A.D. v the United Kingdom - 39586/05 [2009] ECHR 1308 (25 August 2009)

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The European Court of Human Rights (Fourth Section), sitting on 25 August 2009 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant is a British national, born in 1976 and who, at the time of submitting his application, was imprisoned in the United Kingdom. He was represented before the Court by Bhatt Murphy, a firm of solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Helen Upton, Foreign and Commonwealth Office, London.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 17 December 1993 the applicant, along with three adult co defendants, was convicted of the murder of a 16 year old girl, who had been held captive and tortured for a week before being killed. Being under the age of 18 at the time of the offence, the applicant was sentenced to be detained during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933. Following his conviction the applicant applied for leave to appeal. On 3 May 1994 leave to appeal was refused by the Court of Appeal. This decision was affirmed by the full court on 3 November 1994.

In his report dated 13 January 1994, the trial judge acknowledged that the applicant, who was much younger, had been corrupted by his co-defendants, but found nonetheless that he had played an active part in the torture and the killing. Having recommended a tariff of 25 years for the three adult co-defendants, he recommended that detention for a period of 18 years was necessary in the applicant’s case to meet the requirements of retribution and deterrence for the offence. On 17 January 1994 the Lord Chief Justice agreed with this recommendation, in view of the exceptional gravity of the case. The Secretary of State accepted the proposal and set the tariff which was to be applied in the applicant’s case at 18 years.

Following the Court’s judgments in T. v. the United Kingdom [GC], no. 24724/94 and V. v. the United Kingdom [GC], no. 24888/94, both ECHR 1999-IX, which held that the setting of a tariff for a juvenile detained at Her Majesty’s pleasure was a sentencing exercise that engaged Article 6 § 1 of the Convention and therefore should not be done by ministers, the Secretary of State announced to Parliament on 13 March 2000 that he would bring forward legislation to provide for tariffs to be set by the trial judge in open court, in the same way as they were already being set for adults subject to discretionary life sentences. For juveniles still in detention who had had their tariffs set by the Secretary of State, a transitional scheme would be put in place, under which the Lord Chief Justice would review each case in the light of written representations from the detainee, and make a recommendation regarding the tariff, which the Secretary of State would adopt.

On 11 August 2000 the applicant’s solicitors made representations to the Secretary of State to enable his tariff to be reconsidered by the Lord Chief Justice. It was submitted that the “welfare principle” had never been considered or applied in the setting of the applicant’s original tariff of 18 years, that a tariff of that length was excessive, that it was appropriate to allow a substantial discount in tariff to compensate for the lack of periodic review and that in the applicant’s case it should be set at 12 years. Should this not be accepted, the applicant’s solicitors requested an oral hearing of the case, relying on Article 6 of the Convention and the Court’s case law.

On 27 July 2000 the Lord Chief Justice issued a Practice Statement (Juveniles: Murder Tariff) [2000] 1 WLR 1655), in which he explained the procedure that he proposed to follow when he was undertaking a fresh review of tariffs for persons, such as the applicant, sentenced as juveniles and currently detained at Her Majesty’s pleasure, as well as in fresh cases pending the necessary change in the law:

“Before I make a recommendation to the Home Secretary, in both new and existing cases, I shall invite written representations from the detainees’ legal advisers and also from the Director of Public Prosecutions who may include representations on behalf of victims’ families. ...

Before the first such cases are put before me to make a recommendation to the Home Secretary, it is appropriate for the general principles which will guide me in recommending tariffs to be made public. This is because it is right that the process by which tariffs are set should be open to public scrutiny. When making recommendations to the Home Secretary in such cases, I will announce my reasons in open court after taking into account any written representations I receive.”

No mention was made in this Practice Statement of any provision for the making of oral submissions to the Lord Chief Justice before he made his recommendation to the Home Secretary. On 2 July 2001 the applicant’s solicitors wrote to the Secretary of State, noting with concern that no decision had yet been made in respect of the applicant’s tariff. They said that the delay was adversely affecting the applicant’s progress through the prison system and had direct implications for his potential future release on licence. They asked for confirmation that a decision would be forthcoming immediately, reserving the right to issue proceedings if they did not receive a reply within 21 days.

