England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st November 2003

Lord Justice Kennedy:

1. This is an application by a serving prisoner for judicial review of the decision of the Secretary of State to set his minimum term at 16 years. The judgment is the judgment of the Court, to which both members of the court have contributed.

Factual background.

2. The claimant was born on 25^th July 1976, so he is now 27 years of age. On 17^th December 1993, at Manchester Crown Court, he was convicted of murder and was sentenced to be detained during Her Majesty's pleasure, pursuant to section 53(1) of the Children and Young Persons Act 1933. The offence had been committed in December 1992 when he was 16 years of age. Together with adult co-defendants he imprisoned and tortured a young woman named Suzanne Capper, aged 16, over a period of a week and then set alight to her body, so that she sustained burns from which on 14^th December 1992 she died. The trial judge, Potts J, said that the case was "unique in his experience" and he recommended a tariff of 18 years for the claimant and 25 years for his adult co-defendants. That was supported by the then Lord Chief Justice, and was implemented by the Secretary of State. That tariff, or minimum term, was subsequently re-set at 16 years by the Secretary of State on 20^th March 2002, in accordance with a decision of the present Lord Chief Justice made on 29^th January 2002, and it is that re-set tariff which is challenged in these proceedings.

Grounds of Challenge.

3. Mr Tim Owen QC for the claimant puts forward two grounds of challenge. First he submits that the conclusion reached by the Lord Chief Justice in January 2002 was unlawful because it failed properly to reflect the continuing obligation to have regard to the welfare of the offender, and, secondly, he submits that the procedure was flawed because the claimant's advisers were not given the opportunity to make oral submissions to the Lord Chief Justice. Those grounds of challenge were developed by Mr Owen in the context of the way in which the law has developed over the past decade, and we adopt his approach even though it means looking again at some of the material which was considered in the judgment in R (Smith) v Secretary of State for the Home Department [2003] 1 WLR 2176. If that approach is adopted it explains also why the claimant's minimum term was re-set in 2002.

The developing law.

4. Prior to 1993 when a young person convicted of murder was sentenced pursuant to section 53(1) to be detained during Her Majesty's Pleasure the Secretary of State determined the actual length of sentence by reference to the offender's progress, but in practice soon after the sentence was passed the Secretary of State set a tariff which was intended to indicate the minimum period of detention required to be served to punish the offender and deter others before his or her case could properly be referred to the Parole Board to consider the possibility of release. The sentencing judge offered advice as to the tariff, his advice was considered by the Lord Chief Justice, and then passed on to the Secretary of State.
5. Even after the tariff had been set it was, prior to 1993, the practice of the Secretary of State to keep the sentences imposed on young offenders under periodic review, which enabled him to take account of any exceptional progress that might be made. On 27^th July 1993 the Secretary of State, in a statement to Parliament, adopted a more restrictive position. Once the tariff period was set an alteration to it would only be considered if matters were raised which were relevant to the circumstances of the crime or the applicant's state of mind when the offence was committed. That change of policy was challenged in the courts, and the House of Lords in R v Home Secretary ex parte Venables [1998] AC 407 held by a majority that the change of policy was unlawful because the resultant policy was insufficiently flexible. It did not allow for exceptional progress, and the Secretary of State, like the sentencing judge, was bound by section 44 of the 1933 Act to have regard to the welfare of the child or young person. At 498 F Lord Browne-Wilkinson said of a sentence imposed under section 53(1) -

"The Secretary of State is not dealing with a sentence of the same kind as the mandatory life sentence imposed on an adult murderer, the duration of which is determined by the sentence of the court and is for life. In cases of detention during Her Majesty's pleasure the duty of the Secretary of State is to decide how long that detention is to last, not to determine whether or not to release prematurely a person on whom the sentence of the court is life imprisonment."

At 499 H Lord Browne-Wilkinson, having referred to section 44, and the United Nations Convention on the Rights of the Child said that -

"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."

