England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 November 2004

Lord Justice Thomas:

1. This is the judgment of the Court.

The background

2. On 10 April 2003 the claimant, then aged 22, was convicted of the murder on 31 July 2002 of Jade Hart, a child of 13½ months. The trial Judge, HH Judge Fabyn Evans, then heard oral representations from counsel as to the recommendation that he should make to the Home Secretary in respect of that part of the sentence of mandatory life imprisonment which was needed for punishment in the sense of retribution and deterrence (then known as the "tariff term"). Counsel, who represented the claimant, accepted in his oral submission to the court that the judge would be able to take account of the aggravating features from having heard the evidence; he drew to the Judge's attention, in mitigation, the fact that the list of the applicant's previous convictions was devoid of any offence of violence. After hearing the mitigation, the Judge then passed a sentence of mandatory life imprisonment, stating that he would not announce his recommendation on the tariff term, but that he would take into account the claimant's age, the fact that the victim was a very young child and the fact that, in his view, she had been sexually abused.
3. On 19 May 2003 the Judge made a written report in the form laid down by the Lord Chief Justice. It set out his findings as to the injuries that the child had received and made a recommendation to the Home Secretary that the claimant should serve a minimum term of 25 years as the tariff term.
4. On 25 November 2002 the House of Lords in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837 had decided that the fixing of the tariff term by the Home Secretary for those convicted of murder was part of the decision as to the sentence. A sentence was part of a trial for the purpose of a right to a fair hearing by an independent and impartial tribunal guaranteed under the provisions of Article 6 (1) of the European Convention on Human Rights (the Convention). It therefore followed that this judicial function should not be exercised by the Home Secretary, a member of the Executive branch of government.
5. Immediately after the decision, the Home Secretary stopped fixing tariffs for those sentenced to life imprisonment by a judge. Time was properly taken for consideration as to the procedure by which the tariff term should be fixed. In May 2003, the Home Secretary introduced an amendment to the Criminal Justice Bill then before Parliament to give effect to a procedure for the setting of the tariff term by the judiciary.
6. On 12 June 2003, in giving its judgment in Easterbrook v UK [2003] 37 EHHR 812 the European Court commented on the fixing of a tariff term by the Home Secretary in 1998 for a non mandatory life prisoner convicted in 1988:

"The Court would observe that the sentencing exercise must necessarily be carried out by an independent and impartial tribunal, namely a court offering guarantees and procedure of a judicial nature. It was not a court that fixed the applicant's tariff in a public, adversarial hearing and in the circumstances it is not sufficient to satisfy the fundamental principle relating to the separation of powers that the member of the executive who issued the decision was guided by judicial opinion. "

7. The amending provisions put forward by the Home Secretary were enacted by Chapter 7 of the Criminal Justice Act 2003 and Schedule 21 which were brought into force on 18 December 2003. Transitional provisions were contained in Schedule 22.
8. The transitional provisions applied to three categories of mandatory life prisoners.

i) Those sentenced before 18 December 2003 whose tariff had already been fixed and notified by the Home Secretary; there are currently about 1,830 such prisoners.

ii) Those, including the claimant, sentenced before 18 December 2003 whose tariff had not been fixed by the Home Secretary. There are currently about 710 such prisoners.

iii) Those sentenced after 18 December 2003 whose offences were committed before 18 December 2003.

This application is not concerned with those in the third category, as the tariff term (or, as it is designated in the Act, the minimum term) is set by the trial judge at the conclusion of the trial as part of the sentencing exercise carried out in the ordinary way. In determining the minimum term for such a prisoner, the Judge must act in accordance with the provisions of s. 269 and paragraph 10 of Schedule 22.

9. Those in the first and second category are described in the Act as "existing prisoners"; it is with such existing prisoners that the claimant's application is concerned. As to those in the first category, paragraph 3 of Schedule 22 provides that they may apply to the High Court to review the tariff term under paragraph 2 of the Schedule; the High Court is given power to reduce that term to a minimum term. As to those in the second category, paragraph 6 of Schedule 22 provides that the Home Secretary is bound to refer each case to the High Court to have the minimum term fixed under s 269 (2) or (4) of the Act.
10. There is provision by paragraph 14 of Schedule 22 for an appeal to the Court of Appeal Criminal Division, with leave, against any decision made in the High Court, in respect of those in the first or second category. It was common ground before us that any hearing before the Court of Appeal would, in accordance its usual procedure, be oral and that the Court would have the power to admit evidence under s.23 of the Criminal Appeal Act 1968, under its inherent jurisdiction.
11. However, in respect of the hearing before the High Court, the statutory provision is, on its face, quite different. Paragraph 11(1) of Schedule 22 provides:

"An application under paragraph 3 or a reference under paragraph 6 is to be determined by a single judge of the High Court without an oral hearing."

