7. Procedural unfairness and developing grounds of JR Flashcards
Ridge v Baldwin (1964)
Key principle:
The rules of natural justice have to be observed where there is a duty to act judicially and this duty is not confined to the procedure of a court of law but exists where any body of persons has legal authority (arising from statute or common law or contract) to determine questions affecting the rights (not only legal rights) of others.
Facts:
The chief constable of Brighton was tried for conspiracy to obstruct the of justice. During the trial he was suspended from office. He was acquitted but the judge told him he lacked the ‘professional and moral leadership’ the public was entitled to expet. Using its powers under the Municipal Corporations Act 1881 the borough Watch Committee voted to dismiss him, forfeiting his pension rights. He had not been invited to appear before the committee, which confirmed its decision at a subsequent meeting at which he was represented. He sought judicial review to challenge the dismissal as a breach of natural justice.
Held:
(HL) The Watch Committee was in breach of the principles of natural justice as well as of the statutory regulations governing police discipline. The Watch Committee had three possible courses of action: dismissal, requiring the chief constable to resign or reinstating him. It was contrary to natural justice to decide the issue without hearing the chief constable. Natural justice was not confined to situations where a judicial or quasi-judicial function was being exercised.
Commentary:
This landmark decision is a recognition of the impact of decisions of administrative bodies on people’s lives.
McInnes v Onslow Fane (1978)
Key principle:
The content of a right to a hearing may vary according to the circumstances of the case.
Facts:
The plaintiff applied for a boxing manager’s licence but was refused without an oral hearing. The Boxing Board of Control gave him no reasons for refusal. He sought a declaration that the board had acted in breach of natural justice and unfairly.
Held:
(Ch. D) The court was entitled to intervene to ensure natural justice. But the case did not involve an existing right, nor had the plaintiff any legitimate expectation of success. The board was under a duty to reach an honest conclusion without bias but was under no obligation to give reasons, nor to grant an oral hearing. The application would be dismissed.
Cooper v Wandsworth Board of Works (1863)
Key principle:
A person cannot incur the loss of liberty, property or livelihood unless he has an opportunity of a fair hearing.
Facts:
Under the Metropolis Local Management Act 1855 the Board of Works had power to alter or demolish a house where the builder had neglected to give notice of his intention to build seven days before proceeding to lay or dig the foundations. The builder had given only five days’ notice before starting the build. The house was already built up to the second storey when late one evening council workers came and razed it to the ground. The builder brought an action in damages for the house, claiming that the Board had improperty exercised its power by acting without notice and failing to give him an opportunity to be hear.
Held:
(CCP) A person could not be deprived of his property without a hearing. The council’s statutory power to demolish did not empower them to do so without giving the builder an opportunity of being heard.
R v Hull Prison Visitors ex parte St Germain (1979)
Key principle:
Hearings before prison governor should be conducted in accordance with the principles of natural justice and this may require allowing witnesses to be called and hearsay evidence to be excluded.
Facts:
Prison visitors hearing disciplinary proceedings against prisoners following a riot refused to allow certain witnesses to be called on behalf of the prisoners and admitted statements by prison officers who were not called to give evidence. The Divisional Court refused judicial reivew, but that decision was reversed in the Court of Appeal and the matter was remited to the Divisional Court for hearing and determination.
Held:
(DC) Most of the applications would be granted for unfairness in refusing to exercise the discretion to allow witnesses to be called and to refuse to admit hearsay evidence.
Commentary:
The duty to act fairly can be applied in a range of contexts and does not necessarily mean that a judicial process should be adopted. Compare R v Commissioner for Racial Equality Ex p. Cottrell & Rothon (1980) where the Court of Appeal held that the Commission was under no obligation to provide an opportunity for cross-examination of witnesses whose evidence underpinned its decision to issue a non-discrimination notice against the applicant firm of estate agents.
R v Secretary of State for the Home Department ex p Doody (1993)
Key principle:
Procedural fairness may require a duty to give reasons.
Facts:
Four convicted murderers were told the minimum term they could expect to serve as life prisoners before being considered for parole. They sought judicial review of the Home Secretary’s decision on the basis that they ought to have been consulted and that the Minister could not set periods greater than those recommended by the trial jdge and the Lord Chief Justice.
Held:
(HL) The Secretary of State was obliged to tell the applicants the judicial recommendations on their case and allow them an opportunity to make representations as to the term, but that the Secretary of State was not obliged to abide by the judicial recommendations, provided he gave reasons for so doing. Procedural fairness required that reasons should be given.
