FOURTH SECTION
Application no. 39586/05
by Anthony DUDSON
against the United Kingdom
lodged on 4 November 2005

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Anthony Dudson, is a British national who was born in 1976 and is detained in Cambridgeshire. He is represented before the Court by Mr S. Creighton, Bhatt Murphy Solicitors, London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 17 December 1993 the applicant, 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 brutally killed. The applicant was 16 years old at the time of the offence, so he was sentenced to be detained during Her Majesty's pleasure under section 53(1) of the Children and Young Persons Act 1933 (see below).
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 that he had played an active part in the torture and the killing. Having recommended a tariff of 25 years in the case of 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 these recommendations, observing that this was an exceptionally grave case. They were accepted by the Secretary of State, who then 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 should not be set 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 was put in place, whereby the Lord Chief Justice would review each case, in the light of written representations from the detainee, and make a recommendation to the Secretary of State, who would adopt the recommended tariff.
On 11 August 2000 the applicant's solicitors submitted 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. In the concluding paragraph of this document the following points were made:
“If it is not accepted that a tariff of 12 years is appropriate in the present case, it is submitted that Mr Dudson should be afforded an oral hearing of his case under the requirements of article 6 of the European Convention on Human Rights. It has already been established by the European Court that the fixing of tariff for an HMP detainee is a sentencing exercise which attracts the safeguards of article 6. The European Court has previously held that the fixing of sentence is an integral part of the trial process and as such, that it requires an oral hearing. ... This also requires that the sentence be fixed within a reasonable period of time after trial. In the event that Mr Dudson's tariff is not fixed at 12 years and he is not afforded an oral hearing, we reserve the right to challenge the procedural aspects of this matter as well as the substantive level at which his tariff is set.”
On 27 July 2000 the Lord Chief Justice issued a practice statement, 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 those people such as the applicant, sentenced as juveniles, who were currently detained at Her Majesty's pleasure and 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 hear from him within the next 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 in his case and enclosing copies of the documents from the Crown Prosecution Service that would be before him when he considered his tariff. Copies were attached of prison reports which the Lord Chief Justice would have before him. He was told 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 of the date of that memorandum.
On 9 November 2001 the applicant's solicitors submitted further representations to the Secretary of State for inclusion with the papers for the Lord Chief Justice. They said that the applicant wished them to be considered in conjunction with those which had previously been submitted on his behalf in August 2000. They contained various comments on the statements made by the members of the victim's family and in the prison reports. Reference was made to the detailed representations which had previously been made on his behalf. It was again submitted that a tariff period of 12 years was appropriate in his case. Receipt of these further submissions was acknowledged in a reply dated 13 November 2001, in which it was stated that the Lord Chief Justice would give full consideration to the applicant's case as soon as possible and that the applicant would be informed of his decision in due course. No mention was made in this reply of any provision for an oral hearing, nor was any further request made for one either by the applicant or by his solicitors.
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, Dudson 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 procedural issues which they had identified in their representations had not been addressed. The issues to which they drew attention related to the way in which the welfare principle should be addressed, and in particular to the need to take account of future welfare. 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 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 the House of Lords dismissed the appeal, for the following reasons [2005] UKHL 52:
“What is at issue is the general right to a 'fair and public hearing' in article 6(1). There is no absolute right to a public hearing at every stage in the proceedings at which the applicant or his representatives are heard orally. The application of the article to proceedings other than at first instance depends on the special features of the proceedings in question. Account must be taken of the entirety of the proceedings of which they form part, including those at first instance. Account must also be taken of the role of the person or person conducting the proceedings that are in question, the nature of the system within which they are being conducted and the scope of the powers that are being exercised. The overriding question, which is essentially a practical one as it depends on the facts of each case, is whether the issues that had to be dealt with at the stage could properly, as a matter of fair trial, be determined without hearing the applicant orally. ...
