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)
12. The Court has distinguished between bodies making administrative and disciplinary decisions of the character just considered and what it has called "courts of the classic kind", "integrated within the standard judicial machinery of the country", and has described a criminal court as "a proper court in both the formal and the substantive meaning of the term": De Cubber v Belgium (1984) 7 EHRR 236, 248, paragraph 32. Such a court must be independent (Findlay v United Kingdom (1997) 24 EHRR 221) and it must be, and appear to be, impartial, in the subjective and objective senses defined by the Court (De Cubber, 7 EHRR 236, 243-246, paras 24-30). The Court has given guidance on some of the main constituent elements of a fair criminal trial. Thus, in Colozza v Italy (1985) 7 EHRR 516, 523, para 27, it said that:
An adversarial procedure, with equality of arms and proper disclosure between prosecution and defence, has similarly been seen as fundamental to the fairness of a criminal trial (IJL, GMR and AKP v United Kingdom (2000) 33 EHRR 225, 254, para 112).
13. In non-criminal cases such as Le Compte and Albert, above, the Court has attached very considerable importance to the article 6 requirement that the hearing be in public. In criminal cases this requirement is no less important. In Riepan v Austria Reports of Judgments and Decisions 2000-XII, para 27 the Court reiterated:
Just as criminal trials of the classic kind must be before independent and impartial tribunals (De Cubber, 7 EHRR 236, 248-249, paras 32-33; Findlay, 24 EHRR 221, 246, para 79), so do they require "the same kind of fundamental guarantee in the form of publicity" (Riepan, para 40). The Court has held that the entitlement to a public hearing ordinarily implies a right to an oral hearing (Göç v Turkey Reports of Judgments and Decisions 2002-V, p 193, para 47; Döry v Sweden 12 February 2003 para 37), although this is a right which may be waived and there may be exceptional circumstances that justify dispensing with such a hearing (ibid). According to the dissenting minority in Göç, the Court's case law lays down three criteria for determining whether there are "exceptional circumstances" which justify dispensing with a public hearing:
Article 6(1) primarily concerns courts of first instance (De Cubber p 248, para 32), and it is clearly applicable to the imposition of sentence (Findlay, p 243, para 69). The Convention jurisprudence would appear to support the respondent's contention that an oral hearing should, where fairness requires it, be held before a minimum term is set for an existing prisoner such as the respondent, and thus to show that paragraph 11(1) of Schedule 22 is incompatible with the Convention.
14. As in the administrative and disciplinary cases considered above, however, the Court, reviewing the overall fairness of the proceedings in question, has not held that a violation of an article 6 requirement at an early stage of criminal proceedings is necessarily irremediable. In Adolf v Austria 4 EHRR 313 the presumption of the applicant's innocence was infringed by a lower court, but this was held to be fully remedied by the decision of a higher court. In Edwards v United Kingdom 15 EHRR 417 the prosecution failed to make proper disclosure at trial, but its failure was remedied by a full hearing in the Court of Appeal. As it was put in Kyprianou v Cyprus (Application No 73797/01) (unreported) 27 January 2004, para 43:
15. The circumstances in which a higher tribunal may make reparation for an initial violation of the Convention at a lower level have been identified by the Court in a number of cases. Thus in De Cubber the defect related to the impartiality of the first instance court and (7 EHRR 236, 249, para 33) it was held that:
In Colozza v Italy 7 EHRR 516, 525, para 31-32 the Convention was violated by a court's trial of the applicant in his absence without notice to him, and this was never redressed by the higher courts since his case:
In Findlay 24 EHRR 221, 246, para 79, the court-martial's lack of independence could not be corrected by any subsequent review proceedings. It was noted in Twalib v Greece that there were (33 EHRR 584, 604, para 40) "serious shortcomings in the fairness of the proceedings at first instance", which were partly remedied on appeal, but not wholly, since the applicant was obliged to be legally represented in the Court of Cassation, he had no means to pay for legal representation and legal aid was unavailable. In Rowe and Davis v United Kingdom 30 EHRR 1, unlike Edwards v United Kingdom 15 EHRR 417, a prosecution failure to make full disclosure at trial was not remedied by review in the Court of Appeal, which lacked the trial judge's ability to assess and monitor the evidence. It was held in Riepan v Austria that the lack of publicity at first instance could not be remedied by anything less than a complete re-hearing before the appellate court, which had not occurred. In Condron v United Kingdom (2001) 31 EHRR 1, a trial judge's failure to direct the jury adequately on the drawing of inferences from the applicants' silence was not remedied by a subsequent hearing in the Court of Appeal: the Court of Appeal was concerned with the safety of the applicants' convictions, not with whether they had in the circumstances received a fair trial, and (p 24, para 65):
