Lord Woolf M.R. in his dissenting judgment in the Court of Appeal. Since there is no basis in the statute for departure, on the ground of good progress during detention, from a penal element set under section 34 in the case of a young offender sentenced to detention for life under section 53(2) of the Act of 1933. Parliament cannot have contemplated that the Secretary of State should, in the exercise of his discretion under section 35(2), have been bound to consider departing, on the ground of good progress during detention, from a penal period specified by him in respect of a young offender sentenced to detention for the greater offence of murder under section 53(1)."
"In the first place, the progress of these two applicants in detention, while not qualifying them for release until after 15 years, will certainly be monitored during that period; no doubt exceptional progress will be an important factor in deciding how soon thereafter they may be released. Secondly, Parliament has itself provided for early release on compassionate grounds: see section 36 of the Act of 1991. Thirdly, there is no special provision for early release on the grounds of exceptional progress where a young offender is serving a determinate sentence or a discretionary life sentence under section 53(2) of the Act of 1933. Subject to section 43(4) and (5) of the Act of 1991, Parliament intended that they should be dealt with in the same way as adult offenders. So why should there be any provision for early release on the grounds of exceptional progress in the case of young offenders serving the equivalent of a mandatory life sentence? For these reasons, and especially the third, I cannot agree that the Home Secretary's policy announced in 1993 is unlawful on the ground that it lacks sufficient flexibility, nor that its application in the case of these two applicants was unlawful on that ground."
"There is here an anomaly but it is not sufficient to persuade me that Parliament, by a side-wind, meant to change the nature of the sentence of detention during Her Majesty's pleasure into one where the development of a child can be ignored during the tariff period. To effect such a change would have represented a major policy shift not in any way foreshadowed by the White Paper("Crime, Justice and Protecting The Public" (1990) (Cm. 965)) which preceded the passing of the Act of 1991. Nor do I think that the anomaly is as great as it seems at first sight. In setting the judicialised tariff period under section 34(2) of the Act of 1991, the judge is directed to specify such a period as is "appropriate" taking into account the seriousness of the offence. The section does not say that that is the only matter to be taken into account. No doubt the judge, in fixing the period, will also take into account all other normal sentencing considerations. In relation to a child sentenced to detention for life the judge is bound by section 44(1) of the Act of 1933 (which was not repealed or altered in any way by the Act of 1991) to have regard to the welfare of the child. Therefore, in imposing such a tariff he must take into account the need for flexibility in the treatment of the child and, in so doing, will set the minimum tariff so as to ensure that at the earliest possible moment the matter comes under consideration of the Parole Board who will be able to balance the relevant factors including the development and progress of the child."
" ever since the Children Act 1908 there has been legislation in this country requiring child offenders to be dealt with on a basis different from that applicable to adults. In the case of children, Parliament has directed that attention should be given not only to the requirements of punishment and protection of the public from risk but also to the welfare of the child offender. What was, in my view, tacit in the Act of 1908 was made explicit by section 44(1) of the Act of 1933 (as amended by section 72(4) of and Schedule 6 to the Children and Young Persons Act 1969) which provides:
"Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person "
That subsection is still in force and is one of the basic principles applicable to dealing with child offenders. It is clear from the statutory direction that in dealing with children (whether by sentencing or otherwise) a court is bound to take into account the welfare of the child."
"In this appeal, your Lordships are only concerned with the lawfulness of the policy as applied to children sentenced to be detained during Her Majesty's pleasure. In relation to such children, the question is whether it is lawful to adopt a policy which, even in exceptional circumstances, treats as irrelevant the progress and development of the child who has been detained. This is plainly the effect of the inflexible 1993 policy. The answer to that question must depend upon the character of a sentence of detention during Her Majesty's pleasure. If such a sentence requires the Secretary of State to have regard not only to those factors relevant in considering an adult life prisoner (retribution, deterrence and risk) but also to the progress and development of the child whilst detained, it seems to me clear that the policy is unlawful since it excludes from consideration, even in exceptional circumstances, a factor relevant to the decision whether or not to release the child."
