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Domestic law may however fail to reflect fully the requirements of the Convention. Ratio |
In that situation, it has always been open to Parliament to legislate in order to fulfil the United Kingdoms international obligations; as it has done, for example, in response to judgments of the European court concerning the application of article 5(4). Ratio |
The courts have also been able to take account of those obligations in the development of the common law and in the interpretation of legislation. Ratio |
The Human Rights Act has however given domestic effect, for the purposes of the Act, to the guarantees described as Convention rights. Ratio |
It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so. Ratio |
The Act also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. Ratio |
The importance of the Act is unquestionable. Ratio |
It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Ratio |
Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate. Ratio |
That approach is now well established. PRE |
A few examples may be given. PRE |
In R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 a policy that prisoners should be absent from their cells while they were being searched for contraband, as applied to a prisoner who had correspondence with his solicitor in his cell, was held to be unlawful on the ground that it ... |
Lord Bingham of Cornhill noted in the final paragraph of his speech that that result was compatible with article 8 of the Convention. PRE |
In that regard he adopted the observations of Lord Cooke of Thorndon, who said (para 30): It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advi... |
Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. PRE |
Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. PRE |
The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. PRE |
Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them. PRE |
When the House of Lords considered in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 the circumstances in which determinate sentence prisoners recalled to prison were entitled to an oral hearing before the board, it took the common law as its starting point, and considered judgments of the European court, toge... |
It went on to hold that the boards review of the prisoners case would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the common law requirements of procedural fairness. PRE |
That decision is of obvious relevance to the present appeals. PRE |
Similarly, when the House of Lords rejected the admission of evidence obtained by torture, it did so on the basis of the common law: A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221. PRE |
Lord Bingham observed at para 51 that English common law had regarded torture and its fruits with abhorrence for over 500 years, and concluded at para 52 that the principles of the common law, standing alone, compelled the exclusion of third party torture evidence. PRE |
He noted that that was consistent with the Convention. PRE |
More recently, the importance of the continuing development of the common law, in areas falling within the scope of the Convention guarantees, was emphasised by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618. PRE |
The case concerned access by the Press to documents referred to in court, and was decided on the basis of the common law, including authorities from other jurisdictions, rather than on the basis of article 10 of the Convention. PRE |
Toulson LJ, with whose reasoning the other members of the court agreed, stated at para 88: The development of the common law did not come to an end on the passing of the Human Rights Act 1998 . PRE |
It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. PRE |
This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere. PRE |
Finally, in this connection, in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157, para 29, the ordinary approach to the relationship between domestic law and the Convention was described as being that the courts endeavour to apply and if need be develop the common law, and interpret and a... |
Against the background of those authorities, the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Ratio |
Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. Ratio |
As Lord Justice-General Rodger once observed, it would be wrong to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply (HM Advocate v Montgomery 2000 JC 111, 117). Ratio |
Procedural fairness at common law three preliminary matters Ratio |
Following the approach I have described, it is necessary to begin by considering the practice followed by the board in the light of domestic principles of procedural fairness. Ratio |
In doing so, it may be helpful to clarify three matters at the outset. Ratio |
The first matter concerns the role of the court when considering whether a fair procedure was followed by a decision-making body such as the board. Ratio |
In the case of the appellant Osborn, Langstaff J refused the application for judicial review on the ground that the reasons given for refusal [to hold an oral hearing] are not irrational, unlawful nor wholly unreasonable (para 38). Ratio |
In the case of the appellant Reilly, the Court of Appeal in Northern Ireland stated at para 42: Ultimately the question whether procedural fairness requires their deliberations to include an oral hearing must be a matter of judgment for the Parole Board. Ratio |
