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

The House of Lords held that paragraph 11(1) of Schedule 22 to the Criminal Justice Act 2003, which requires a High Court judge to determine transitional minimum terms "without an oral hearing", is incompatible with article 6(1) of the European Convention on Human Rights in cases where fairness requires an oral hearing. The court explained that determination of a minimum term is part of sentencing and thus prima facie attracts the article 6 guarantee of a public and adversarial hearing. The statutory bar on an oral hearing cannot be cured in every case by the possibility of a later oral appeal, and accordingly the provision must be read (in accordance with the parties' concession) so as to leave the judge a discretion to order an oral hearing where necessary to secure article 6 fairness.

Background and facts.

The respondent was convicted after a contested trial of murdering a 13-month-old child and was sentenced to imprisonment for life on 10 April 2003. The trial judge subsequently recommended a punitive term of 25 years (written report dated 19 May 2003). The respondent fell into the transitional class of prisoners sentenced before 18 December 2003 whose minimum term had not been notified to them (class (2)).

Nature of the application.

• The respondent applied for judicial review seeking (1) a declaration under section 3 of the Human Rights Act 1998 that paragraph 11(1) of Schedule 22 to the Criminal Justice Act 2003 is to be read as permitting an oral hearing where necessary to secure article 6(1) rights, and (2) in the alternative, a declaration that paragraph 11(1) is incompatible with article 6(1).

Procedural posture. The Divisional Court (Thomas LJ) allowed the application and made a declaration in terms substantially equivalent to the first declaration sought ([2004] EWHC 2753 (Admin)). The Secretary of State appealed to the House of Lords.

Issues framed by the House.

• Whether paragraph 11(1) of Schedule 22, by precluding an oral hearing before a High Court judge determining transitional minimum terms, is compatible with article 6(1) ECHR.
• Whether any deficiency at first instance is inevitably cured by the availability of an oral hearing on appeal.

Reasoning and conclusion.

The Lords reviewed Strasbourg authority and domestic authorities distinguishing administrative/disciplinary decision-making (where a later judicial review or appeal may remedy procedural defects) from "courts of the classic kind" where first-instance guarantees are essential. Determination of a minimum term is part of sentencing and prima facie attracts the article 6 right to a public, adversarial hearing, which ordinarily implies a right to an oral hearing. Although many Schedule 22 references will not require an oral hearing, in a limited number of cases fairness will require one. The availability of an oral appeal does not reliably cure the lack of an oral hearing at first instance because appeal jurisdiction differs in function and remedy and because leave to appeal and appellate powers are limited. The House therefore dismissed the appeal and accepted the Divisional Court's approach that paragraph 11(1) must be read so as to leave the High Court judge with a discretion to order an oral hearing where required to secure article 6 fairness. The court did not decide in detail the scope of the s.3 interpretative power, since the Secretary of State accepted the necessary qualification.

Appeal dismissed. The House held that paragraph 11(1) of Schedule 22 to the Criminal Justice Act 2003, which mandates determination "without an oral hearing", is incompatible with article 6(1) ECHR in cases where fairness requires an oral hearing; accordingly the provision must be read (subject to the parties' concession) as permitting a High Court judge discretion to order an oral hearing when necessary to secure article 6 rights.

[2004] EWHC 2753 (Admin) (Divisional Court allowed the judicial review and made a declaration); appeal to House of Lords [2005] UKHL 69 (this judgment).