Commentary:
Lord Mustill said that he could have come to the same decision in relation to the duty to give reasons by the reasoning made in Cunningham. This is now the leading case on the duty to give reasons and could be said to have indicated that there was a general duty on the part of administrators to give reasons for decisions. However in R v Higher Education Funding Council Ex p. Institute of Dental Surgery (1994) the court stressed that the requirement will depend on the circumstances of each case. There the court reviewed the law on the duty to give reasons for administrative decisions, linking it to the requirement of fairness. It identified two strands of cases: those such as Doody where the nature of the process itself called in fairness for reasons to be given and Cunningham where something peculiar to the decision or ‘trigger factor’ called for reasons to be given. It does not mean that differing tests of fairness should be applied. In other words the requirements of fairness will vary with the process to which they are being applied. It rejected the argument that in Cunningham and Doody it was the judicial or quasi-judicial nature of the decision-making that required the duty to give resaons.
R v Secretary of State for the Home Department ex parte Al Fayed (1997)
Key principle:
An express statutory provision excluding a duty to give reasons does not exclude a duty to disclose the substance of the case.
Facts:
Two brothers, prominent businessmen born in Egypt, had been granted indefinite leave to remain in the United Kingdom. They applied for naturalisation. The Secretary of State issued a news release indicating that the applications were regarded as especially difficult and sensitive. He refused both applications and declined to give reasons for his decisions. The judge dismissed the brothers’ judicial review applications on the ground that the statute entitled the Secretary of State to dispense with any requirement to give reasons. On appeal by the applicants.
Held:
(CA) The Secretary of State was not relieved by the statute of the obligation to act fairly, which required that, before reaching his decision, he should inform an applicant of the nature of matters weighin against granting his application and give him an opportunity to address them.
Commentary:
It is clearly often pointless to give someone a right to make representations if they do not know the case against them. Disclosure of evidence adverse to the applicant is therefore an aspect of natural justice. Ex p. Fayed illustrates that the duty of disclosure may be an ongoing one.
Secretary of State for the Home Department ex parte Tarrant (1985)
Facts:
The applicants were prisoners who were charged with grave offences against prison discipline. They sought legal representation at inquiries into the charges to be held by Prison Boards of Visitors. In each case, the request was refused, although they would hav been entitled to legal representation had their cases been heard in the criminal courts. The applicants sought judicial review of the decisions on the grounds either that they were entitled to legal representation or, alternatively, that the Boards had a discretion to permit legal representation and should have exercised that discretion in the applicants’ favour.
Held:
The court held, allowing the application, that the court was bound by the authority of the Court of Appeal in Fraser v Mudge (1975) to hold that the applicants had no right to legal representation. However, a Prison Board of Visitors had a discretion to permit legal representation. In deciding how to exercise that discretion, a Board should take into account:
- the seriousess of the charge and of the potential penalty;
- whether any points of law were likely to arise in the proceedings;
- the prisoner’s capacity in intellectual and educational terms to present his case;
- the prisoner’s difficulty in contacting witnesses;
- the need for reasonable speed in making the adjudication; and
- the need for fairness as between prisoners or as between prisoners and prison officers.
The failure by the Boards to consider the exercise of the discretion to allow legal representation was in all cases a substantial infringement of the applicants’ rights, whether or not, if the discretion had been exercised, it would have been exercised in the applicants’ favour.
Comment:
Although the case specifically concerns prisoners appearing before Prison Boards of Visitors, the factors enumerated by the court may be applied, mutatis mutandis, to other matters.
R v Gough (1993)
Facts:
The defendant was convicted of conspiring with his brother to commit robbery. The brother had been discharged at the committal stage, but after the defendant had been convicted and sentenced he made a scene in court and was recognised by one of the jury as her next door neighbour. The defence raised with the judge a possibility of bias but he held he was functus officio. The Court of Appeal dismissed the defendant’s appeal and he appealed to the House of Lords.
Held:
(HL) The test to be applied in all cases of apparent bias was whether in all the circumstances of the case there appeared to be a real danger of bias such that justice required the decision should not stand. The only category of case where bias would be assumed was where the tribunal had a pecuniary or proprietary interest in the subject-matter of the proceedings. The appeal would be dismissed.
Commentary:
In cases such as these involving non-pecuniary interest the words ‘real danger’ should be taken to denote a possibility not a probability.
Locabail (UK) Ltd v Bayfield Properties Ltd (2000)
Key principle:
If there was genuine doubt about the real danger of bias then the matter should be resolved in favour of disqualification. It would however be as wrong for a judge to accede to a tenuous objection as it would be for him to ignore one of substance.