These dicta might be read as suggesting that the question whether procedural fairness requires an oral hearing is a matter of judgment for the board, reviewable by the court only on Wednesbury grounds. Ratio |
That is not correct. Ratio |
The court must determine for itself whether a fair procedure was followed (Gillies v Secretary of State for Work and Pensions [2006] UKHL 2; 2006 SC (HL) 71; [2006] 1 WLR 781, para 6 per Lord Hope of Craighead). Ratio |
Its function is not merely to review the reasonableness of the decision-makers judgment of what fairness required. Ratio |
The second matter to be clarified concerns the purpose of procedural fairness. Ratio |
In the case of the appellant Osborn, Langstaff J stated at para 6 that in determining whether an oral hearing was necessary, what fell to be considered was the extent to which an oral hearing would guarantee better decision making in terms of the uncovering of facts, the resolution of issues and the concerns of the dec... |
In the Court of Appeal, Carnwath LJ interpreted Lord Binghams speech in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 as implying that the underlying rationale of procedural fairness at common law was one in which the emphasis is on the utility of the oral procedure in assisting in the resolution of the issue... |
There is no doubt that one of the virtues of procedurally fair decision- making is that it is liable to result in better decisions, by ensuring that the decision- maker receives all relevant information and that it is properly tested. Ratio |
As Lord Hoffmann observed however in Secretary of State for the Home Department v (AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 72, the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision. Ratio |
At least two other important values are also engaged. Ratio |
The first was described by Lord Hoffmann (ibid) as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. Ratio |
I would prefer to consider first the reason for that sense of injustice, namely that justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Ratio |
Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken. Ratio |
As Jeremy Waldron has written (How Law Protects Dignity [2012] CLJ 200, 210): Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. Ratio |
It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. Ratio |
As such it embodies a crucial dignitarian idea respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves. Ratio |
This point can be illustrated by Byles Js citation in Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 195 of a dictum of Fortescue J in Dr Bentleys Case (R v Chancellor of Cambridge, Ex p Bentley (1748) 2 Ld Raym 1334): The laws of God and man both give the party an opportunity to make his defence, if he has ... |
I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. PRE |
The point of the dictum, as Lord Hoffmann explained in AF (No 3) at para 72, is that Adam was allowed a hearing notwithstanding that God, being omniscient, did not require to hear him in order to improve the quality of His decision-making. PRE |
As Byles J observed (ibid), the language used by Fortescue J is somewhat quaint, but has been the law from that time to the present. PRE |
This aspect of fairness in decision-making has practical consequences of the kind to which Lord Hoffmann referred. Ratio |
Courts have recognised what Lord Phillips of Worth Matravers described as the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269,... |
In the present context, research has established the importance attached by prisoners to a process of risk assessment which provides for their contribution to the process (see Attrill and Liell, Offenders Views on Risk Assessment, in Who to Release? Parole, Fairness and Criminal Justice (2007), ed Padfield). Ratio |
Other research reveals the frustration, anger and despair felt by prisoners who perceive the boards procedures as unfair, and the impact of those feelings upon their motivation and respect for authority (see Padfield, Understanding Recall 2011, University of Cambridge Faculty of Law Research Paper No 2/2013 (2013)). Ra... |
The potential implications for the prospects of rehabilitation, and ultimately for public safety, are evident. Ratio |
The second value is the rule of law. Ratio |
Procedural requirements that decision- makers should listen to persons who have something relevant to say promote congruence between the actions of decision-makers and the law which should govern their actions (see eg Fuller, The Morality of Law, revised ed (1969), p 81, and Bingham, The Rule of Law (2010), chapter 6).... |
The third matter to be clarified concerns the cost of oral hearings: a consideration which appears to have underlain some of the changes to the rules and practice of the board which have given rise to the present appeals, and which is reflected in the boards annual reports, where figures are given for the savings achie... |
The easy assumption that it is cheaper to decide matters without having to spend time listening to what the persons affected may have to say begs a number of questions. Ratio |
