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

The House of Lords held that the absence of an oral hearing before the Lord Chief Justice in the process established for re‑setting the tariff of a juvenile detained during Her Majesty's pleasure did not infringe the right to a fair and public hearing under article 6(1) of the European Convention on Human Rights. The court treated the review as a limited judicial review/reviewing exercise rather than a full rehearing of facts: the facts and initial assessment of culpability had been determined at trial, and relevant written representations and reports were made available to the Lord Chief Justice. The Lord Chief Justice's published practice statement, the availability of written representations, the public delivery of his reasons in open court and his discretion to order an oral hearing where necessary satisfied the requirements of article 6(1) in the special circumstances of these transitional reviews.

Background and parties: The appellant, sentenced as a juvenile to be detained during Her Majesty's pleasure for murder, sought judicial review of the Secretary of State's decision adopting the Lord Chief Justice's recommendation to reset his minimum term (tariff). The appellant contended he was entitled to an oral hearing before the Lord Chief Justice under article 6(1) ECHR and that the Lord Chief Justice had failed to have regard to the appellant's welfare in setting the tariff.

Procedural history: The tariff had originally been set at 18 years; the Lord Chief Justice reviewed it and recommended reduction to 16 years, a recommendation accepted by the Secretary of State. The appellant obtained permission for judicial review: the Divisional Court dismissed his challenge ([2003] EWHC 2797 (Admin)). The Court of Appeal dismissed his appeal together with the appeal in the related Smith case ([2004] EWCA Civ 99; [2004] QB 1341). The appeal to the House of Lords followed.

Nature of the claim and relief sought: The appellant sought (1) a declaration that article 6(1) entitled him to an oral hearing before the Lord Chief Justice when his tariff was reviewed, (2) alternatively that any such entitlement had not been waived, and (3) relief for any procedural deficiency.

Issues framed:

• whether article 6(1) required an oral hearing before the Lord Chief Justice in the tariff review;
• if so, whether that right had been waived; and
• what relief was appropriate if the right existed and was not waived.

Court's reasoning: The court analysed Strasbourg jurisprudence and domestic context and characterised the Lord Chief Justice's task as a review rather than a fresh trial: the material facts and initial sentencing determinations had been publicly established at trial. Article 6(1) does not, as a general matter, require an oral hearing at every subsequent stage; whether one is needed depends on the special features of the proceedings, the role of the decision‑maker, the scope of issues to be decided and the adequacy of written representations. Given the practice statement, the provision of all relevant written material, the public announcement of reasons in open court and the Lord Chief Justice's ability to order an oral hearing in particular cases, the absence of an oral hearing did not render the process unfair in the appellant's case. Having reached that conclusion, the court did not need to determine waiver or relief issues.

Wider context: The court recognised the unusual, transitional nature of the tariff reviews set up in response to V v United Kingdom and emphasised the practical demands on the Lord Chief Justice in reviewing many legacy juvenile tariffs while maintaining fairness and reasonable expedition under article 6(1).

Appeal dismissed. The House of Lords held that, on the facts and special features of the transitional review procedure established for resetting juvenile tariffs, article 6(1) was not breached by the absence of an oral hearing before the Lord Chief Justice. The review was a limited judicial assessment of matters already determined at trial and adequate procedural safeguards were provided by written representations, public reasons in open court, the practice statement and the Lord Chief Justice's discretion to order oral hearings where necessary.

Permission for judicial review granted and Divisional Court (Kennedy LJ and Mackay J) dismissed the challenge: [2003] EWHC 2797 (Admin). The Court of Appeal (Lord Phillips MR, Mantell and Carnwath LJJ) dismissed the appellant's appeal: R (Smith) v Secretary of State for the Home Department [2004] EWCA Civ 99; [2004] QB 1341. The appeal to the House of Lords was dismissed: [2005] UKHL 52.