Facts:
Various applications for permission to appeal raised common questions about disqualification of judges (whether judge, lay justice or juror) for bias. The court delivered a judgment on the general principles and then considered the applications individually.
Held:
(CA) On the authorities, where the judge had an interest in the outcome of the case he would be automatically disqualified if the outcome of the case before the judge could realistically and directly affect the judge’s interest. In Pinochet the House of Lords had extended the rule to a limited class of non-financial interests. Further extension of the present rule on automatic disqualification would be undesirable. A judge might also be disqualified and his decision set aside if in all the circumstances there was a real danger (or possibility) of bias. It would very often be appropriate to enquire whether the judge knew of the matter relied on as appearing to undermine his impartiality, because if it was shown that he did not know of it the danger of its having influenced his judgment was eliminated and the appearance of possible bias was dispelled. Solicitors who were judges should, before embarking on the trial of any assigned civil case, conduct a careful conflict search within their firm. It was always inapprorpriate for a judge to use intemperate language about subjects on which he had adjudicated or would have to adjudicate.
Commentary:
There are now a series of cases which set out the test for the appearance of bias. Cases of actual bias which inevitably provide good grounds for challening a decision are rare. Cases of serious apparent bias will also provide grounds for a successful challenge unless the court is satisfied that there was no actual bias.
R v Bow Street Magistrates ex p Pinochet Ugarte No 2 (1999)
Key principle:
If a direct interest, including a non-pecuniary interest, of a person in a judicial capacity can be shown, the court is not required to inquire whether there was any real likelihood of bias.
Facts:
The former Chilean dictator was arrested in London under extradition warrants requested by Spain. The warrants charged various crimes against humanity, including murder, hostage-taking and torture. The Divisional Court quashed the warrants on the basis that a former head of state was immune from arrest and extradition proceedings in the United Kingdom in respect of acts committed while he was head of state. The prosecutor appealed to the House of Lords. Amnesty International obtained leave to intervene in the proceedings and was represented by counsel. By a majority of three to two, the House of Lords allowed the appeal and restored the warrant. Lord Hoffmann, who was part of the majority, was an unpaid director and chairman of Amnesty International Charitable Trust Ltd, whose objects included the abolition of torture, extra-judicial prosecution and disappearance. The applicant petitioned to have the decision set aside for apparent bias on the part of the judge.
Held:
(HL) The fundamental principle that a man might not be a judge in his own cause applied if the judge’s decision would lead to the promotion of a cause in which he was involved together with one of the parties. Although the judge could not personally be regarded as having been a party to the appeal, Amnesty International and the charitable trust were both parts of a movement working towards the same goals. A judge who was involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as was a party to the suit should be disqualified.
Commentary:
This case extends the special category of automatic disqualification for apparent bias to instances where the judge’s interest was neither financial nor proprietary. The House noted that the case was highly unusual.
Re Medicaments and Related Classes of Goods (No 2) (2001)
Facts:
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held:
When asking whether material circumstances in a case might give rise to a reasonable apprehension of bias, the test was whether objectively that appearance might be reasonable. It was not a subjective test of whether the lesser tribunal was actually biased. There is little substance to the distinction between a ‘real danger’, and a ‘real possibility’ of bias. Circumstances beyond those apparent to the parties might be taken into account. The judge’s own account of those circumstances can be taken into account. In this case a possible connection with a party meant that the judge should have recused herself. The court summarised the principles to be derived from this line of cases as follows:
- If a Judge is shown to have been influenced by actual bias, his decision must be set aside.
- Where actual bias has not been established the personal impartiality of the Judge is to be presumed.
- The Court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the Judge might not have been impartial. If they do the decision of the Judge must be set aside.
- The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the Court.
- An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice.
Porter v Magill (2002)
Key principle:
There is no difference between the common law test of bias and the requirements under art.6 of an independent and impartial tribunal.
Facts:
Lady Shirley Porter and other leaders of the Conservative council in Westminster were found by an auditor to have been acting unlawfully by targeting the sale of council houses in key wards with the primary purpose of improving their party’s chances of retaining its majority. The auditor surcharged Porter and her associates, and was upheld by the Divisional Court, which set the surcharge at £26m. The Court of Appeal, however, quashed the auditor’s order on the grounds that the Divisional Court had inconsistently exonerated some of the defendants. The matter went on appeal to the House of Lords. Among other things the defendants claimed that the auditor’s inquiry had been unfairly conducted, accusing him of bias.