"Why did Parliament in 1908 introduce for child murderers a mandatory sentence of indefinite duration instead of a sentence of detention for life? Lord Steyn and Lord Hope of Craighead have set out the history of the legislation which shows that since 1908 Parliament has adopted a different policy towards child offenders from that adopted towards adults. In particular, in the case of child offenders the courts have to have regard not only to retribution, deterrence and prevention of risk, but also to the welfare of the child offender himself. This has been made demonstrably clear since 1933 by section 44(1) of the Act of 1933 which I have already quoted and which Mr Pannick accepts must also guide the Secretary of State in the exercise of his discretion. That subsection is still part of the law of England: it cannot just be ignored, it provides that in dealing with a child or young person the court shall have regard to the welfare of the child. In the face of that clear statutory provision it seems to me inescapable that, in adopting a sentence of detention during Her Majesty's pleasure, the legislature have in mind a flexible approach to child murderers which, whilst requiring regard to be had to punishment, deterrence and risk, adds an additional factor which has to be taken into account, the welfare of the child."
"Therefore the Secretary of State in exercising his discretion as to the duration of the detention of the child must at all times be free to take into account as one of the relevant factors the welfare of the child and the desirability of reintegrating the child into society. The extent to which this is possible must depend, in the case of a young child at least, on the way in which the child is maturing through his formative years. If the child is making exceptional progress and it is clear that his welfare would be improved by release from detention, that is one of the factors the Secretary of State must take into account and balance against the other relevant factors of retribution, deterrence and risk. The child's welfare is not paramount: but it is one of the factors which must be taken into account"
"Against this background, I am unable to accept that Parliament by making the same release provisions applicable to both mandatory life prisoners and those subject to mandatory sentence during Her Majesty's pleasure intended to effect any change in the nature of the sentences themselves. The Act of 1991 was not dealing with sentences at all. Any intention to alter the indeterminate duration of detention during Her Majesty's pleasure would surely have been spelt out much more clearly. The mere fact that the powers relating to the release of both categories of mandatory prisoner are contained in the same statutory provisions does not mean that the same considerations have to be taken into account in exercising those powers, irrespective of the nature of the sentence."
"It may be said that this approach is so out of line with what happens in the case of children and young persons who are sentenced to determinate sentences, or to detention for life at the discretion of the trial judge under section 53(2) of the Act of 1933, that it is not sustainable and must be rejected. But I am not persuaded by this objection. The sentences which are imposed in these cases are all judicial sentences. A determinate sentence is one which has been selected by the trial judge, having due regard to the provisions of section 44 of the Act of 1933. A discretionary life sentence also is one which the trial judge has selected, and to which he has applied the penal element as he is required to do so by section 34(2) of the Act of 1991. In neither case is the child or young person exposed to the determination of the penal element by the Secretary of Sate after taking into account considerations of policy. And if, as cannot be doubted, section 44 of the Act of 1933 must be taken into account by the judge when passing the sentence which he decided to impose it would seem both illogical and unfair if the child or young person were to be deprived of that protection in cases where the mandatory sentence under section 53(1) was pronounced."
" the sentence of detention during Her Majesty's pleasure is a separate and distinct sentence from that of life imprisonment. It recognises the special characteristics of the young offender, and especially of the child offender. There is built into the sentence a measure of leniency in view of the age of the offender at the time of the offence. The measure of that leniency is that, in his case, in the working-out of the sentence punishment and welfare, present and future, are both equally relevant. He is to be detained without limit of time, but expressly on terms which do not deprive him of his liberty for the rest of his days."
"this means that the child's progress and development while in custody, as well as the requirements of punishment, must be kept under review throughout the sentence. A policy which ignores at any stage the child's development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy. The practice of fixing the penal element as applied to adult mandatory life prisoners, which has no regard to the development and progress of the prisoner during this period, cannot be reconciled with the requirement to keep the protection and welfare of the child under review throughout the period while he is in custody."
"It is the concept of continuing review, with the prospect of rehabilitation and release from custody at some time in the future, albeit on life licence, which marks this sentence out for the application of different criteria from the sentence of life imprisonment."
