QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE RICHARDS
MR JUSTICE FULFORD
| The Queen on the Application of Ross HAMMOND
|- and -
| Secretary of State for the Home Department
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)
Kate Gallafent (instructed by The Treasury Solicitor) for the Defendant
Crown Copyright ©
Lord Justice Thomas:
"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. "
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.
"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
"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"
The requirements of Article 6 (1)
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly "
"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".
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.
" 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."
The procedure to be followed in the High Court
"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."
"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. "
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.
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.