In other words the Secretary of State could set a provisional tariff, but it had to remain reviewable. Of course as Mr Owen points out, when reading the speech of Lord Browne-Wilkinson it is important to recognise that there was at that time no issue as to the authority of the Secretary of State to set the tariff and in appropriate circumstances to review it. That issue was considered later in the European Court of Human Rights. Lord Browne-Wilkinson recognised that it was anomalous that a murderer sentenced pursuant to section 53(1) had a right to have his sentence kept under review whereas a young offender given a fixed term sentence whatever its length, or an indeterminate sentence pursuant to section 53(2), had no such right, but he said at 502 E that when setting a tariff in relation to a non-reviewable indeterminate sentence the sentencing judge "must take into account the need for flexibility and 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." Mr Owen invites us to have particular regard to that reference to "the minimum tariff". It does he submits, indicate that anyone setting a tariff should assume the greatest possible progress by the offender in custody when the offender is a child or young person. If, as was decided in Smith, when a sentence is imposed under section 53(1) there is an obligation to keep the tariff period under review then, Mr Owen submits, that review cannot be carried out by the Secretary of State. It must be carried out by judicial authority, either the trial judge or the Lord Chief Justice. That is a difficulty that was not apparently raised in the case of Smith. Mr Owen also invited our attention to passages in the speech of Lord Hope in Venables which, he submits, support the submission that the trial judge must allow for the welfare and for the future welfare of any offender who is a child or young person in the way for which Mr Owen contends. In my judgment those passages do no more than emphasise the need for the Secretary of State "to keep the protection and welfare of the child under review throughout the period while he is in custody" (532 D).

6. On 10^th November 1997 Mr Jack Straw as Home Secretary made a statement to Parliament which set out how he intended to give effect of the decision of the House of Lords in Venables. In that statement he made it clear that he intended to continue to set provisional tariffs for those sentenced under section 53(1), but they could be altered "where the balance between the public interest in punishment on the one hand and the public interest in the offender's welfare on the other has clearly shifted so as to justify a reduction." The statement went on to say that annual reports would be provided on all those whose tariff had yet to expire, and after half of the initial tariff period had expired a fuller ministerial review would take place.
7. Then in December 1999 the European Court of Human Rights gave its decision in T and V v UK [2000] 30 EHRR 121. It stated that the fixing of the tariff amounts to a sentencing exercise, to which Article 6(1) of the European Convention on Human Rights applies, and that the requirements of Article 6(1) were not met because the Home Secretary, who set the initial tariff, was not independent of the executive (see paragraph 114). It was contended that for a young offender who could be expected to develop only a short sentence could be compatible with Article 5(4), but the European Court declined to pronounce upon the appropriate length of the sentence, and noted at paragraph 119 that where a fixed sentence of imprisonment is imposed for a criminal offence for the purposes of punishment "the supervision required by Article 5(4) is incorporated in that court decision." As no new tariff had been set after the decision by the House of Lords it was said at paragraph 122 that-

"It follows that the applicant has been deprived since his conviction in November 1993 of the opportunity to have the lawfulness of his detention reviewed by a judicial body in accordance with Article 5(4)."

As Mr Owen points out, it does not seem to have been argued that Article 5(4) could be relied upon to require an assessment of the welfare needs of the offender, especially if those needs had not been addressed when the initial tariff was fixed.

8. On 13^th March 2000 Mr Straw as Home Secretary made a further statement to Parliament in which he set out the government's response to the decision of the European Court. There were then about 250 people sentenced as juveniles and detained during Her Majesty's pleasure in respect of whom it was proposed that new tariffs would be set by the Secretary of State in line with the recommendations of the Lord Chief Justice, to whom representations could be addressed. The statement did not address the question of whether any further review would be possible after a tariff had been re-set.
9. On 31^st May 2000 the Secretary of State wrote to the claimant's solicitor inviting representations in relation to his 18 year tariff. With the letter was sent a copy of the statement of 13^th March 2000, and a memorandum paragraph 7 of which reads –

"If you make representations, your case will be considered afresh by the Lord Chief Justice in the light of those representations. He will have regard, among other things, to: the trial judge's report, your age at the time of the offence, the need to have regard to your welfare and development, the terms of the ECHR judgment in T and V, and to the fact that HMP tariffs will no longer be open to automatic, periodic review. The Lord Chief Justice may also wish to consider representations from the Crown Prosecution Service on behalf of the victim's family or otherwise. If such representations are made, you will have an opportunity to see and comment on them. After considering all the representations, the Lord Chief Justice will recommend the tariff he considers appropriate and the Secretary of State will then set your tariff at this level and notify you of the outcome. You can still then, if you wish, make written representations to the Secretary of State as to why your tariff should be lower than the one that results from the consideration of your representations by the Lord Chief Justice."

