London, WC2A 2LL
B e f o r e :
MR JUSTICE MACKAY
| The Queen on the application of Dudson
|- and -
|Secretary of State for the Home Department
The Lord Chief Justice
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)
David Pannick QC and Ms Kate Gallafent (instructed by Treasury Solicitors) for the Secretary of State
Philip Sales (instructed by Treasury Solicitors) for the Lord Chief Justice
Crown Copyright ©
Lord Justice Kennedy:
Grounds of Challenge.
The developing law.
"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).
"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.
"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.
"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.
"In light of the current procedures outlined in the Parliamentary statement of 13th 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  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.
"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."
"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 29th 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.
"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.
"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."
"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.
The Welfare submission.
Can the decision of the Lord Chief Justice be Judicially Reviewed?
"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  3 All E R 449 there had been some changes. On 26th 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."
"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 13th 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
"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) 22nd 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".
"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".
"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.
"….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  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.
Waiver of the right to an oral hearing
"..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".
"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).
"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".
"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)
"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.
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.