The challenge made by the claimant

12. The claimant's case was referred by the Home Secretary to the High Court to set the minimum term under paragraph 6 of Schedule 22. On 16 March 2004, the claimant was notified by the Court Service, on behalf of the High Court, that the Judge would announce the decision on the minimum term in public in open court after consideration of various matters, including the trial judge's report, the record of any previous convictions and representations made on his behalf. Such representations were requested by 16 June 2004. Some delay followed apparently because the claimant did not receive notification that public funding was available for his legal representation until June 2004.
13. His solicitors then wrote to the Court Service, stating he wished the High Court Judge to hold an oral hearing because of the complex factual and legal issues that arose. In later submissions, it was made clear on his behalf that, although he had denied at the trial being involved in the killing of Jade Hart, that was no longer the case and he wished to give oral evidence as to what he did and why. He also wanted to call evidence from a number of witnesses about his loss of temper and episodes of loss of control. He wanted the High Court Judge to determine, after hearing such oral evidence, whether there had been any sexual abuse and what the motive was for the violence perpetrated on the victim. It was only in the light of such a determination that the High Court Judge could properly fix his minimum term. His solicitors gave notice that he would seek to challenge the provisions which appeared to prevent the High Court Judge from holding an oral hearing for this or any other purpose.
14. On 3 August 2004, the claimant commenced these proceedings challenging the procedure which prevented an oral hearing in respect of existing prisoners in the first and second categories. He does not wish the Court to determine whether on the facts of his specific case, an oral hearing is required, but challenges the procedure set out in paragraph 11 of Schedule 22 which requires every determination by the High Court Judge to be made without an oral hearing.
15. It is contended on his behalf that a procedure which denies an oral hearing in every case is not compatible with Article 6 (1) in so far as it precludes the right to an oral hearing. However, it was submitted that paragraph 11 of Schedule 22 can, consistently with the approach of the House of Lords in R v A (No 2) [2002] AC 45 (and in particular the principles set out in the speech of Lord Steyn at paragraphs 37, 38 and 44), be read compatibly with Article 6 (1) by making it subject to the implied condition that the High Court Judge may in his discretion order a hearing where he considers such a hearing is required to comply with an existing prisoner's rights under Article 6 (1).
16. It is not disputed by the Home Secretary that an oral hearing may in some cases be required to comply with Article 6 (1). In a witness statement, made on behalf of the Home Secretary, the Head of the Lifer Review Recall Section of the National Offender Management Service has made it clear that in the majority of cases a paper based process would provide the fairest way of ensuring that initial decisions were taken in a reasonable time. He has, accepted, however, that

"if the High Court Judge felt that he could not fairly determine the matter without an oral hearing, for example, if he considers that the prisoner should be cross examined on his evidence, then it would be open to him to indicate that was the case in his decision and it is our understanding that in those circumstances the Court of Appeal would grant permission and hold an oral hearing on appeal"