In Kyprianou v Cyprus, 27 January 2004, where the applicant's complaint related to the independence and impartiality of the first instance court, the defect was not remedied by review of the decision by the Supreme Court. It was held (para 44):
16. It is plain beyond argument that the imposition of sentence at first instance is part of a criminal trial and ought in any ordinary case to take place in public at a hearing at which the defendant is present and represented and able to participate. That is a basic condition of fairness. I am prepared to accept, in agreement with counsel and the Divisional Court, that in the unique situation addressed by paragraphs 3 and 6 of Schedule 22, fairness will not, in many cases, require an oral hearing, to which many existing prisoners may in any event waive their right. In those cases where fairness does require an oral hearing, however, and the respondent's case may or may not be one such, it seems to me that paragraph 11(1), in precluding the possibility of an oral hearing at first instance, is incompatible with the Convention. I would accept that there might be cases in which the Court, reviewing the course of proceedings retrospectively to assess their overall fairness, might hold that a hearing in the Court of Appeal had remedied the lack of an oral hearing at first instance and that there had, in the event, been no violation. But even if that were an inevitable result I doubt if it would entitle one to regard paragraph 11(1) as compatible, and in my view there are a number of reasons why such a result is by no means inevitable. First, there would be no oral hearing at all unless leave to appeal were granted, and it might or might not be granted. Secondly, the ordinary grounds for granting leave to appeal against sentence are that a sentence is manifestly excessive or wrong in principle. It must be very doubtful, given the express terms of paragraph 11(1), that leave could or would be given on the ground that denial of an oral hearing was unfair. Thirdly, the Court of Appeal would be concerned to resolve whether the term imposed by the judge was manifestly excessive or wrong in principle. It would not focus its attention on the fairness of the procedure, mandated by statute, by which the term had been determined. It could not quash the determination on grounds of unfairness, nor remit the case to a High Court judge with jurisdiction to remedy the previous unfairness by holding an oral hearing. Fourthly, the function of the Court of Appeal on hearing sentence appeals is not to conduct a hearing de novo. It is a court of review. It gives weight to the order made at first instance, and substitutes its own decision only if persuaded that the first instance decision is erroneous to a significant extent. Fifthly, the prisoner loses what the Convention, combined with domestic law, should afford him: an oral hearing before the term is determined and the opportunity, if arguable grounds of appeal are shown, to challenge that determination at an oral appellate hearing. Where a prisoner faces the prospect of imprisonment for the whole of his life (Schedule 21 to the 2003 Act, paragraph 4(1)) or for a very lengthy period (paragraph 5(1)) and fairness requires an oral hearing, this is not an entitlement of which he should be lightly deprived.
17. I agree with the Divisional Court that paragraph 11(1) is incompatible with the Convention. The Secretary of State expressly accepted that, if the House reached that conclusion, paragraph 11(1) should be read subject to an implied condition that the High Court judge has the discretion to order an oral hearing, where such hearing is required to comply with a prisoner's rights under article 6(1) of the Convention. Thus the discretion may be exercised when, and only when, an oral hearing is necessary to meet the requirement of fairness. Thus no argument was addressed to the scope of the interpretative duty imposed by section 3 of the 1998 Act, and it is unnecessary to form an opinion whether the Divisional Court's interpolation, if challenged, would be sustainable.