Three things are worth noting in relation to that paragraph. First, as pointed out by Mr David Pannick QC for the Secretary of State, it envisaged a completely fresh tariff-setting exercise being undertaken by the Lord Chief Justice. Secondly, it made it clear that tariffs would no longer be open to periodic review, but, thirdly, and somewhat surprisingly, having spelt out clearly how a tariff not open to further review would be set, it, by its final sentence offered the possibility of representations leading to a further reduction.

10. On 27^th July 2000 the Lord Chief Justice issued a Practice Statement as to how he proposed to approach his task of setting tariffs in relation to existing and future cases. It was proposed that in due course tariffs for those under the age of 18 would be set by the trial judge in open court, and that was brought into effect by section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 with effect from 30^th November 2000. But as to existing cases like that of the present claimant the Lord Chief Justice said at [2000] 1 WLR 1656 B -

"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."

The Lord Chief Justice's statement goes on to indicate his approach to tariff-setting, including aggravating and mitigating features, and concludes at 1656 G -

"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."

As Mr Philip Sales for the Lord Chief Justice points out, the procedure set out in the Practice Statement was clearly not one which on the face of it allowed for oral submissions being made by anyone, and of course the Practice Statement made no reference to any possibility of continuing review.

11. On 11^th August 2000 the claimant's solicitors made representations to the Secretary of State which they asked to be considered together with the representations made after conviction. In paragraph 2.4 they said -

"In light of the current procedures outlined in the Parliamentary statement of 13^th March 2000 whereby persons subject to detention under section 53(1) of the Children and Young Persons Act do not have their sentences periodically reviewed with a view to assessing whether the tariff is still appropriate, it is submitted that the tariff should be reduced substantially to give effect to the requirement of flexibility which is inherent in the sentence."

They then referred to the speech of Lord Browne-Wilkinson in Venables, to the decision of this court in R v Home Secretary ex parte Furber [1998] 1 All E R 23, and to Article 37b of the United Nations Convention in support of the proposition that the tariff should be set at the shortest possible period, but at paragraph 3.3 they said –

"It is accepted that there are two ways in which the required welfare principle and necessary flexibility may be built into the tariff period. These may either be by way of periodic review or by way of reduction in the tariff period which would otherwise be appropriate."

Mr Pannick submits that if Smith has been rightly decided then the Secretary of State is committed to the first of those alternatives. In their conclusions the claimant's solicitors contended that the original sentence was set "with no regard to the welfare principle". They submitted in paragraph 5.3 that the tariff –

"Should be set at the lowest possible length of time in any event and that it is appropriate to allow a substantial discount in tariff to compensate for the lack of periodic review."

A figure of 12 years was suggested "so as to allow for his case to be reviewed by the Parole Board in December 2001", and in paragraph 5.5 the solicitors said –

"If it is not accepted that a tariff of 12 years is appropriate in the present case, it is submitted that Mr Dudson should be afforded an oral hearing of his case under the requirements of Article 6 of the European Convention on Human Rights."

It is perhaps significant that the solicitor's representations make no reference at all to the Practice Statement which had been issued about two weeks earlier.

12. Early in 2001 there was an exchange of correspondence between the Lord Chief Justice and the Home Secretary which touched on the question of the need for periodic reviews after a tariff was set. The Secretary of State eschewed the possibility of such reviews, saying that in relation to past cases –

"We have been careful to provide detainees with an opportunity to make representations to you as to why their tariff should be lower than was originally recommended by the Lord Chief Justice, to whom there was no right to make representations. In considering these I understand that you will have regard to, amongst other things, the offender's development and welfare and to the fact that there will be no further automatic reviews and recommend a tariff accordingly."

13. On 27^th July 2001 the claimant's solicitors wrote to the Secretary of State complaining that no decision had yet been made in respect of the claimant's tariff, and said that they would be grateful if their concerns could be conveyed to the Lord Chief Justice in the hope that "a decision will be forthcoming imminently". There was no further request for an oral hearing, but of course they had never sought such a hearing if the tariff was to be set at 12 years.
14. On 14^th August 2001 the claimant's solicitors were supplied with material from the Crown Prosecution Service, including statements from the family of the victim. On 9^th November 2001, in response to the statements from the victim's family, the claimant's solicitors made further written representations as to tariff which they asked to be considered by the Lord Chief Justice together with their earlier representations, and in particular those submitted in August 2000. They referred to additional reports obtained from the prison and probation services, and maintained their submission that a tariff of 12 years would be appropriate. Nothing was said about the possibility of an oral hearing, and on 13^th November 2001 the Secretary of State acknowledged receipt of the further representations, saying –

"The Lord Chief Justice will give full consideration to the case as soon as possible and you will, of course, be informed of his decision in due course."