Held:
(HL) The auditor’s role required him to act as investigator, prosecutor and judge, but the defendans’ right to an independent and impartial tribunal was met by the right of appeal by way of a full rehearing. The appropriate test for apparent bias was whether a fair-minded and informed observer, having considered the relevant facts, would conclude that bias was a real possibility. Although the auditor had made public his provisional findings in advance of the final decision, such a progress statement was appropriate given the public interest in the matter and the defendants had failed to show a real possibility of bias.
Commentary:
In Lawal v Northern Spirit Ltd (2003) the House of Lords ‘unanimously endorsed’ the approach in Porter v Magill. Lord Steyn observed, ‘The principle to be applied is that stated in Porter v Magill, whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased.’ In this case it was held that public confidence in the administration of justice might be undermined by the practice whereby leading cousel sat as part-time judges in the Employment Appeal Tribunal. Counsel might have sat as a judge with one or more of the lay members of the panel before which he was appearing. The practice should be discontinued.
R v North and East Devon Health Authority ex p Coughlan (2000)
Key principle:
Once a claimant has established legitimate expectation he or she must show it would be unfair of the public body to resile from giving effect to it.
Facts:
A severely disabled patient sought judicial review of a decision by the respondent health authority to close the property where she was living. When she had moved to the property from another hospital which was being closed, the patient had been told she would have a home there fore life. The judge found that the decision to break the promise was equivalent to a breach of contract and could be don only where overriding public interest demanded it. The health authority had failed to establish this. It had wrongly treated the promise as a promise to provide care regardless of the place of care. There had been insufficient consultation. The health authority appealed.
Held:
(CA) The proper test was whether the need judged to exist by the health authority to move the patient to a local authority facility was such as to outweigh its promise that she would have a home for life at the property. There was no overriding public interest to justify the closure decision in breach of the promise. The unfairness amounted to an abuse of power. The property was the applicant’s home which required to be respected under art.8 of the European Convention. The health authority was not justified under the Convention in seeking to deprive the patient of a home. Breach of the Convention could amount to a free-standing ground of review.
Commentary:
Woolf LCJ spoke of at least three kinds of possible unfairness by a public body: irrational failure to take its representations into account; procedurally unfair failure to provide the citizen affected by its decision to resile from its representation with an opportunity for consultation; and unfairness where there is no overriding interest that would justify the body in resiling from its representation that a substantive benefit would be forthcoming. It is now acknowledged that with the recognition of the doctrines of legitimate expectation and abuse of power there is no place in planning law for the private law doctrine of estoppel. Even though the HRA was not then in force the court was willing to invoke art.8.
R v S of S for Education and Employment ex p Begbie (2000)
Key principle:
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the costs of a child’s education. Any consequences of a failure to keep a promise must remain political, not legal ones.
Facts:
The case concerned the ‘Assisted Places’ scheme, promoted first by the Thatcher administrtion and enacted in the Education Act 1980, under which some children had their fees to attent private sector schools paid by the goverment. Prior to the 1997 general election, the Labour Party had indicated that it would abolish the scheme should it be elected to form a government. The issue raised in Begbie was whether various statements made by Labour politicans before and after the 1997 election about continued funding of places for children who had entered the scheme prior to its projected abolition had generated a substantive legitimate expectation on the part of the applicant.
Held:
The CA saw no basis for assuming that any statements made by politicians while in opposition could generate a substantive legitimate expectation when such politicians subsequently gain government office.
Comment:
That conclusion seems unavoidable, given that in legal terms the politican had no governmental authority when the representation was made. The judgment also indicated that where a government body’s initial position rested on a mistake or incompetence on its part, it should be permitted to resile from that position. A further welcome development for a government body’s perspective was that the Court firmly indicated that some degree of detrimental reliance on the applicant’s part was required in cases where the representation relied upon was made to a specific person rather than to the public at large. (confusingly, no detrimental reliance would be required where the policy statement was directed at the public at large)
R (Bibi) v Newham LBC (2002)
Facts:
A local authority promised to give permanent accommodation to the applicant and his family within 18 months. The local authority thought that the family, who were homeless, had a legal right to it. Then the House of Lords held that local authorities had no obligation to give homeless people permanent accommodation, and should not be bumping homeless people up to the front of the housing queue. The Council refused to provide the permanent accommodate it had promised, and the claimants sought judicial review.
Held:
The only relief granted by the Court of Appeal was a declaration that the local authority had to take into account the claimants’ legitimate expectations when considering their applications for housing.