18. For these reasons, and those given by my noble and learned friends Lord Hoffmann and Lord Brown of Eaton-under-Heywood, I would dismiss this appeal.
19. In R (Anderson) v Secretary of State for the Home Department  1 AC 837 this House decided that the law by which the Home Secretary had the power to determine the minimum period of a mandatory life sentence which had to be served before a prisoner was eligible for release on licence was incompatible with the principle of the separation of powers as expressed in article 6 of the European Convention on Human Rights. In response to this decision, Parliament passed section 269 of the Criminal Justice Act 2003 which, in respect of offences committed on or after the date upon which it came into force (18 December 2003), transferred the power to the trial judge.
20. Schedule 22 to the 2003 Act contains transitional provisions for prisoners who had committed offences before the commencement date for which, on conviction, they were liable to a mandatory life sentence. They fall into three categories: (1) those whose minimum periods had already been fixed and notified to them by the Home Secretary (2) those who had been sentenced but not yet notified of their minimum periods (3) those who had not yet been sentenced. This appeal is concerned with the second category.
21. Paragraph 6 of the Schedule requires that in the case of a prisoner in the second category, the Home Secretary must refer his case to the High Court to fix the minimum period. Thus the new procedure satisfies the principle of the separation of powers which was infringed in the Anderson case. But paragraph 11 of the Schedule provides that the reference is to be determined "by a single judge of the High Court without an oral hearing". The question in this appeal is whether this procedure does not infringe another requirement of justice, namely that it should be done in public.
22. The Anderson case decided that the determination of the minimum period forms part of the process of sentencing. That is why it is a matter for the judicial rather than the executive branch of government. The same reasoning leads to the conclusion that it is part of the trial and that the accused is prima facie entitled to a public hearing not only on the question of his guilt or innocence but also, when convicted, on the determination of his sentence. I say prima facie because it is accepted there may be exceptional cases in which no public hearing is required. Cases of references under paragraph 6 will often be exceptional in this way because there may already have been an opportunity for the prisoner's counsel to address the judge in mitigation before he recommended a minimum term to the Home Secretary and a further oral hearing would serve no purpose. But Mr Crow, who appeared on behalf of the Home Secretary, accepted that there could be cases in which justice required an oral hearing but paragraph 11(1) did not allow it.
23. Mr Crow submits, however, that the absence of an oral hearing before the determination of sentence can be put right by an appeal. If the prisoner appeals against the length of the minimum sentence, he will be given an oral hearing in the Court of Appeal. The court will even be able to allow him to adduce fresh evidence if it considers it appropriate to do so. In that way he will achieve an oral hearing and, taking the proceedings before the judge and the Court of Appeal together, he will have had a public hearing before his sentence is finally determined. This, says Mr Crow, should satisfy the Strasbourg court that United Kingdom law complies with article 6.
24. The Divisional Court did not think that this was right and nor do I. The hearing before the judge and the hearing in the Court of Appeal have different functions. The function of the judge is to determine the minimum period. The function of the Court of Appeal is to decide whether the sentence was one which the judge could lawfully and properly impose. In the case of a prisoner who says that justice demanded that his minimum period should not have been fixed without an oral hearing, his complaint is not primarily that the judge has imposed too long a sentence. He is saying that the judge should not have imposed any sentence without giving him an oral hearing. No doubt he hoped that if there had been an oral hearing, he would have been given a shorter sentence. But his challenge is to the procedure and not to the substantive decision. If this complaint is a good one, it is hard to see how matters can be mended by the fact that the prisoner had an oral hearing in the Court of Appeal. The only way to give him the hearing to which he was entitled would be to remit the matter for an oral hearing before the judge. But that would be precluded by paragraph 11(1) and in any case the Court of Appeal has no power to remit the question of sentence to the judge.