On 29^th January 2002 in open court the Lord Chief Justice announced his decision as to the claimant's tariff, and his reasons for that decision. He referred to the circumstances of the offence, the post-conviction behaviour of the claimant, the written representations of his solicitors, the views of the deceased's family and concluded –

"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."

Mr Owen submits that in that sentence the Lord Chief Justice can be seen to have erred because he took as a starting point the tariff set by the trial judge which did not have any regard to the welfare of the offender, and certainly was not set on the basis that there would be no future review. Mr Pannick and Mr Sales submit that there is no detectable error. The Lord Chief Justice was simply recognising and commenting upon the situation which he knew to exist, and he used the word "reducing" because that was the effect of his decision, but there is nothing to indicate that in making a fresh decision he took the wrong starting point. In our judgment that is right. Mr Owen seeks to make too much of the words used.

15. The claimant was formally notified in writing of the decision of the Lord Chief Justice on 20^th March 2002. On 28^th March 2002 his solicitors acknowledged receipt of the letter of 20^th March 2002, but said that they remained concerned that -

"The procedural issues identified in the representations submitted to the Lord Chief Justice through your department have not been addressed by either the Lord Chief Justice or the Secretary of State."

They then set out their concerns in detail. In essence they complained that insufficient attention had been paid to the claimant's welfare, and sought a further reduction in the minimum term, but nothing was said about having been deprived of the opportunity to make oral submissions, nor was that point made in subsequent letters written by the claimant's solicitors prior to the commencement of these proceedings in September 2002.

After the tariff was re-set.

16. In April 2002 the Sentencing Advisory Panel gave advice to the Court of Appeal on minimum terms in murder cases, including those relating to young offenders. The Panel referred in paragraph 38 to the requirements of section 44(1) of the 1933 Act requiring the sentencer to take the young offender's welfare into account. The Panel observed in paragraph 39 that "once young offenders reach a point in their sentence when they can safely be released the possibility of release should not be unnecessarily delayed by a long minimum term." In paragraph 40 the Panel noted the disappearance of periodic reviews, and commented that "the welfare of the young offender is now less well served than it was before."
17. When making its recommendation as to the length of the minimum term for young offenders the Panel said in paragraph 46 –

"The judge should start from the middle starting point appropriate for an adult (as we propose, 12 years), and then reduce that starting point by one year for each year of the offender's age below 18. This would provide a starting point of ten years for a 16 year old, 8 years for a 14 year old, 6 years for a 12 year old and 4 years for a 10 year old. Then the sentencer would take into account the specific aggravating and mitigating factors in the particular case, which would take the prescribed minimum term above or below the starting point."

18. On 31^st May 2002 the Lord Chief Justice in a Practice Statement [2002] 1 WLR 1789 gave effect to the recommendations of the Sentencing Advisory Panel. In paragraph 26 the Lord Chief Justice referred to the Lord Browne-Wilkinson's observation in Venables that where there is exceptional progress on the part of the young offender 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. The Lord Chief Justice continued in paragraph 27 -

"The Home Secretary does not consider that this statement as to his responsibility is relevant now that the minimum term is set by the trial judge. The trial judge can only act on the information before him in taking into account the welfare of the child at the time that he announces the minimum term. 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."

That, Mr Owen submits, exposes the gap. If, when setting the claimant's minimum term, the Lord Chief Justice acted in accordance with his own later Practice Statement he made no allowance for the possibility of exceptional progress. Even though the claimant was 25½ years of age when the minimum term was re-set, there should have been allowance for that possibility.

R (Smith) v Home Secretary.