17. It is contended on behalf of the Home Secretary that the requirements of Article 6 (1) are satisfied in such a case, because the procedure, considered as a whole, is compliant with Article 6 (1). As there could, in cases where an oral hearing or oral evidence was needed, be an appeal to the Court of Appeal, the proceedings in that Court would be by way of oral hearing and oral evidence could be admitted in circumstances where such evidence is required; that Court could on such a hearing make its own determination of the minimum term. As it could not therefore be disputed that the procedure in the Court of Appeal is fully compliant with Article 6 (1), then the procedure as a whole is compliant and this application made by the claimant is ill founded.
18. In short, although it is accepted that in some cases an oral hearing would be required in applications or reference to the High Court under Schedule 22, it is contended on behalf of the Home Secretary that under the jurisprudence relating to Article 6 (1), the Court is concerned to see if the procedure as a whole, including the appellate process, is compliant with Article 6 (1); it does not matter that the procedure in the High Court forbids the right to an oral hearing which Article 6 (1) requires in all but exceptional cases. The Court of Appeal's procedure would be by way of an oral hearing and, where apposite, the court has power to receive oral evidence; furthermore it has power to substitute its own view as to the appropriate minimum term. Therefore, in those case where an oral hearing or the receipt of oral evidence is necessary, because the Court of Appeal can hear oral submissions and set the minimum term, then, looked at as a whole, the procedure is compatible with Article 6 (1).
19. The first issue before us is therefore the narrow, but important issue, as to whether the restriction contained on the face of paragraph 11 of Schedule 22 is compatible with the requirements of Article 6 (1) because of the rights provided under the procedure of the Court of Appeal.
20. Before we turn to the Article 6 (1) it is convenient to record, as we have mentioned, that it is accepted that the Court of Appeal has power to receive oral evidence (where necessary) in all cases. It is also accepted on behalf of the claimant, at the hearing before us, that in the case of existing prisoners in the second category (of which the claimant formed part) the Court of Appeal has power to make its own determination of the minimum term and substitute that in place of the term fixed by the High Court Judge; that is because of the effect of ss. 269 and 271 of the Criminal Justice Act 2003 and s. 9 of the Criminal Appeal Act 1968. However, counsel for the claimant disputes whether the Court of Appeal has power to make its own determination in respect of existing prisoners in the first category; it is submitted that the Court of Appeal does not. However it is contended on behalf of the Home Secretary that the Court has the power either because the power is a necessary incident of its jurisdiction under the principles established in Taylor v Lawrence [2003] QB 528 or because of the effect of the provisions to which we have referred in connection with prisoners in the second category and s.50 of the Criminal Appeal Act 1968. Although we see considerable force in the submissions made on behalf of the Home Secretary, in the light of the conclusion to which we have come and because the claimant is not an existing prisoner in the first category, it is not necessary for us to determine this issue.

The requirements of Article 6 (1)

21. Article 6 (1) provides:

"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 …"

22. It is common ground that the leading relevant decision of the European Court of Human Rights is De Cubber v Belgium [1984] EHRR 236; each party before us contends that it supports the contention advanced. Before outlining those contentions, it is convenient to summarise the decision.
23. De Cubber was a Belgian citizen who had been convicted of forgery by the first instance court at Oudenaarde; he challenged his conviction on the basis that that court was not an impartial tribunal because one of the judges had acted as an investigating judge in his case. Amongst the grounds on which it was contended that there had been no breach of Article 6 (1) was the submission that there was a right of appeal to an appellate courts which was accepted to be impartial; that the Belgian Court of Cassation had rightly held that the court hearing the case at first instance did not have to satisfy the requirements of Article 6 (1), provided that the accused was able to appeal to a court that offered all the guarantees stipulated by Article 6 (1) and was able to review all questions of fact and law.
24. The European Court rejected the contentions advanced by Belgium:

"32. The thrust of the plea summarised above is that the proceedings before the Oudenaarde court fell outside the ambit of Article 6 (1). At first sight, this plea contains an element of paradox. Article 6 (1) concerns primarily courts of first instance; it does not require the existence of courts of further instance. It is true that the fundamental guarantees, including impartiality, must also be provided by any courts of appeal or courts of cassation which a Contracting State may have chosen to set up. However, even when this is the case it does not follow that the lower courts do not have to provide the required guarantees. Such a result would be at variance with the intention underlying the creation of several levels of courts, namely, to reinforce the protection afforded to litigants.

…

33. At the hearings, the Commission's Delegate and the applicant's lawyer raised a further question, concerning not the applicability of Article 6 (1) but rather its application to the particular facts: had not the 'subsequent intervention' of the Ghent Court of Appeal 'made good the wrong' or 'purged' the first instance proceedings of the 'defect' that vitiated them? …

The possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for an initial violation of one of the Convention's provisions: this is precisely the reason for the existence of the rule of exhaustion of domestic remedies, contained in Article 26. Thus the Adolf judgment of 26 March 1982 noted that the Austrian Supreme Court had 'cleared … of any finding of guilt' an applicant in respect of whom a District Court had not respected the principle of presumption of innocence laid down by Article 6(2).

The circumstances of the present case, however, were different. The particular defect in question did not bear solely upon the conduct of the first instance proceedings: its source being the very composition of the Oudenaarde criminal court, the defect concerned matters of internal organisation, and the Court of Appeal did not cure that defect since it did not quash on that ground the judgment of 29 June 1979 in its entirety".