25. Such a conclusion seems to me in accordance with the Strasbourg jurisprudence. In Riepan v Austria Reports of Judgments and Decisions 2000-XII the applicant had been convicted of a criminal offence at a private hearing within the prison in which he was serving a sentence for earlier crimes. He appealed to the Court of Appeal, where a public hearing took place but his appeal was dismissed. The European Court said (at para 40) that it had in earlier decisions rejected the submission that in ordinary criminal proceedings a defect at first instance in the "tribunal's independence and impartiality" could be remedied at a later stage: see De Cubber v Belgium (1984) 7 EHRR 236; Findlay v United Kingdom (1997) 24 EHRR 221. The accused was entitled to "a first-instance tribunal that fully met the requirements of article 6.1". It went on to say:
26. This case is in my opinion a rejection of Mr Crow's submission. It is necessary, however, to distinguish two lines of the authority in which the Strasbourg court has held that deficiencies in the trial process may be remedied by the proceedings on appeal. The first concerns cases in which the irregularities at the trial have not related to fundamental questions such as the impartiality of the tribunal or the public character of the hearing but rather to matters affecting the accuracy of the decision. Thus in Edwards v United Kingdom (1992) 15 EHRR 417 the prosecution had failed to disclose to the applicant, before his trial and conviction for robbery and burglary, that the fingerprints of a neighbour had been found at the premises and that one of the victims who had caught a fleeting glimpse of the burglar had then failed to identify him in an album of police photographs. The Court of Appeal said that there had been some "slipshod police work" but that it was satisfied that disclosure would have made no difference to the outcome and that the convictions were safe. The Strasbourg court said that although there had been a defect in the trial proceedings, it was remedied by the subsequent procedure in the Court of Appeal. The Court of Appeal made a fair examination of whether the non-disclosure had mattered and came to the conclusion that it did not. Such a case is obviously very different from one in which the first instance procedure is fundamentally flawed.
27. The other cases which must be distinguished are those in which article 6 has been held to apply to administrative and disciplinary decisions. The doctrinal peculiarities of this jurisprudence have been discussed in R (Alconbury Developments Ltd v Secretary of State for the Environment, Transport and the Regions  2 AC 295 and Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening)  2 AC 430. They arise from the fact that although one of the main purposes of article 6 is to maintain the principle of the separation of powers and the basic principles of justice which must be observed by the judicial branch of government, the Strasbourg court has held the article applicable to executive and domestic decisions as well. The position which the court has now reached could be equally well expressed by saying that executive and domestic decisions are not subject to article 6 but that (1) there must be adequate judicial review of such decisions and (2) article 6 applies to the proceedings for judicial review. This is not, however, the way the court has chosen to express itself. It says that, in principle, administrative and disciplinary decisions are subject to article 6, but that the most fundamental requirements of article 6 may be omitted (such as the impartiality of the tribunal and the public nature of the hearing) provided that (1) there is adequate judicial review and (2) the proceedings for judicial review comply with article 6. Mr Crow is therefore right to say that in these cases a right of appeal or review can make up for a fundamental failure of the first decision-maker to comply with article 6. But this doctrine is confined to administrative and disciplinary cases in which the principle of the separation of powers does not require the decision to be made by the judicial branch of government. It has no application to what the European Court in Riepan v Austria (at para 40) called "proceedings before courts of a classic kind".