19. Maria Smith's application for judicial review came before this court on 24^th March 2003, and judgment was handed down on 3^rd April 2003. She too had been sentenced pursuant to section 53(1) of the 1933 Act, and her tariff was set at 15 years. On 13^th April 1999, following the decision in Vanables, the Secretary of State re-fixed her tariff at 13 years. When that tariff was re-considered by the Lord Chief Justice in November 2001 he found no reason to reduce it, and the Secretary of State said that he was not prepared to undertake any further review. The claim then brought challenged the transitional policy, submitting that the Secretary of State could not abdicate his discretion to consider a reduction of any period recommended by the judiciary. The court agreed with that submission, holding that section 28(4) of the Crime (Sentences) Act 1997 required the Secretary of State to keep open the possibility of a further review, that being the section which requires the Secretary of State to direct, and when appropriate to re-direct, what the minimum period shall be. The present claimant was an Interested Party when the case of Smith was heard, and although Mr Southey, who still acts as junior counsel for the claimant, was unable to attend the hearing he provided two notes to which the court had regard (see paragraph 22 of the judgment). An appeal by the Secretary of State against the decision of this court in Smith is due to be heard by the Court of Appeal early next month, but at present the decision of this court represents the law.

The Welfare submission.

20. 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 1933 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 17½ 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. When pressed to say what he meant by welfare Mr Owen submitted that it was not restricted to good behaviour in prison, but covered also the process of coming to maturity and the negative impact which a prison environment could have upon a young offender. In our judgment the original tariff allowed for all of that, but what it did not allow for was exceptional progress of a kind which at that stage could not be foreseen. As Mr Pannick submitted, it is not a judicial function to take account of the unforeseeable.
21. Moving on to the decision of the present Lord Chief Justice, it seems to us to be clear that he considered the question of tariff afresh, in the light of the representations made by the claimant's solicitors and in the light of the representations made by the relatives of the deceased. Plainly he gave the claimant credit for the progress he had made in prison, and we accept that it is reasonable to infer that no allowance was made for the possibility of exceptional and unforeseeable progress by a 25½ year old man who had already been in custody for 9 years. How in reality that possibility could have been allowed for if it were necessary for the Lord Chief Justice to allow for it we do not need to decide, because if Smith has been correctly decided exceptional and unforeseeable progress will be catered for. We accept, as does Mr Pannick, that it may be necessary to involve a judicial body in any further review (although Mr Pannick reserved his position as to that), and that may even require legislation, but if there are difficulties in implementing the decision in Smith that is no reason to conclude that in this case the Lord Chief Justice failed to take into account a matter to which he should have had regard. In our judgment Mr Pannick is right to contend that at the end of the day Mr Owen's first ground of challenge really depends on the decision of the Court of Appeal in Smith. As the law stands at present the ground of challenge has no prospects of success. In this particular case Mr Sales may be right in his submission that even if the appeal of the Secretary of state in Smith were to be upheld it would make no difference because the prospect of further exceptional progress in the case of this claimant is so remote, but as to that it is unnecessary to reach a final conclusion.

Can the decision of the Lord Chief Justice be Judicially Reviewed?

22. If we are right in our conclusion in relation to the welfare submission the interest of the Secretary of State in these proceedings is considerably diminished, but Mr Pannick contends that in any event both of the claimant's grounds of challenge should not be addressed to the Secretary of State. They should be addressed to the Lord Chief Justice, whose recommendation as to the appropriate minimum terms the Secretary of State had committed himself to follow. That raises the question of whether either the procedure adopted by the Lord Chief Justice in relation to this claimant, which did not in the end result in any submission being made orally, or the decision made by the Lord Chief Justice on 29^th January 2002 are susceptible to judicial review.
23. Mr Pannick accepts that in transitional cases, such as this, the Secretary of State fixes the tariff in accordance with the advice of the Lord Chief Justice, but the Secretary of State has left it to the Lord Chief Justice to decide how he equips himself to give the advice, and the Secretary of State has committed himself to accept the advice in order to avoid a possible breach of Article 6 of the European Convention. That, Mr Pannick submits, gives rise to a unique situation. If the Lord Chief Justice were acting as a judge of the Supreme Court he would not be reviewable, but he is not so acting. His role has not been assigned to him by statute, and his decision gives rise to no right of appeal, but in practice it is conclusive. As the Lord Chief Justice is the effective decision-maker he should be capable of being called upon to explain the decision he has taken.
24. As Mr Sales points out, it is not unusual for this court to consider applications for judicial review without the actual decision-maker being before the court. Many cases which arise from decisions of magistrates' courts or coroner's courts fall into that category, and in relation to all of the matters we have to consider the documentary material including the decision of the Lord Chief Justice of 29^th January 2002 speaks for itself.
25. In Furber (supra) which was decided in this court in June 1997 Simon Brown LJ said at 27f of the role of the Lord Chief Justice in relation to tariffs –

"The Lord Chief Justice in this context is acting not as an unreviewable judge of the High Court but rather as an adviser in an administrative process crystallizing in a reviewable ministerial decision."