On 14 August 2001 the Secretary of State sent a memorandum to the applicant stating that the Lord Chief Justice had decided to consider representations from the Crown Prosecution Service on behalf of the victim’s family and enclosing copies of the documents from the Crown Prosecution Service and prison reports that would be before him when he considered the tariff. The applicant was informed that any comments that he or his legal representatives might have on this material or on a report covering his most recent period of imprisonment were to be sent to the Secretary of State within two months.

On 9 November 2001 the applicant’s solicitors submitted further representations to the Secretary of State, including comments on the material appended to the above memorandum, for inclusion with the papers for the Lord Chief Justice. Reference was made to the detailed representations which had previously been made on his behalf and it was again submitted that a tariff period of 12 years was appropriate in his case.

On 29 January 2002 the Lord Chief Justice delivered his decision on the applicant’s tariff and his reason for it in open court. He concluded his statement with these words:

“Although I do not question the tariff which was set, [A.D.] has made significant progress in detention and it is possible to recognise this by reducing the tariff to 16 years.”

On 20 March 2002 the applicant was given a copy of a transcript of this decision and informed that the Secretary of State had accepted the Lord Chief Justice’s recommendation.

On 28 March 2002 the applicant’s solicitors wrote to the Secretary of State expressing their concern at the fact that the issues which they had identified in their representations, concerning in particular the need to take account of future welfare, had not been addressed. No mention was made in this letter of the request that had been made in the original representations for an oral hearing in the event that the applicant’s tariff was not fixed at 12 years. They submitted further representations on the applicant’s behalf on 24 June 2002. By a letter dated 23 August 2002 they were informed that these representations had been rejected.

On 30 October 2002 the applicant was given permission to seek judicial review of the Secretary of State’s decision. It was contended that, in accordance with Article 6 § 1 of the Convention, the applicant was entitled to an oral hearing before his tariff was set and that the advice which had been given to the Secretary of State was defective in that the Lord Chief Justice had failed to have regard to the applicant’s welfare when deciding on the appropriate tariff. There does not appear to have been any complaint under Articles 6 and 14 of the Convention taken together concerning the differences in the procedure applied to adults and juveniles convicted of murder.

On 21 November the Divisional Court held that the Lord Chief Justice had been under no obligation to afford the applicant an oral hearing and, alternatively, that, if he was entitled to an oral hearing, he had waived that entitlement: [2003] EWHC 2797 (Admin). The court also held that the Lord Chief Justice had paid due regard to the applicant’s welfare.

On 11 February 2004 the Court of Appeal, having heard the applicant’s appeal against the decision of the Divisional Court together with an appeal by the Secretary of State in the case of another prisoner detained at Her Majesty’s pleasure, dismissed his appeal: R (Smith) v Secretary of State for the Home Department [2004] EWCA Civ 99. It concluded that the applicant had not waived any right to an oral hearing, but that there was no such right.

The applicant was granted leave to appeal to the House of Lords. In a judgment delivered on 28 July 2005 ([2005] UKHL 52), the House of Lords dismissed the appeal.

Lord Bingham observed that the procedure at issue was no ordinary sentencing exercise. It was procedurally unique, and more closely analogous to an appeal than to a first-instance decision. The applicant’s solicitors had been able to put his case to the Lord Chief Justice and to respond to any adverse points. The Lord Chief Justice could have held a hearing had he deemed it necessary, but if this would not contribute anything of value to the procedure then there were strong administrative reasons not to do so.