25. The respective contentions of the parties can be briefly outlined:

i) It is submitted on behalf of the claimant that the European Court had drawn a distinction in De Cubber between on the one hand the provision of a system for hearings at first instance which guaranteed rights under Article 6 (1) and on the other hand the failure of the system in particular proceedings; if there is a systemic failure to provide the guaranteed rights, then that breach of Article 6 (1) cannot be cured by an appellate process; it is only a casual failure where the system is compliant that can be remedied on appeal. Those guaranteed rights include the right to an oral hearing; therefore the failure to provide that right cannot be cured by an appellate procedure. In support of the argument, reliance is placed on the decision of the European Court in Findlay v UK (1997) 24 EHHR 221 that a Court Martial that had tried the defendant was not an independent and impartial tribunal. The European Court held that there were fundamental flaws in the court-martial system and continued at paragraph 79:

"Nor could the defects referred to above be corrected by any subsequent review of proceedings. Since the applicant's hearing was concerned with serious charges classified as "criminal" under both domestic and Convention law, he was entitled to a first instance tribunal which fully met with the requirements of Article 6 (1)".

Reliance is also placed on Colozza v Italy (1985) 7 EHHR 516 and Rowe and Davies v UK (2000) 30 EHHR 1. We do not find that Colozza is of any assistance as it is concerned with an absent defendant and not a case such as this where the defendant would have been fully engaged at his trial and in the initial sentence imposed by the trial court.

ii) It is contended on behalf of the Home Secretary that the decision in De Cubber is of more limited effect. The furthest it could be said that European Court had gone was to hold that that the lack of impartiality of the first instance tribunal was a defect that could not be cured on appeal; no wider principle could be derived. Findlay was a decision to the same effect as it was only concerned with the right to an impartial tribunal. With the possible exception of that right, there is no breach of Article 6 (1), if the procedure of the first instance tribunal does not comply with Article 6 (1), provided that the decision can be fully reviewed by an appellate tribunal where the procedure complies with Article 6 (1). Save as to the right to an independent and impartial tribunal at first instance, it is therefore sufficient if the process as a whole complies with Article 6 (1). That is clear from the decision of the Grand Chamber of the European Court in Göç v Turkey, judgment of 11 July 2002.

Our conclusion

26. In Göç v Turkey the applicant had claimed compensation for unlawful detention and mistreatment during that detention; although the proceedings were civil in nature, they were governed by the code of criminal procedure. The applicant was not given an oral hearing before the first instance court which was responsible for establishing the facts and assessing the compensation; Turkey sought to rely on the fact that there could have been an oral hearing before the Court of Cassation and, as the applicant had not sought a hearing before that Court, he had waived his right. The European Court rejected that contention at paragraph 48:

"… Even assuming that Article 438 of the Code of Civil Procedure could have provided the basis for a request for a hearing before the Court of Cassation, the crucial question is whether the applicant should have been afforded a hearing before the Karsiyaka Assize Court, the tribunal which was responsible for establishing the fact of the case and assessing the amount of compensation to be awarded to the applicant. To the extent that the Government imply this, the applicant cannot be considered to have waived his right to an oral hearing by failing to request one before the Court of Cassation since that court did not have full jurisdiction to substitute its own view of the amount of compensation which should be awarded to the applicant for that of the first-instance court (see mutatis mutandis, Diennet v France, judgment of 26 September 1995, Series A nn.325-A, p.15, § 34 [21 EHHR 554])

49. Having regard to the above considerations, the Court will examine whether there were any exceptional circumstances which justified dispensing with an oral hearing on the applicant's compensation claim."