That well have been right in June 1997, a couple of weeks after Venables had been decided by the House of Lords, but by February 2001, when this court gave judgment in R (Bulger) v Secretary of State [2001] 3 All E R 449 there had been some changes. On 26^th October 2000, after the decision in Strasbourg in December 1999, the Lord Chief Justice had given his decision as to the revised tariffs which he considered would be appropriate in the cases of V and T. That decision was adopted and acted upon by the Secretary of State, and the father of the victim of V and T then sought permission to apply for judicial review to challenge the tariff set by the Secretary of State. It was held that he had no standing, but the question was raised as to whether the decision of the Lord Chief Justice was susceptible to judicial review. As Rose LJ pointed out, such review has never been possible in relation to the decisions of High Court judges sitting as such even when not actually sitting in court (e.g. giving leave to prefer a voluntary Bill of Indictment), and Mr Sales for the Lord Chief Justice submitted that when making a tariff recommendation in October 2000 the Lord Chief Justice had been sitting as a High Court Judge -

"He is not acting merely in a private or advisory capacity, but, in accordance with the European Court's judgment in V v UK, as an independent and impartial judicial figure, sitting in open court as a judge and giving his reasons for complying with the Article 6 rights of Thompson and Venables."

In response to what had been said in Furber Mr Sales submitted that at that time the Lord Chief Justice had only been acting "in an advisory capacity to the Home Secretary and not, as he is now, as a judge in a primary decision-making capacity." Rose LJ at 454e paragraph17 said that he saw much force in Mr Sales' submission (a submission which he repeated to us) but in Bulger no ruling was made because the case was decided on other grounds. Rose LJ did however add at 454f that in any event the question of the reviewability of the decision of the Lord Chief Justice was academic "because the Secretary of State has adopted that decision, and the Secretary of State's decision is undoubtedly susceptible to judicial review."

26. Counsel for Mr Bulger had been critical of the Secretary of State for fettering his discretion by agreeing to accept the view on tariff of the Lord Chief Justice. Rose LJ rejected that criticism, saying at 461b paragraph 47 -

"The interim scheme put in place by the Secretary of State was an entirely appropriate response to the decision of the European Court. In agreeing to follow Lord Woolf CJ he was recognising that the decision on tariff for juveniles must be made judicially and not by the executive. There is nothing to my mind in section 28(4) of the Crime (Sentences) Act 1997 to preclude such a course, and the Secretary of State was obliged under the Human Rights Act 1998 to carry out his duties in compliance with the Convention."

In our judgment whatever may have been the position in 1997 the role which the Lord Chief Justice agreed to play in the exercise of re-setting tariffs which the Home Secretary announced on 13^th March 2000 was a judicial role, even though it did not result in a decision which could be tested on appeal and even though in fact the tariff was not re-set until the Secretary of State accepted and acted upon the decision of the Lord Chief Justice.

The entitlement to an oral hearing

27. Article 6.1. of the European Convention of Human Rights states:-

"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…."

The Claimant argues that he was on the facts of this case entitled to an oral hearing before the Lord Chief Justice prior to his making the tariff decision. This argument was deployed in the Court of Appeal in the domestic hearing of R v Secretary of State for the Home Department ex parte Ronald Leonard Easterbrook (unreported) 22^nd March 1999 FC3 99/5365/4. In that case a prisoner subject to discretionary life sentence argued that as the Lord Chief Justice, in advising the Secretary of State on his tariff, was performing an act equivalent to an act of sentencing the appropriate course was to allow him to make oral submissions before that determination was made. Giving the judgment of the Court Lord Woolf MR, as he then was, said he was quite satisfied that there was no substance in these submissions. He stated:-

"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 an opportunity of advancing oral submissions before the Judge as to matters that 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…… I do not consider anything would have been achieved in this case by an oral hearing".

28. This case was considered by the third section of the European Court of Human Rights in Easterbrook v The United Kingdom 480 15/99. The Court found there had been a violation of Article 6.1 regarding the procedure adopted in fixing the applicant's tariff, saying at paragraph 28 -

"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 principal relating the separation of powers that the member of the executive who issued the decision was guided by judicial opinion".