Lord Hope observed, first, that the applicant had had a fair and public hearing at his trial. The proceedings now under scrutiny were part of a transitional scheme. This did not involve trying new facts. Rather, the task of the Lord Chief Justice was to decide where on the scale to put the applicant, in light of the going rate for the setting of tariffs for adult murderers, the age of the applicant at the time of the murder, and his progress in custody. It was a highly unusual process that could best be described as one of review. Most of the relevant issues had already been determined before the case came before the Lord Chief Justice, in particular the applicant’s part in the murder. The recommendations of the trial judge and the then Lord Chief Justice, which were based on the evidence led in public at the trial, could not be ignored. The object of the procedure was:

“to review the appellant’s behaviour after conviction, the reports of those who had been responsible for his case at HMP Wandsworth and the representations that had been received from the victim’s family. He also had to review the representations that had been received from the appellant’s solicitors. But it is important to note that he was not being required to make findings of fact based on this material. What he was being required to do was to make an assessment of the extent to which an adjustment of the tariff was needed in the light of these further factors.”

He attached particular importance to the fact that the applicant was not seeking to appear personally before the Lord Chief Justice, but simply requesting that his lawyers be allowed to present their arguments on his behalf orally. Since they had already been given ample opportunity to make their case in writing, he considered it unlikely that an oral hearing would have added anything. All the signs were that it would have been a formality.

In Lord Hope’s view, although the procedure could have been conducted by a High Court judge, there was good reason to entrust the task to the Lord Chief Justice, whose role was to ensure fairness and consistency in the fixing of the minimum periods that life prisoners must serve. He continued:

“The magnitude of the task that he was being asked to perform must not be underestimated. This was [...] a very substantial burden, to be performed in addition to his existing heavy judicial duties as Lord Chief Justice. He had to have regard to the public interest as well as the interests of each detainee, and he had to have regard to the requirement that this exercise had to be carried out within a reasonable time as article 6(1) of the Convention requires. There is no doubt that if he had undertaken to conduct each one of these proceedings orally it would greatly have enlarged his task, and inevitably it would have caused much delay.”

As all the relevant material had been disclosed to the applicant’s lawyers, and sufficient opportunity had been given to make written representations, it had not been shown what good purpose would be served by an oral hearing. The Lord Chief Justice could in any event allow this if he felt it to be necessary. Finally, the public nature of the procedure was ensured by the fact that it was based on a published practice statement, and in every case the Lord Chief Justice personally delivered his decision on the tariff in open court.

The provisions relating to juveniles detained “during Her Majesty’s pleasure” at the time of the applicant’s conviction are set out in T. v. the United Kingdom, cited above, §§ 33-42.

All persons detained on this basis who were sentenced prior to 30 November 2000 became entitled to a fresh review of their tariffs as detailed in Part A above. All such persons who were sentenced on or after 20 November 2000 had their tariff fixed by the trial judge, with an appeal against the tariff period to the Court of Appeal: section 60 of the Criminal Justice and Court Services Act 2000, which inserted section 82A into the Powers of Criminal Court (Sentencing) Act 2000. The current statutory basis for setting of minimum terms of imprisonment for cases of murder is the Criminal Justice Act 2003 (sections 269-277 and Schedules 21 and 22).

The applicant complained under Article 6 of the Convention that sentence had been imposed in his case without there ever having been an oral hearing. He further complained that the tariff was ultimately fixed by the executive, rather than the judiciary.

He also complained under Article 14 that persons convicted of murder committed as adults had the benefit of superior procedural safeguards that were not available to him.

The applicant contended that the absence of an oral hearing before the Lord Chief Justice and the involvement of the Secretary of State in the process violated his right to a fair trial before an independent and impartial tribunal. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