[The applicant's counsel] laid much stress on the fact that the setting of the applicant's tariff was part of the sentencing process and that there had been no oral hearing as to this matter under the defective procedure under which it was originally set by the Home Secretary. ... It was a fresh exercise which involved the scrutiny by the Lord Chief Justice of new material which had not previously been taken into account by the judiciary. The Strasbourg case law to the effect that the application of article 6(1) depended upon the special features of the proceedings assumed that there had been a satisfactory examination of the case at first instance. That was not what had occurred here.
On the other hand, looking to the stage that had been reached in the sentencing process by the time of the review by [the Lord Chief Justice], it is clear that most of the issues which were relevant had already been determined at the trial. No challenge was being made to the assessment by [the trial judge] of the part which the applicant had played in the murder. His determination of the length of the detention that was necessary to meet the requirements of retribution and general deterrence in the applicant's case, and [the former Lord Chief Justice's 1994] agreement with his recommendation in what he described as an exceptionally grave case, could not be ignored by [the Lord Chief Justice in 2002]. These views had been formed in the light of the evidence which had been led in public at the trial. The issues which [the Lord Chief Justice] was being required to determine now were not, of course, confined to a fresh assessment of the extent of the applicant's criminality. He had to review the applicant's behaviour after conviction, the reports of those who had been responsible for his case [in prison] 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 applicant'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.
It is not obvious, given the comparatively limited nature of this exercise, that an oral hearing was needed to equip the Lord Chief Justice with the information that he needed for the proper conduct of this exercise. I would attach particular importance to the fact that it was not suggested by the applicant's solicitors that an oral hearing was required so that the applicant could appear in person before the Lord Chief Justice and give evidence. The request for an oral hearing was made solely on the ground that this procedure was a normal part of the sentencing exercise. [The applicant's counsel] did not dispute that its sole purpose was to enable the applicant's solicitors to make oral representations on his behalf. But they had been given an ample opportunity to submit these representations in writing, so it is unlikely that any information that they would have been able to provide at an oral hearing would have added anything. This is not a situation where procedural fairness required there to be an oral hearing before a final decision was made ... All the signs are that an oral hearing in this case would have been a formality.
Account must also be taken of the nature of the procedure that the Secretary of State had devised for dealing with those persons who had already been sentenced as juveniles. As he told Parliament on 13 March 2000, there were already about 250 such detainees, with the possibility of more cases going through the courts before the necessary changes in the law could be introduced. He had decided that the review in these cases should be conducted by the Lord Chief Justice. He could have decided that they should be dealt with instead by a High Court judge, at least in the first instance. But there were very good reasons for preferring that this exercise should be conducted by the Lord Chief Justice himself, in view of the central role which he plays in the maintenance of fairness and consistency when the minimum periods that life prisoners must serve in custody are being fixed.
The essential task for the Lord Chief Justice was to determine, in the light of his experience, where on the scale each one of these detainees should be placed in the light of the particular facts of each case. 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. Moreover it has not been shown that any good purpose would have been served by adopting this procedure generally, as all relevant material was being disclosed and a sufficient opportunity was being given for representations to be made in writing. It was, of course, open to him to ask for an oral hearing in a particular case if, in the light of his experience, he thought that this was necessary. The requirement that the matter should be dealt with in public was served by the issuing of the practice statement which explained the procedure that was to be adopted, and by the fact that the decisions on the tariff in each case were delivered by the Lord Chief Justice himself in open court.”
B.  Relevant domestic law and practice
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 [GC], cited above, §§ 33-42.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that (1) the tariff element of his sentence of imprisonment was imposed without there ever having been an oral hearing; and (2) the tariff was ultimately imposed by the Secretary of State, albeit following the recommendation of the Lord Chief Justice. Finally, the applicant complains under Articles 6 § 1 and 14 together that adults convicted of murder who have had their tariffs reset by the judiciary have been given additional safeguards which do not apply to juveniles, principally the right of consideration by a High Court judge with a right of appeal to the Court of Appeal.

QUESTION TO THE PARTIES

In the fixing of the tariff of his imprisonment, did the applicant have the benefit of “a fair and public hearing ... by an independent and impartial tribunal”? Has there been a breach of Article 6 § 1 in this case ?