Hammond, R (on the application of) v Secretary of State for the Home Department

A statutory procedure requiring determinations without an oral hearing must be read compatibly with Article 6(1) of the Convention. Where a High Court judge considers that an oral hearing is necessary to protect the prisoner’s fair-hearing rights, the judge must have discretion to order one. An appellate hearing capable of curing the breach does not make the first-instance procedure compatible for the purposes of section 3 of the Human Rights Act 1998. In most tariff reviews, written materials will suffice. Oral hearings should be ordered only where the particular factual or legal issues make them necessary.

The claimant was convicted of murder and became an existing mandatory life prisoner whose minimum term had to be fixed by the High Court under paragraph 6 of Schedule 22 to the Criminal Justice Act 2003. Paragraph 11(1) appeared to require every such determination to be made without an oral hearing.

The claimant challenged that restriction under Article 6(1), arguing that it prevented a hearing where oral evidence or oral representations were necessary. The Secretary of State relied on the possibility of a full oral appeal to the Court of Appeal. The central issue was whether that appellate process made the statutory procedure compatible with Article 6(1).

1. Declaration granted. Paragraph 11 of Schedule 22 must be read subject to an implied condition permitting the High Court judge to order an oral hearing where necessary to comply with Article 6(1) rights.
2. Article 6(1) requires courts of first instance within the ordinary judicial structure to provide the fundamental guarantees of a fair hearing. The obligation includes an oral hearing where the circumstances require one. An appellate court may provide a remedy for an initial breach, but that does not remove the first-instance court’s obligation.
3. The wider submission that every systemic procedural defect is incapable of cure on appeal was rejected. De Cubber v Belgium concerned the impartiality of the first-instance tribunal. Its reasoning did not establish that every defect must be cured at first instance.
4. Section 3(1) of the Human Rights Act 1998 is concerned with reading legislation compatibly with Convention rights, rather than relying on a later appellate remedy for an incompatibility. If the High Court judge considers that an oral hearing is required, paragraph 11 cannot prevent it.
5. In the overwhelming majority of applications and references, the trial record, the trial judge’s report and written representations will permit a fair determination without a further hearing. A hearing may be required in rare cases, particularly where oral evidence must be heard or tested. The prisoner should make a separate written application explaining why oral evidence or oral representations are necessary. The judge should decide that application, and any refusal may be challenged on appeal.

First-instance judicial review proceedings. The judgment records the claimant’s conviction and the statutory reference of his minimum term to the High Court, but no prior judicial decision in the same proceedings.