R (on the application of Hammond) (FC) (Respondent) v. Secretary of State for the Home Department (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)

The judicial determination of the minimum term for a mandatory life prisoner forms part of sentencing and therefore of the criminal trial. Article 6 of the European Convention on Human Rights ordinarily entitles the prisoner to a public oral hearing at first instance.

The unusual transitional procedure for existing prisoners may permit determination on the papers where an oral hearing would serve no purpose. Fairness may nevertheless require an oral hearing in an individual case. A statutory provision which prohibits such a hearing in every case is incompatible with article 6. The possibility of an oral appeal does not make the prohibition compatible because a sentence appeal is a review, not a first-instance determination or complete rehearing. Paragraph 11(1) of Schedule 22 to the Criminal Justice Act 2003 was accordingly read as preserving a discretion to order an oral hearing whenever fairness requires it.

The respondent was convicted of murdering a 13-month-old child and sentenced to mandatory life imprisonment. The trial judge subsequently recommended a punitive term of 25 years, but neither the Lord Chief Justice nor the Secretary of State fixed a term before the transitional provisions of the Criminal Justice Act 2003 took effect.

Under paragraph 6 of Schedule 22, the Secretary of State referred the case to the High Court for determination of the respondent's minimum term. Paragraph 11(1) required that determination to be made without an oral hearing. The Divisional Court held in [2004] EWHC 2753 (Admin) that the paragraph should be read as permitting an oral hearing where article 6(1) of the European Convention on Human Rights required one.

The Secretary of State appealed. The central issue was whether the availability of an oral sentence appeal could make the absolute prohibition on a first-instance oral hearing compatible with article 6.

1. Appeal dismissed unanimously. Lord Bingham delivered the principal speech. Lord Hoffmann and Lord Brown gave concurring reasons; Lord Rodger and Lord Carswell agreed that the appeal should be dismissed.

2. Per Lord Bingham, the fixing of a mandatory life prisoner's minimum term is the imposition of sentence and forms part of the criminal trial. Sentencing should ordinarily occur publicly, with the defendant present, represented and able to participate. Lord Hoffmann, Lord Rodger and Lord Brown agreed that a prisoner is therefore prima facie entitled to a public oral hearing at first instance under article 6(1) of the European Convention on Human Rights.

3. Per Lord Bingham and Lord Rodger, the transitional exercise under paragraphs 3 and 6 of Schedule 22 to the Criminal Justice Act 2003 is unusual. In many cases the prisoner will already have had an opportunity to present mitigation and an oral hearing will add nothing. An oral hearing is required only when necessary to secure fairness, and the right may be waived.

4. Per Lord Bingham, paragraph 11(1) was incompatible with article 6 because it prohibited an oral hearing even where fairness required one. A possible appeal did not cure that legislative defect. Leave might be refused; the Court of Appeal would review whether the term was manifestly excessive or wrong in principle; it could not remit the sentence for a lawful first-instance oral hearing; and its function was not to conduct a hearing de novo.

5. Per Lord Hoffmann, deficiencies in administrative or disciplinary decision-making may be cured by adequate judicial control, but that doctrine does not govern sentencing by a court of the classic kind. A public appellate hearing cannot replace the first-instance publicity required in ordinary criminal proceedings unless there is a complete rehearing.

6. Per Lord Brown, a judge's mistaken decision that an oral hearing was unnecessary might be remediable by a sufficiently full appeal. That possibility did not permit the state to require first-instance determinations to be made unfairly where the sentencing judge considered a hearing essential.

7. The parties accepted that paragraph 11(1) could be read under section 3 of the Human Rights Act 1998 as giving the High Court discretion to order an oral hearing whenever fairness required one. The House affirmed that disposition but, as the point had not been argued, Lord Bingham, Lord Hoffmann and Lord Rodger expressly declined to decide whether section 3 authorised that interpretation.

1. House of Lords: The Secretary of State's appeal was dismissed unanimously. The Divisional Court's disposition was affirmed: paragraph 11(1) of Schedule 22 to the Criminal Justice Act 2003 was to be read as permitting an oral hearing where article 6(1) required one: [2005] UKHL 69.

2. High Court, Queen's Bench Divisional Court: Thomas LJ, Richards J and Fulford J allowed the judicial review application and declared that the High Court could order an oral hearing where necessary to comply with article 6(1): [2004] EWHC 2753 (Admin).