29. In our judgment it is the failure to observe the separation of powers that lay at the heart of the Court's decision rather than the absence of a further adversarial hearing. This judgment cannot be taken as an authority for the proposition that in every case where a tariff-fixing exercise is carried out such a hearing must take place. We do not read anything in it as critical of that section of the domestic decision which we have set out immediately above, which was not to the effect that such a hearing would never be required on order to comply with Article 6.1 but rather that on the facts involved in that case it was not required.
30. On behalf of the Lord Chief Justice our attention was drawn to two other European decisions. Goc v Turkey 36590/97, was a decision of the Grand Chamber, which divided 9:8 in favour of the applicant's claim that the denial of an oral hearing in his case breached Article 6. The basis on which the majority so found was that an integral part of the applicant's case was that during the three days he was wrongfully held in police custody he was ill treated, endured personal suffering and harm and that;

"He was never given the opportunity to explain orally to a court in the context of an adversarial procedure the injustice which had been done to him and his family. According to the applicant had he been given the opportunity to state his case to the domestic courts they would have been persuaded of the reality of the suffering which he and his family endured and of the harm caused to his reputation".

This decision therefore seems to us to underline the need to examine closely the nature of the proceedings under consideration before deciding whether Article 6 necessarily involves a right to such a hearing.

31. The other decision is Botten v Norway [2001] 32 EHRR 3. This case directly concerned the exercise of sentencing powers, and stressed that when considering the appellate process in relation to sentencing, the implications of Article 6 depended on the special features of the proceedings involved, taking account of the entirety of the proceedings and the role of the particular appellate court. There the lower court had held a public hearing during which it had taken evidence from the applicant and other witnesses. The appellate court had held a public oral hearing at which the applicant was represented but at which he gave no evidence. That was held not, on its own, to infringe Article 6. The Court expressed itself in these terms:

"….it is necessary to examine whether in the light of the Supreme Court's role and the nature of the issues to be decided by that court there has been a violation in the particular circumstances of the case. In carrying out this examination, the Court will confine itself to consider whether the proceedings in the present case were fair….".

Having scrutinised the jurisdiction and procedures of the Appellate Court the conclusion of the European Court was that there was no breach of Article 6 merely by virtue of the Appellate Court having the power to determine the appeal without hearing the applicant in person, although there was a breach of Article 6 found in the case on its particular facts.

The Claimant relied on the judgment of Lord Reed in V v UK at paragraph 200, to show that Article 6.1 is applicable to the fixing of the tariff, and on Colozza v Italy [1987] 7 EHRR 516. We have derived no assistance from the latter decision, based as it was on a consideration of a case where the applicant had been tried and convicted in his absence, and therefore turning on a consideration of the extent of the right of a defendant to criminal charges to be present at his own trial. That as it seems to us is a very different question from that which we have to consider.

32. From these authorities therefore we deduce the principle that Article 6.1 may require an appellate court conducting an appeal against a sentence to afford the appellant an oral hearing, and perhaps occasionally to give or lead evidence at that hearing, if on the facts of his case and the issues arising in it such a step is necessary to ensure that the procedure is fair.
33. On the facts of this case we see no such need. The original submissions made in writing on behalf of the Claimant ran to 7 pages, and were closely argued and cogent. After the Claimant had been sent the fresh material which the Lord Chief Justice was proposing to consider as part of his tariff-setting exercise, this material running to nearly 100 pages, further detailed submissions were sent, described as "further tariff representations", drafted by the solicitors. They stated that the Claimant did not wish to make any further personal comment on the results of the victims' charter enquiries but pointed out the limited role of the victims in determining the length of tariff. They enclosed further and more up to date reports prepared on the Claimant by the prison staff. They pointed out the positive features of that further evidence from a tariff viewpoint and ended by repeating the thrust of the earlier representations. It is not possible to identify any issue in this case which the determination of which would have been assisted by an oral hearing. The supplementary submissions are, in our judgment, a complete and careful statement of the case for the Claimant. In argument before us no point was identified as being one which was not heard, or one to which justice was not done, by reason of there having been no oral hearing. Mr Owen QC for the Claimant confines himself to saying that he does not have to be able to isolate such a point, rather that the purpose of an oral hearing is "symbolic…. a matter of basic justice". In our judgment the authorities do not support this proposition. An oral hearing will be appropriate only when it is of some utility in order to achieve fairness. That is not the case here, and we were not impressed by the argument that oral submissions might have encouraged the Lord Chief Justice to give greater weight to the written submissions he had already received.