In the context of parole, where the costs of an inaccurate risk assessment may be high (whether the consequence is the continued imprisonment of a prisoner who could safely have been released, or re-offending in the community by a prisoner who could not), procedures which involve an immediate cost but contribute to bet... |
In the present cases, counsel for the board accepted that cost was not a conclusive argument against the holding of oral hearings. Ratio |
R (West) v Parole Board PRE |
The circumstances in which the board should afford an oral hearing to determinate sentence prisoners who have been released on licence and then returned to prison were considered by the House of Lords in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350. PRE |
The case was decided at a time when such prisoners were entitled to challenge the revocation of their licence before the board (whereas now, as explained earlier, the board cannot adjudicate directly upon the appropriateness of the revocation of the licence, but must determine whether the prisoner should be re-released... |
The case was also decided at a time when indeterminate sentence prisoners in England and Wales were entitled to an oral hearing. PRE |
The House considered the requirements of procedural fairness in the light of a wide-ranging review of authorities from a number of common law jurisdictions, and also a number of judgments of the European court, including Waite v United Kingdom (2002) 36 EHRR 1001, to which it will be necessary to return. PRE |
Lord Bingham, with whose speech the majority of the committee expressed agreement, stated (para 31): While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may well contribute to achievi... |
The duty to afford an oral hearing therefore exists where there are facts in dispute which may affect the outcome, but it is not confined to such circumstances. PRE |
Lord Bingham did not attempt to define exhaustively the other circumstances in which an oral hearing was required, but gave some examples, and some general guidance (para 35): Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light o... |
While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. PRE |
It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. PRE |
The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society. PRE |
Lord Hope added two observations about the approach then followed by the board in relation to cases of the type in question, according to which it professed its willingness to hold oral hearings where the decision turned on disputed issues of fact, but in practice rarely held such hearings. PRE |
First, there appeared to be a long- standing institutional reluctance on the part of the board to deal with cases orally: It would not be surprising if a consequence of that reluctance was an approach, albeit unconscious and unintended, which undervalued the importance of any issues of fact that the prisoner wished to ... |
As Lord Hope pointed out, this approach was liable to lead to reliance upon assumptions based on general knowledge and experience, and to a lack of focus on the prisoner as an individual. PRE |
The institutional reluctance of the board to hold oral hearings in determinate recall cases appears to have continued during the period with which these appeals are concerned. PRE |
The boards annual report for 2009-2010 records, in relation to determinate recall cases considered under the Criminal Justice and Immigration Act 2008, that of a total of 12,388 cases considered that year, only 145 were sent to an oral hearing: in other words, 1%. PRE |
The proportion the following year was the same. PRE |
That reluctance can also be detected in the tone of the internal guidance discussed earlier. PRE |
The statistics also indicate a low rate of success in applications for oral hearings by indeterminate sentence prisoners: of 1054 negative paper decisions considered by ICM assessors in 2009-2010, 174 were sent to an oral hearing on appeal: in other words, 83% of appeals were refused. PRE |
Lord Hopes second observation concerned the allowance of oral hearings where there were disputed issues of fact: The question is not whether the case ultimately turns on a disputed issue of fact when the decision is taken. PRE |
It is whether, when the papers are first looked at, it is likely to do so (para 67). PRE |
In other words, one cannot decide whether a disputed issue of fact will prove to be determinative at the stage of considering whether an oral hearing is appropriate. PRE |
The most one can do at that stage is to identify the issues which appear to be important, and then decide in the light of that assessment (and other relevant factors) whether an oral hearing should be held. PRE |
Finally, in relation to West, it is useful to note how the House dealt with the cases before it. PRE |
The appellant West had breached his licence conditions in a number of ways. PRE |
He had an explanation for some but not all of the breaches. PRE |
He was refused an oral hearing. PRE |
The House concluded that his explanations could not properly be rejected without hearing him. PRE |
In so far as he had no explanation, the question whether the breach had an unacceptable impact on the risk posed to the public could not fairly be resolved without an oral hearing. PRE |
The appellant Smith had repeatedly used class A drugs after his release on licence, while living in designated hostels. PRE |
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