27. It seems to us that the submission made on behalf of the claimant goes too far in so far as it is contended that, where there is a systemic failure of procedure incompatible with Article 6 (1), it cannot be remedied on appeal. De Cubber was dealing solely with the question as to whether the lack of impartiality of a first instance tribunal could be remedied by an appellate process; the very same issue arose in Edwards. There is nothing in either decision that suggests that the European Court was adopting the much broader proposition that a systemic fault could not be cured by an appellate process; those two decisions were dealing with the lack of impartiality of the tribunal and that is the extent of the decisions. Indeed the decision in Göç is inconsistent with the claimant's broader proposition, as the Court implicitly accepted that the lack of an oral hearing could be cured by an appellate process which provided for an oral hearing and gave the appellate court power to substitute its own findings for those of the lower court. We do not consider that case can be distinguished because the European Court was relying on Diennet v France on the basis that a different rule applied to tribunals. Diennet was a medical practitioner who challenged a finding of guilt before a disciplinary tribunal of the French Medical Association on various grounds including the failure to hold the hearing in public. The European Court held that the fact that the right of appeal to the Conseil d'Etat on points of law was in public did not cure the defect as it was not a body having full jurisdiction, because it could not assess the proportionality of the penalty; that was the basis of that decision and why it was relied on by the Court in Göç.
28. Although we therefore reject the wider argument made on behalf of the Claimant, we also reject the contention made on behalf of the Home Secretary as to the effect of De Cubber. The European Court made clear in paragraph 32 of the judgment in De Cubber that the Convention requires courts of first instance within the ordinary judicial structure of a State to provide the fundamental guarantees under Article 6 (1). The European Court made it clear that the rights included the right to an impartial tribunal. Although that was the right under consideration, the reasoning is equally applicable to the right to an oral hearing. Furthermore the European Court made it clear that the fact that an appellate court provided the guarantees under Article 6 (1) did not relieve the first instance court of its obligation to provide such guarantees; the role of the appellate court was to provide reparation for a violation of Article 6 (1) and it might therefore remedy the State's initial violation.
29. The decision in Göç is entirely consistent with that part of the decision. Indeed the European Court considered the real issue in Göç was whether the applicant should have been afforded a hearing at the court of first instance; the Court was only concerned with the question as to whether the lack of an oral hearing could be remedied on appeal on that basis.
30. As it was accepted in the present case on behalf of the Home Secretary that there were some cases where an oral hearing would be necessary to comply with the requirements of Article 6 (1), it cannot, in our view, therefore be disputed that, in the light of paragraph 32 of the decision in De Cubber, the High Court, as the court of first instance, must provide an oral hearing in such cases. If an oral hearing is not provided in such a case by the court of first instance, then there is a breach of Article 6 (1), as a first instance tribunal is bound to provide the guarantees in Article 6 (1), including the right to an oral hearing. It would follow that if paragraph 11 of Schedule 22 prevented an oral hearing in such a case, it would be incompatible with the Convention.
31. S. 3 (1) of the Human Rights Act 1998 provides that primary legislation must be read and given effect in a way which is compatible with Convention rights. Would it then follow that the incompatibility which appears on the face of paragraph 11 would be remedied by the provision of an appellate process which is compatible with the Convention? We do not consider that is so. The question before us is not whether, if there is a breach of the guarantee of an oral hearing at the court of first instance, it can be remedied by an oral hearing in the Court of Appeal, but rather whether there would be a breach of Article 6 (1) if the High Court did not hold an oral hearing where one is required. That is the question before us because we are concerned with the application of s. 3 (1) of the 1998 Act. We are not concerned with remedies for a breach by the court of first instance resulting from incompatibility, but with seeing if the legislation can be read so as to avoid that initial incompatibility at the court of first instance.
32. In our view, s.3 (1) of the 1998 Act cannot be read as meaning that, if a remedy is provided by an appellate court for a provision which is incompatible with Convention rights, it is not necessary to read that provision as being incompatible with the Convention. The purpose of s. 3 (1) is to try and ensure that legislation is read and given effect to in a way compatible with Convention rights. The provision of a remedy by the Court of Appeal presupposes a breach which it is the purpose of s. 3 (1) to avoid. We accept that the existence of a remedy is important to the question of whether proceedings looked at as a whole are compatible with Article 6 (1) and that, if the proceedings as a whole are compliant, the claimant will have no remedy before the European Court. But, as we have said, that is not relevant to the question as to whether there was a breach in the court of first instance, which the existence of a remedy presupposes and which s 3 (1) was intended to prevent.
33. In our view therefore, if proceedings under paragraphs 3 or 6 of Schedule 22 were to be conducted in the High Court, where the Judge who had to decide the issue considered that an oral hearing was necessary (for example for him to hear and test evidence) in order to afford the existing prisoner his rights under Article 6 (1), but was prevented from holding one by paragraph 11, there would be a clear incompatibility with Article 6 (1). S. 3 (1) of the 1998 Act requires the court to read paragraph 11 so that it is compatible with Convention rights. To avoid that incompatibility, the paragraph must therefore be read subject to an implied condition that permits the High Court Judge to hold a hearing where in his discretion he considers it necessary to afford the existing prisoner his rights under Article 6 (1). The right of appeal provides a remedy for a breach, but it does not render the hearing before the High Court Judge compatible with Article 6 (1) where the judge is precluded from holding a hearing which he considers necessary to afford the existing prisoner his rights under Article 6(1); it is compatibility under s. 3 (1) of the 1998 Act the court must, if possible, achieve and not a subsequent remedy for that incompatibility.
34. We therefore consider that the applicant is entitled to a declaration that paragraph 11 should be read as subject to the implied condition that the High Court Judge has the discretion to order an oral hearing, where such a hearing is required to comply with the rights under Article 6 (1) of a prisoner who makes an application under paragraph 3 of Schedule 22 or whose case is referred under paragraph 6 of that Schedule.