28. There is one more curious feature of the Strasbourg jurisprudence to which I would draw attention. The court has always held that the terms "determination of civil rights and obligations" or of a "criminal charge" have an "autonomous" meaning applicable to all Member States, whether or not the domestic law would regard the proceedings as falling within one or other of those descriptions. But in De Cubber v Belgium 7 EHRR 236, para 32 the court appeared to be saying that the question of whether article 6 applied with full force or in the attenuated form in which it is applied to administrative decisions or domestic tribunals depends upon whether the domestic law would regard the case as ordinary civil or criminal proceedings appropriate for decision by the judicial branch of government. This criterion has been repeated in subsequent cases: see, for example, Riepan at para 40. But I must respectfully say that I find it illogical to look to domestic law on this point. The preservation of the principle of the separation of powers is a fundamental purpose of article 6 and it would be strange if a Member State could avoid the full requirements applicable to "classic" judicial proceedings by characterising the relevant decision in domestic law as "administrative". The questions of whether article 6 applies in full strength, in attenuated form, or not at all, should each receive answers founded on autonomous principles.
29. It follows that paragraph 11(1), in excluding the possibility of an oral hearing, is incompatible with Convention rights. The Divisional Court decided that the incompatibility could be removed by construing the sub-paragraph, pursuant to section 3 of the 1998 Act, to be subject to an implied qualification which gives the High Court a discretion to order an oral hearing when this is necessary to satisfy the prisoner's rights under article 6. Neither side challenged this proposition and your Lordships are therefore not asked to decide whether such a bold exercise in "interpretation" is permissible. For these reasons, as well as those of my noble and learned friends, Lord Bingham of Cornhill and Lord Brown of Eaton-under-Heywood, I would dismiss the appeal.
LORD RODGER OF EARLSFERRY
30. I agree with my noble and learned friends that, for the reasons that they give, the appeal should be dismissed. Since the point was not argued, however, I am not to be taken as holding that section 3 of the Human Rights Act 1998 was warrant for the interpretation of paragraph 11(1) of Schedule 22 to the Criminal Justice Act 2003 adopted by the Divisional Court.
31. In terms of article 6(1) of the European Convention a state party guarantees that, in the determination of any criminal charge against him, everyone is entitled to a fair and public hearing by an independent and impartial tribunal "as a matter of fairness": Monnell and Morris v United Kingdom (1988) 10 EHRR 205, 225, para 67. It is the right to the public hearing that involves the right to an oral hearing. The Secretary of State accepts that the guarantee applies to the determination and imposition of sentence. This is hardly surprising since sentencing in secret is one of the most obvious and dangerous abuses that article 6 is designed to root out. So "article 6(1) concerns primarily courts of first instance" (De Cubber v Belgium (1984) 7 EHRR 236, 248, para 32) and in a normal criminal case the accused is entitled to a first instance tribunal that fully meets the requirements of article 6(1) in the form of publicity (Riepan v Austria Reports of Judgments and Decisions 2000-XII, para 40). The Secretary of State's argument that the lack of an oral hearing in a first instance criminal trial can be made good by an appeal hearing in public must therefore be rejected as inconsistent with both principle and authority.
32. It appears that the respondent is actually now seeking to pursue an appeal against conviction. But at the stage when the case was heard by the Divisional Court he had indicated that he would wish the High Court judge, when setting the minimum term, to consider evidence, including his own oral evidence, about his involvement in the killing of which he had been convicted, since at the trial he had denied any such involvement. The predicament of an accused who has denied being involved in the offence before the jury return their verdict but then wishes to advance submissions about the circumstances in mitigation of sentence is unenviable but not unfamiliar. Perhaps because the respondent said that he wished to lead evidence, in the hearing of the appeal frequent reference was made to an oral hearing as an opportunity for witnesses to give oral evidence and, indeed, to the possibility of the Court of Appeal hearing such evidence. In the British systems oral evidence is, of course, at the forefront, but in other systems to which article 6 applies it plays a less prominent role. Nor is article 6 concerned with the form of the evidence, but rather with securing that the procedure is "adversarial" in the sense that the evidence should be produced in the presence of the accused at a public hearing "with a view to adversarial argument": Riepan, para 40. In other words, the defence should have the opportunity at a public hearing to put the accused's position and to challenge the evidence advanced against him.