The applicant also relied on Article 14 of the Convention, which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government maintained that the proceedings had been fully compliant with the requirements of Article 6. The applicant had been legally represented, had enjoyed full equality of arms and had had notice of and opportunity to make representations upon all the material that had been taken into consideration. The Lord Chief Justice had followed a procedure that had been publicly announced beforehand in a Practice Statement, and had announced his decision publicly in open court. This procedure could not be compared to a trial at first instance, since the Lord Chief Justice had to take the facts as found by the judge and jury. The nature of the exercise was analogous to an appeal. Article 6 did not entail a right to an oral hearing at every stage of criminal proceedings and appeals might, in certain circumstances, be decided on the basis of the case file alone without infringing the rights of the defence. During the domestic proceedings, the applicant’s solicitors had not been able to point to any matter of fact on which further oral evidence should be heard, or any point that could only have been dealt with in this way. There were good reasons to entrust the task to the Lord Chief Justice, in view of his vast experience in sentencing and unique overview of the entire criminal justice system, which would ensure consistency. The public interest was strongly in favour of the Lord Chief Justice’s review taking place as expeditiously as possible.

Furthermore, the applicant had failed to raise the issue of the independence of the decision-maker before the domestic courts, and so had not exhausted domestic remedies. In any event, as a matter of practical reality the applicant’s tariff had been re-set by the Lord Chief Justice and not by the Secretary of State, who had not exercised any independent decision-making power. This was shown by the fact that it was before the Lord Chief Justice that the applicant had sought an oral hearing, and that it was the former’s decision that was subsequently challenged by judicial review, not the Secretary of State’s.

As regards the complaint of discrimination, the Government argued that this too had not been raised during the domestic proceedings. In any event, there was no material difference between the procedure applicable to adult offenders and that at issue in the present case. To the extent that any difference could be shown between these two groups, the Government argued that these actually favoured the latter.

The applicant submitted that his case was virtually identical, legally and factually, to that examined in Easterbrook v. the United Kingdom, no. 48015/99, 12 June 2003, in which the Court had concluded that the sentencing arrangements were in breach of Article 6 § 1. The re-setting of his tariff was not, as the House of Lords had held, akin to a procedure of appeal or review. Rather, since the exercise had been rendered necessary by the fact that the original procedure was not compatible with Article 6 of the Convention, the Lord Chief Justice had effectively determined sentence de novo. As such, the procedure should be viewed as part of the original criminal proceedings against him and should therefore have made provision for oral representations at a public hearing. The fact that this would have prolonged the procedure and been burdensome for the Lord Chief Justice, who personally considered every such case, was no justification for dispensing with oral argument. Different arrangements could easily have been made.

Regarding the involvement of the Secretary of State, the applicant maintained that no adequate domestic remedy was available for this complaint. He could only have sought a declaration of incompatibility under section 4 of the Human Rights Act, which the Court had found not to be an effective remedy (Burden v. the United Kingdom [GC], no. 13378/05, §§ 40-44, 29 April 2008). He replied to the Government’s argument about the practical reality of the Secretary of State’s role by stressing that, as a matter of law, the tariff was still set by the executive.

As for the different procedure applicable to adults given mandatory life sentences, the applicant noted that it is entirely judicial, and provides them with the possibility of two oral hearings, before the High Court and Court of Appeal. There was no justification for affording lower safeguards to juvenile offenders. If anything, the latter should, on account of their age, enjoy better safeguards.

The Court would first observe that the procedure before the Lord Chief Justice came within the scope of Article 6 § 1, which, in criminal matters, applies to all stages of the proceedings in issue (Easterbrook v. the United Kingdom, no. 48015/99, § 26, 12 June 2003). The applicant has made no complaint about the conduct of his trial in 1993 or the appeal proceedings that were completed the following year. Instead, he contends that the review of his tariff must be seen as closely linked to the original trial, since the sentencing part of it had not been conducted in conformity with the requirements of Article 6. The Court does not accept this argument. The fact that, some years after the applicant’s trial, the Court determined that the sentencing procedure then in force for juveniles convicted of murder violated their Convention rights does not imply that the proceedings against the applicant could no longer be regarded as completed. The Court is persuaded by the analysis of the House of Lords that the transitional procedure announced to Parliament in March 2000 is to be regarded as akin to a review or an appeal. It recalls that the manner of application of Article 6 to appellate proceedings, or similar, depends on their special features; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see Bazo González v. Spain, no. 30643/04, § 30, 16 December 2008, also Hermi v. Italy [GC], no. 18114/02, § 60, ECHR 2006 ...). Where a hearing has been held at first instance, the absence of such a hearing may be justified at the appeal stage by the special features of the proceedings at issue, having regard to the nature of the domestic appeal system, the scope of the appellate court’s powers and to the manner in which the applicant’s interests were actually presented and protected before the court of appeal, particularly in the light of the nature of the issues to be decided by it (Botten v. Norway, 19 February 1996, § 39, Reports of Judgments and Decisions 1996 I).