The procedure to be followed in the High Court

35. We turn therefore to the question as to the way in which the High Court should proceed in the light of our decision on the first issue before us. It is contended on behalf of the claimant that we should limit our decision to the grant of the declaration, but, as we made clear in the course of oral argument, we consider it important to give some general guidance on the way the High Court should proceed, though without deciding the question as to whether the claimant is entitled to an oral hearing on the particular facts of the reference of his case to the High Court. We then heard argument on the issue.
36. In Göç v Turkey, the European Court, after holding, as set out above, that an oral hearing was required save in exceptional circumstances, went on to decide by a majority of 9 to 8 that, in the circumstances, the refusal to grant the applicant an oral hearing had violated Article 6 (1). The minority summarised the existing case law in a helpful passage:

"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."

37. In Smith and Dudson v Secretary of State for the Home Department [2004] EWCA Civ 99, the Court of Appeal considered the effect of that judgment. After observing that it was normally necessary for a criminal sentence to be determined at a public hearing, though exceptional circumstances might show that was unnecessary, it held at paragraph 92:

"The task undertaken by the Lord Chief Justice of reviewing the tariffs of those young persons who were detained during her Majesty's pleasure satisfied many of the criteria identified by the minority in Göç v Turkey as constituting "exceptional circumstances" that dispensed with the need for an oral hearing. It was a routine task that involved considering progress reports and representations that could adequately be made in writing. Could it be said that no public interest was at stake? The task of reviewing the transitional cases was a very substantial burden undertaken by the Lord Chief Justice, to be performed in addition to his existing heavy judicial duties. If he had granted detainees oral hearings, the completion of the task would have been greatly delayed. Having regard to the nature of the exercise, we consider that the procedure adopted by the Lord Chief Justice was in both the public interest and the interest of individual detainees. "

38. In our view, a High Court Judge will, in the majority of cases, probably the overwhelming majority, where either an application is made under paragraph 3 by a defendant whose tariff has been fixed or where a reference is made under paragraph 6 for the minimum term to be fixed, be able to determine the matter in a way compatible with Article 6 (1) without the need for an oral hearing during the proceedings before him.
39. The trial will have taken place through an oral hearing in public. In the case of each defendant sentenced after September 2000, their advocate will have had the opportunity to make oral representations to the trial judge on the defendant's behalf; in our experience many sentenced to mandatory life imprisonment prior to September 2000 will also have had oral representations made on their behalf to the trial judge in respect of the tariff term. The High Court Judge, when considering the application or reference under Schedule 22, will have before him all the relevant information including the report made by the trial judge who will have heard all the evidence and submissions, the transcript of any oral representations made (if available) and any written representations that were made originally on behalf of the defendant. The Judge will also have further written representations and submissions specifically made to him for his determination under Schedule 22; further oral submissions can in most such cases add nothing and are therefore not necessary to comply with Article 6 (1) (see, for example, the judgment of Lord Woolf MR in R v Secretary of the State for the Home Department ex parte Easterbrook (22 March 1999)). Where the sentence of mandatory life imprisonment was passed in the Crown Court by a High Court Judge on an existing prisoner in respect of whom the Home Secretary has made a reference under paragraph 6, then wherever possible, that High Court Judge will consider and determine the reference.
40. After considering the relevant information and representations, it is important to emphasise that the High Court Judge will give his decision in public in open court.
41. There are over 700 cases under the second category of existing prisoners in which a reference under paragraph 6 will be necessary and there are currently over 360 applications from existing prisoners in the first category which have been made under paragraph 3. Providing for oral hearings in all such cases would significantly delay the resolution of the applications and references without any benefit in the overwhelming number of cases. In the circumstances, a procedure without the need for a further oral hearing is in the public interest and in the interests of individual defendants in most cases.
42. However, as is accepted on behalf of the Home Secretary, there will be rare cases where oral representations may be required and even rarer cases where oral evidence may be required. It will be for the Judge in each case to decide whether such evidence or such representations are required, depending on a close examination of the issue or issues that have to be decided by him in the proceedings, the full written materials available and submitted and the nature of the oral hearing required.

