Dudson, R (on the application of) v Secretary of State for the Home Department & Anor

When fixing a minimum term for a young offender detained during Her Majesty’s pleasure, the decision-maker must consider the offender’s welfare, but need not make allowance for exceptional progress that could not reasonably have been foreseen. Article 6.1 does not create an automatic right to oral submissions in every tariff-setting exercise. An oral hearing is required only where it would have practical utility in securing a fair procedure, having regard to the issues and the material before the decision-maker. A clearly maintained request for an oral hearing may also be waived or abandoned by subsequent conduct. The Lord Chief Justice’s role in resetting transitional tariffs was judicial in character, although the Secretary of State formally made the tariff decision.

The claimant, detained during Her Majesty’s pleasure following a murder conviction committed when he was 16, challenged the resetting of his minimum term at 16 years. He argued that insufficient weight had been given to his welfare and that he should have been permitted to make oral submissions to the Lord Chief Justice.

The Divisional Court considered the statutory welfare duty, the effect of R (Smith) v Secretary of State for the Home Department [2003] 1 WLR 2176, and the requirements of Article 6.1 of the European Convention on Human Rights. It also considered whether any right to an oral hearing had been waived.

1. Welfare. The original tariff did not demonstrate a failure to consider welfare. The substantial reduction from the tariffs recommended for the adult co-defendants showed that the claimant’s youth, welfare and the corrupting influence of the co-defendants had been taken into account. Section 44(1) of the Children and Young Persons Act 1933 did not require a court to allow for exceptional and unforeseeable progress.
2. The Lord Chief Justice considered the tariff afresh, taking account of the written representations, the claimant’s progress and the victim’s family’s representations. The challenge based on the absence of provision for future exceptional progress depended on R (Smith) v Secretary of State for the Home Department [2003] 1 WLR 2176. As that decision then represented the law, any further review required by it could cater for such progress.
3. Reviewability. The Lord Chief Justice’s role in resetting transitional tariffs was judicial in character, although the Secretary of State formally reset the tariff after adopting the recommendation. The claim could therefore not be answered solely by treating the Lord Chief Justice as a private adviser.
4. Oral hearing. Article 6.1 may require an oral hearing in an appeal or sentencing-related procedure where, on the facts and issues, it is necessary to secure fairness. It does not require an oral hearing in every tariff-fixing case. Here the written submissions were detailed, the relevant facts were not materially disputed, and no issue was identified on which oral argument would have assisted the decision.
5. Waiver. Even if the claimant had possessed a right to make oral representations, his later correspondence objectively showed that he had abandoned it. He sought an urgent decision, accepted further written representations, and made no request to address the new material orally.
6. The claim for judicial review was dismissed. Permission to appeal was granted, and the appeal was directed to be listed with the appeal in Smith.

This was a first-instance judicial review in the Divisional Court. The court granted permission to appeal and directed that the appeal be listed with the appeal in R (Smith) v Secretary of State for the Home Department [2003] 1 WLR 2176.