Regina v. Secretary of State for the Home Department (Respondent) ex parte Dudson (FC) (Appellant) and one other action

Article 6(1) of the European Convention on Human Rights does not confer an absolute right to an oral hearing at every stage of criminal proceedings. For a proceeding after trial, the court must examine the proceedings as a whole, the decision-maker’s role, the nature of the procedure and the powers exercised. The practical question is whether the issues can fairly be determined without hearing the person orally.

A judicial review of an existing juvenile murder tariff may therefore proceed on written representations where the trial has settled culpability, the review requires no new factual findings, all relevant material is disclosed and oral argument would add nothing of value.

The appellant was convicted of murder at the age of 16 and detained during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933. The executive originally set an 18-year minimum term. Following the Strasbourg ruling that executive tariff-setting violated article 6(1) of the European Convention on Human Rights, the Lord Chief Justice reviewed the tariff on written material and recommended reducing it to 16 years.

The Divisional Court dismissed the appellant’s judicial review claim: [2003] EWHC 2797 (Admin). The Court of Appeal dismissed his appeal in proceedings heard with Maria Smith’s appeal: [2004] EWCA Civ 99; [2004] QB 1341. The issues before the House were whether article 6(1) required an oral hearing, whether any right had been waived and, if not, what relief should follow.

1. Appeal dismissed unanimously. Lord Hope of Craighead delivered the leading opinion. Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann and Baroness Hale of Richmond agreed.
2. Per Lord Hope, article 6(1) guarantees a fair and public hearing but does not require oral argument at every stage. In proceedings after first instance, its application depends upon the special features of the proceeding. The tribunal must consider the domestic proceedings as a whole, including the trial, the decision-maker’s role, the procedural system and the scope of the powers exercised. The overriding practical question is whether the issues could fairly be decided without hearing the applicant orally.
3. The tariff review was a highly unusual transitional process and was closer to appellate review than first-instance sentencing. The public trial had established the crime, culpability and the requirements of retribution and deterrence. The Lord Chief Justice had to place the case on the appropriate tariff scale and assess whether later conduct and representations justified adjustment. He was not required to resolve new factual disputes.
4. The appellant sought oral advocacy by his solicitors, rather than an opportunity to give evidence personally. They had ample opportunity to make detailed written representations and answer all adverse material. Oral submissions were unlikely to add relevant information and would have been a formality. This differed from a procedure in which fairness required a hearing before a final decision, as in R (West) v Parole Board [2005] UKHL 1.
5. The wider procedural setting reinforced that conclusion. The Lord Chief Justice had to review about 250 transitional cases consistently and within a reasonable time. Routine oral hearings would have substantially increased the burden and caused delay without demonstrated benefit. He could direct an oral hearing in any individual case where it was necessary. Publication of the governing practice statement and delivery of each tariff decision in open court met the relevant public element.
6. Accordingly, the absence of an oral hearing did not violate article 6(1). The House did not decide waiver or remedy. Lord Bingham added that the review was procedurally unique and that a further tariff reduction remained possible for truly exceptional progress not previously allowed for, consistently with R v Secretary of State, Ex p Maria Smith [2005] UKHL 51.

1. House of Lords: Dismissed the appeal unanimously: [2005] UKHL 52.
2. Court of Appeal: Dismissed the appellant’s appeal in proceedings heard together with Maria Smith’s appeal: [2004] EWCA Civ 99; [2004] QB 1341.
3. Divisional Court of the High Court: Held that the Lord Chief Justice was under no obligation to afford an oral hearing and, alternatively, that any entitlement had been waived. It also held that due regard had been paid to the appellant’s welfare: [2003] EWHC 2797 (Admin).