i) If the defendant who has made an application under paragraph 3 or whose case has been referred under paragraph 6 considers that oral evidence or oral representations are required in the specific circumstances of his case, then at the time he submits his full representations in relation to the merits of the reference under paragraph 6 or the merits of his application under paragraph 3, he should make a separate, but simultaneous, application to the Court in writing for a hearing, setting out precisely the reasons why oral evidence or oral representations are required in addition to the full written representations on the merits which have been submitted. Those who have already made written representation on the merits will be informed of the effect of this judgment and a specified time will be allowed for them to make any written application they may wish for an oral hearing.

ii) The Judge will then determine whether an oral hearing is required. If he decides one is not required, then he will proceed to determine the application or reference on the basis of the written materials and representations as to the merits before him. His decision on the application or the reference can, with leave, be subject to an appeal to the Court of Appeal and the grounds of appeal can, if appropriate, seek to impugn the decision not to hold an oral hearing.

iii) There may be cases, in rare and unusual circumstances, where the Judge may decide that he requires an oral hearing; if so, he will notify the parties when he has considered the papers and an oral hearing will then take place.

43. We therefore grant a declaration in the terms we have indicated, but make it clear that cases where an oral hearing is required will be rare. We will give directions for the further conduct of the claimant's reference under paragraph 6 of Schedule 22 when we hand this judgment down.
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LORD JUSTICE THOMAS: For the reasons that appear in the written judgment that is being handed down, we grant the declaration in the terms set out in the judgment, which is broadly in the terms in which the claimant sought it.

Ms Gallafent, can I also say thank you very much for your submissions, both the claimant's submissions and yours. I have only been able to consult Fulford J as Richards J is out of the country. We obviously will certify the questions but Fulford J and I -- I think we constitute a sufficient majority -- refuse leave. We feel it is a matter you should seek from their Lordships' house.

The reason I was grateful for you coming is, of course you will appreciate, that if the Secretary of State pursues his application for leave there is the question of what happens to all the prisoners in the meantime. This matter was brought on expeditiously and all I would say to you is, if you are to petition the Lords, to petition them as soon as possible. Could you keep the office here that deals with these matters regularly informed? I have spoken to the Registrar about this and I think it is quite important.

I think what we shall do, and this is what I really wanted to ask you, is you will see in the judgment we say that we have set out our view of what the law is and then said we would write to tell those who have already put in their submissions of the effect of this judgment. That letter will now of course say that you may or may not petition the Lords. As soon as that is known the office will of course want to tell people what to do. The sole reason I am slightly concerned about is the concern we had about the delays. There is nothing I can do to help you on that, is there?

MS GALLAFENT: No, my Lord, we will certainly petition as soon as possible if the position is having to petition the House of Lords. That is clearly understood and it is regrettable in relation to the setting of tariffs. I will certainly pass that on.

LORD JUSTICE THOMAS: I thought I could see you quite fairly without Ms Kaufmann being here. That was the sole point I wanted to talk to you about. I have read everything else, but it was that clarification I want. The only thing is if you could pass on that we are sorry we took slightly longer. Fulford J was out of the country part of the time performing his duties at the international court and it has proved quite difficult to find time that we all could see everything together.

Thank you very much for your assistance. If you could pass the same on to Ms Kaufmann. I am sorry to drag you here at this hour of the night.

MS GALLAFENT: Not at all.

LORD JUSTICE THOMAS: I think you would prefer that to 8.30 tomorrow morning.

MS GALLAFENT: I am very grateful.

LORD JUSTICE THOMAS: It would have been then and I think the staff prefer 4.30 in the afternoon to 8.30 in the morning. Thank you all very much. Please draw up an amended order.

MS GALLAFENT: Yes, my Lord.