Waiver of the right to an oral hearing

34. If, contrary to our finding in the preceding section of this judgment, there was in the circumstances of this Claimant's case a right for him to make direct oral representations to the Lord Chief Justice a separate issue arises, which we must address in this Judgment, as to whether he waived that right. That such a right is capable of being waived is suggested by the authors of "Human Rights: The 1998 Act and the European Convention" (Grosz, Beatson and Duffy) page 252, paragraph C6-79. In considering exceptions to the general rule under Article 6 that hearings should be public the authors concluded:

"..the court has also upheld practices of routinely holding certain types of proceedings in private, on the basis of the express or tacit consent of the parties concerned. Although such waiver should be unequivocal, the Court has not applied very strict criteria to determine what constitutes unequivocal waiver. Thus where an applicant knew that in practice a particular tribunal held its hearings in private, the Court found that failure to request a public hearing could reasonably be considered to amount to an equivocal waiver".

35. The authorities cited for that proposition are Zumtobel v Austria [1994] 17 EHRR 116 and Rolf Gustafson v Sweden [1997] 25 EHRR 623.
36. The parties here are in agreement as to the test which should be applied to such an issue namely whether it appears, when viewed objectively by the Court, that the Claimant, having a right to an oral hearing, is continuing to assert and maintain his claim to exercise that right or not. The Claimant argues, we believe correctly, that it must be shown on a clear and unequivocal basis that the Claimant was effectively abandoning the right that he had.
37. On the 27^th July 2000 in his first Practice Statement the Lord Chief Justice made his procedures plain. He said:

"Before I make a recommendation to the Home Secretary, in both new and existing cases, I shall invite written representations from the detainees' 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 in their 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 submission that a 12 year tariff was appropriate was not to be accepted; he argued 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…." (original emphasis).

38. On the 2^nd 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".

39. On 14^th August 2001 the Claimant was sent a large amount of material to which we have made reference above. It 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". (original emphases)

40. As we have stated earlier in this judgment, on the 9^th November 2001 the Claimant's solicitors sent their further tariff representations 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. Representations 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".

On behalf of the claimant it has been emphasised that neither in these submissions nor in any other document does the claimant expressly withdraw or abandon his previous request for an oral hearing in the event that the Lord Chief Justice is not minded to reduce the tariff to the level suggested by him.

41. In our judgment, however, the correspondence as it developed, as we have set out above, does indicate that the Claimant was not maintaining and did abandon his originally stated aim of achieving an oral hearing unless his own tariff figure was adopted. In our judgment the letter of 2^nd July 2001 can only be read as an invitation to the Lord Chief Justice to make his decision very quickly, within a matter of weeks if not days. That is entirely incompatible with an oral hearing. Nowhere in this or any letter do the solicitors seek the fixing of the date for such a hearing which, as they would well know, would have taken some time to obtain. Again, when on behalf of the Lord Chief Justice further submissions were invited on the new material which accompanied the letter of 14^th August 2001 it was plain that what was being envisaged there were further written representations. At no stage did the Claimant reply stating that he preferred to deal with this new material at an oral hearing; as already noted his eventual response is detailed and to the point and was plainly in our judgment intended to be his last word on the subject.
42. If therefore there was, contrary to our earlier view, a right on the facts of this case to an oral hearing it was effectively waived or abandoned by the Claimant by reason of the matters we have set out above.

Conclusion.

43. For the reasons we have given this claim fails and this application for judicial review is dismissed.
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LORD JUSTICE MACKAY: For the reasons set out in the judgment of the court, which has been handed down, this claim will be dismissed.

The order will be as agreed: that the claimant do pay the first defendant's costs on the standard basis, to be subject to a detailed assessment if not agreed, and to be determined under the Access to Justice Act 1999, not to be enforced without the permission of the court.

Next, that there be no order as to costs in respect of the second defendant's costs, the claimant's costs to be the subject of detailed community legal service assessment.

The claimant having given an indication that he would wish to appeal, we grant permission to appeal. We order that the appeal be listed with the appeal of Smith to be heard on or about 1st December 2003.

We further order that the appellant's notice of the skeleton argument for use in the Court of Appeal is served by close of business on Tuesday next, 25th November 2003, and finally we order that the respondent's notice or notices and any skeleton arguments to be used by the respondents are served by close of business on Friday 28th November 2003.

Then, so far as it is necessary to do so, we grant liberty to apply.