Procedural Impropriety Flashcards

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1
Q

What is procedural impropriety?

A

Lord Diplock in GCHQ- ‘failure to act with procedural fairness’

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2
Q

What values does PROCEDURAL FAIRNESS reflect? instrumental/non instrumental

A

instrumental: it helps to ensure accurate outcomes
Non-instrumental: fairness, the rule of law and non-arbitrary existence of public powers/authorities

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3
Q

Traditional Approach- Mandatory- makes a decision VOID or Directory? case law

A

Mandatory- Bradbury v Enfield LBC 1967- legal error- merging schools without given notice
Directory- Coney v Choyce 1975- minor shift from statute, since notice was given through letters, but wasn’t posted at the main entrance

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4
Q

Modern Approach- significance of the error, first suggested in Australian Case Project Blue Sky Inc#

A

Compliance with statute/ discretion/ consequences of decision
Jeyeanthan 2000- an appeal for a rejected claim- no injustice was caused to Jeyeanthan- pure technicality

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5
Q

What are statutory consultations and what criteria must they follow?

A

Contributions to policy formation and decision-making- consult before making a decision
ex parte Gunning 1985 principle, endorced in Moseley 2014- must be done when proposals are in a formative stage- a case regarding the Council Tax Reduction Scheme, where taxpayers were not consulted
must give sufficient reasons
adequate time must be allowed for the response- varies depending on context

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6
Q

The Rules of Natural Justice- fairness- case law

A

Ridge v Baldwin 1964- dismissed, equals to no pension rights- required
Lloyd v McMahon- 1987- depends upon character of the decision making body
Ex parte Doddy 1994- dependent on context of the decision

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7
Q

Hear the other side- audi alteram partem principle

A

Notice of the case against you
Reasons for the decision
right to an Oral Hearing
What does justice demand in the context of the case?

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8
Q

Notice of the case against you- first part of ‘audi alteram partem’

A

the factors that may lead the public body to make a decision not in your favour- ex party Fayed 1998- unless the applicant knows the areas of concern it will be impossible for him to make it out of his case- Lord Woolf
Bank Mellat 2- serious consequences of the decision

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9
Q

A duty to give reasons- audi alteram partem’

A

No general duty at common law, although statutes will often require reasons to be given
Or
it comes down to context
ex parte Doddy 1994- serious negative effects of the decision

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10
Q

Oral Hearing- audi alteram partem

A

aspects of cases which are better explained in person Osborn v Parole Board 2013

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11
Q

What are the requirements of an oral hearing?

A

ex parte Tarrant 1985

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12
Q

Legal Representation

A

Ex parte Hone 1988

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13
Q

Witness Cross-examination

A

Ex parte St. Germain No 2

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14
Q

Sufficient time to prepare

A

ex parte Polemis 1974

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15
Q

Reluctance of courts to act as a legislature- no duty to consult at common law

A

BAPIO case and Plantagenet Alliance LTD
Court should not contravene Parliament’s intentions by adding a further procedure as such consultation exercise

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16
Q

No notice given makes a decision void or claimant can claim damages

A

Baggs Case 1615- expelled from Corporation- no hearing had taken place
Cooper- demolition of a building

16
Q

What is actual bias?+ case law

A

A decision maker has an interest of his own in the outcome of the decision- Re Medicaments and Related Classes of Goods No 2

17
Q

What is not bias?

A

ex parte McCarthy- solicitor of defendant and clerk were from the same firm. Yet no unfairness was found during the proceedings.

18
Q

Automatic Disqualification Rule- can be financial or non-financial

A

Financial Interest- must be more than de minimis- Dimes Grand Junction Canal case
Non-Financial- judge in his own cause- Pinochet No2

19
Q

What is apparent bias?

A

A probability, danger or possibility of bias- R v Gough

20
Q

What is not apparent bias?- as appears to a fair minded observer

A

Porter v Magill 2001- places public confidence at the heart

21
Q

What is the ‘fair minded observer’?

A

Gillies case- assumed to be aware of ‘all the facts that are capable of being known by members of the public’

22
Q

Is meant to place public at the heart, but likely results are that it reflects the views of the judge?- case law

A

Taylor v Lawrence- judge found in favor of the claimant
Stubbs v The Queen- found apparent bias on the part of the judge who heard an appeal from a criminal trial