"It is not necessary in this case to consider whether the tariff approach in its current form is objectionable where adult mandatory life prisoners are concerned. The objection with which we have to deal applies only in the case of children and young persons, whose sentence is one of detention under section 53(1) of the Act of 1933. The younger the child the more objectionable it becomes, because the factors which favour special treatment in their case grow stronger the closer they were to the minimum age of criminal responsibility when the offence was committed. The tariff as applied to them fails to recognise that the welfare of the child, in the light of progress and developments while in custody, may require consideration of his case by the Parole Board at an earlier date than would otherwise be indicated by the application to his case of a fixed period in respect of the penal element. The contrast between the flexibility which regard for the protection and welfare of the child requires and the rigidity of the policy indicates the reason for regarding the policy, as it was applied in this case, as unlawful."
"A sentence of detention during Her Majesty's pleasure requires the Home Secretary to decide from to time, taking into account the punitive element, whether detention is still justified."
"The new philosophy which was adopted in 1908 has therefore repeatedly been reaffirmed by Parliament. The effect of the relevant legislation is as follows. Parliament differentiated between the two sentences. An order of detention during her Majesty's pleasure involves merely an authority to detain indefinitely. That means that the Home Secretary must decide from time to time, taking into account the punitive element, whether detention is still justified. Life imprisonment involves an order of custody for life. That means, as the Home Office has interpreted the sentence of mandatory life imprisonment, that the Home Secretary must consider whether and when release is justified. These are obviously wholly different approaches."
The issues in Dudson
Should the Lord Chief Justice have afforded Dudson an oral hearing?
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly
Mr Owen argued that these provisions applied both to the determination of guilt and to the sentencing process, and that the Lord Chief Justice had failed to grant those representing Dudson the right to make oral submissions that is implicit in the right to a public hearing.
"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. In the present case these three conditions were satisfied."
"In coming to that conclusion I bear in mind that the argument is not based upon any dispute as to the facts which an oral hearing would have helped to clarify. The facts in this case were not in issue. Mr Easterbrook had had an opportunity of advancing oral submissions before the judge as to matters which were relevant to sentence and also on the oral hearing before the Court of Appeal. The Lord Chief Justice had the benefit of the full and well drafted submissions to which I have already made reference. I do not believe that an oral hearing could have provided anything which would have influenced the Lord Chief Justice to come to a different conclusion."
"24. The applicant complained of the procedure by which his tariff was set after considerable delay by the Secretary of State. He submitted that it was contrary to Article 6(1) for the decision to set the tariff to be taken by the executive in an administrative procedure and not by the judiciary. The decision by the tribunal for the purpose of this provision should be legally binding rather than purely advisory. The procedure was also fundamentally flawed as it failed to provide for a public hearing. It was irrelevant to that failure that his tariff had now expired."
"The Court would observe that the sentencing exercise carried out in criminal cases 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."
Did Dudson waive the right to an oral hearing?
"Before I make a recommendation to the Home Secretary, in both new and existing cases, I shall invite written representations from the detainee's legal advisors and also from the Director of Public Prosecutions who may include representations on behalf of victims' families . I will announce my reasons in open court after taking into account any written representations I receive".
The Claimant's original detailed written submissions, of 11 August 2000, in its final paragraph, having contended that the tariff should be reduced to 12 years, submitted that the Claimant should be afforded an oral hearing of his case under the requirements of Article 6 if his submissions that a 12 year tariff was appropriate were not to be accepted. The submissions asserted that the tariff fixing process was a sentencing exercise attracting the safeguards of Article 6 and concluded:
" in the event that Mr Dudson's tariff is not fixed at 12 years and he is not afforded an oral hearing we reserve the right to challenge the procedural aspects of this matter ."
On the 2nd July 2001 the solicitors wrote again expressing concern that there had been no decision for nearly a year and concluding:
"We would therefore be grateful for your confirmation that our concerns will be conveyed to the Lord Chief Justice and that a decision will be forthcoming imminently. If we do not hear from you in the next 21 days we reserve the right to issue proceedings requiring a decision to be made without further notice".
On 14th August 2001 the Claimant was sent a large amount of material which included prison reports and victim's family statements. The memorandum covering these documents stated:
"Any comments that you or your legal representatives may have on the material from the CPS, the attached prison reports or the new report referred to above must be sent to me within 2 months of date below. If no representations are received by that date your case will be referred to the Lord Chief Justice without further reference".