The procedure before the Lord Chief Justice did not touch upon the issue of the applicant’s guilt or innocence (see, a contrario, Dondarini v. San Marino, no. 50545/99, § 28, 6 July 2004). Nor did it disregard the judicial assessment made at that time of what the appropriate tariff should be; this had to be taken into consideration. Rather, the question for the Lord Chief Justice was whether, in light of a series of relevant considerations, including reports on the applicant’s progress while imprisoned, the original tariff should be revised. As Lord Hope noted, this did not involve a finding of fact, but an assessment of whether the applicant’s punishment was at an appropriate place on the scale. The power conferred on the Lord Chief Justice was therefore a narrow one. Yet as it bore upon a matter that was obviously of considerable importance for the applicant, he had to have the possibility of protecting his interests in the procedure so as to ensure the overall fairness of the proceedings against him taken as a whole. The Court does not see that the absence of an oral hearing impeded or disadvantaged the applicant in any way. All the material relevant to the Lord Chief Justice’s consideration of the tariff was disclosed to the applicant’s lawyers, who had sufficient opportunity to reply to it as well as to argue in favour of a shorter tariff. The applicant did not seek to appear personally before the Lord Chief Justice, and the latter, although having the power to do so, did not find it necessary to hear the applicant in person. In such circumstances, it does not appear that an oral hearing would have strengthened the applicant’s case.

In determining whether the overarching principle of fairness embodied in Article 6 has been respected, other relevant considerations are to be taken into account. These include the importance of the large group of cases concerned being dealt with within a reasonable time by the Lord Chief Justice, who had many other demanding judicial duties to attend to. While the applicant has argued that other arrangements could have been made so as to strike a different balance between efficiency and procedural safeguards, the Court does not find that the transitional scheme is open to criticism in this respect. The Court further notes that the public nature of the procedure was adequately ensured by the explanation set out in the Practice Statement and by the fact that the Lord Chief Justice announced his decision in person in open court.

The above considerations lead the Court to conclude that the absence of an oral hearing before the Lord Chief Justice did not render the criminal proceedings against the applicant unfair.

It follows that this complaint must be rejected as being manifestly ill founded pursuant to Article 35 §§ 3 and 4 of the Convention.

The Government have argued that the applicant failed to raise the issue of the involvement of the Secretary of State in the procedure as well as his complaint of discrimination. The Court will leave the question of exhaustion of domestic remedies open, since it finds the complaints inadmissible in any event. Regarding the first issue, the Court would observe that the applicant’s situation is to be distinguished from that examined in the Easterbrook case, where it found that the role of the Secretary of State offended against the fundamental principle of the separation of powers (at § 28). The present case differs in that the Secretary of State’s involvement in the exercise was no more than a formality. It was, in reality, the Lord Chief Justice, the most senior judge in England and Wales, who conducted the exercise. In keeping with the procedure, his recommendation was accepted by the Secretary of State. The applicant’s right to an independent and impartial tribunal has not therefore been violated.

Regarding the issue of discrimination, the material before the Court does not disclose any appearance of a violation of Article 14.

It follows that these complaints too must be rejected as being manifestly ill founded pursuant to Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> A.D. v the United Kingdom - 39586/05 [2009] ECHR 1308 (25 August 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1308.html Cite as: [2009] ECHR 1308