On the 9th November 2001 the Claimant's solicitors sent their further tariff representation in written form dealing with the effect of the material that had been sent, suggesting the approach that should be taken to the family's statements, and enclosing further reports on the Claimant from the prison where he was then held. Representation and submissions were then based on that material and the submissions concluded with the sentence:
"We would submit that the suggested tariff period of 12 years as set out in the earlier representations is appropriate in this case".
Neither in these submissions nor in any other document did the claimant expressly withdraw or abandon his previous request for an oral hearing in the event that the Lord Chief Justice was not minded to reduce the tariff to the level suggested by him.
Did the Lord Chief Justice err when fixing Dudson's tariff?
"a. Any "provisional" tariff in the case of a s.53(1) prisoner must take into account the additional factor, uniquely applicable to such a sentence, namely the need for flexibility in the treatment of the child in order to vindicate the welfare principle. This requires the trial judge (and the LCJ in a transitional case) to set the lowest minimum tariff so as to ensure that at the earliest possible moment, compatible with the foreseeable requirements of welfare balanced against retribution/deterrence, the case comes under the consideration of the Parole Board who can balance the relevant factors including the development and progress of the child.
b. It is accepted that when setting the provisional tariff at the lowest minimum level, the trial judge can only take into account reasonably foreseeable welfare considerations (e.g. a concern about the potentially damaging effects of exposure to the YOI system or the adult prison estate).
c. in the case of the Lord Chief Justice's task of re-determining tariffs in the light of V v UK, the obligation to set a tariff at the lowest minimum level can not logically be affected by the fact that the vast majority of prisoners who benefit from this re-determination will be above the age when further, exceptional progress can be reasonably be foreseen and anticipated. In effect, the Lord Chief Justice is re-exercising the discretion that should have been exercised at the time of the original sentence, though he may take account of actual progress that has occurred since then
d. Because the judicially fixed, provisional tariff cannot take account of unforeseeable future events (e.g. future progress or development) the requirement of flexibility in the treatment of s.53(1) prisoners requires also that there be a mechanism for continuing review of all such individuals so that, in an appropriate case, a provisional tariff may be reduced to reflect an appropriate re-balancing of the welfare requirement against the requirements of retribution and deterrence.
e. Unless and until fresh legislation is in place, the Secretary of State must, at the very least, ensure that each s.53(1) prisoner is subject to continuing review of the appropriate length of his/her detention during the judicially set provisional tariff period.
f. It is recognised that, in the long term, the exercise of continuing review should attract the guarantees of Articles 5(4) and 6(1) and thus that it must be conducted by an independent and impartial body."
"Although I do not question the tariff which was set, Dudson has made significant progress in detention and it is possible to recognise this by reducing the tariff to 16 years."
It is upon this last statement that Mr Owen bases his contention that the Lord Chief Justice took as his starting point the original tariff.
"Mr Owen's starting point, and certainly that of his instructing solicitors, is that in 1993 Potts J, the then Lord Chief Justice and the Secretary of State all erred because when setting the claimant's tariff at 18 years they failed to have regard for the welfare of the offender as required by section 44(1) of the 1993 Act. We see no evidence of any such oversight. The sentencing judge said that he took the view that there was nothing to choose between the other co-accused and continued " Dudson, much younger, was corrupted by the others but played an active part in the torture and killing". No credit could be given for a plea, all of the defendants took drugs, and the trial judge concluded: " this case was so appalling as to require severe sentences to meet the requirements of retribution and deterrence." Against that background it seems to us that the fact the trial judge recommended a tariff of 18 years for the 17 ½ year old claimant as compared with the tariffs of 25 years which he recommended for the co-accused shows that he gave considerable weight to the claimant's youth and his welfare, as well as to the corruption to which he referred. "
"The welfare needs of the offender would also come into the equation, and would be of particular importance for those offenders who were only just above the age of criminal responsibility."
"It has been suggested that in these circumstances section 44(1) of the 1933 Act requires judges to fix the lowest possible minimum term so as to ensure the Parole Board will consider the case at the correct time if a child happens to make exceptional progress. It is recommended that this suggestion is not followed although it is appreciated that the Home Secretary's view means that apparently exceptional progress by a child while in detention will not influence the date his case is considered by the Parole Board."
"The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time."
This requirement is a further relevant consideration if legislative changes are to be considered.
(Case No C3/03/2125)