Judicial Review - Procedural impropriety Flashcards
(35 cards)
What are the two categories of procedural impropriety?
- Procedural illegality
- Breach of the rules of natural justice
What are the two parts of the rules of natural justice?
- Rule against bias
- Right to a fair hearing
Dimes v Grand Junction Canal Proprietors (1852)
Example of direct interest - judge had a financial interest in case
Court also found that it is not actual bias, but the appearance of bias that matters
R (ex p Pinochet Ugarte) v Bow Street Magistrate (No 2) (2000)
Lord Hoffman was involved in deciding a case about Pinochet’s extradition to Spain, but was later shown to be involved with Amnesty International, which had campaigned for accountability for Pinochet
This was held to have created a direct interest in the case (a direct interest can exist even if it’s non-pecuniary)
Porter v Magill (2001) (procedural aspect)
Example of indirect bias not existing: the auditor in a case had set out a preliminary finding that Porter was very likely guilty in the “homes for votes” scandal - while this was unwise, it didn’t create an indirect interest in then finding her guilty
The test for indirect bias is, “Would a fair-minded and impartial observer conclude that there had been a real possibility of bias?”
What is the test for indirect bias?
“Whether a fair-minded and informed observer, having considered the facts, would conclude that there had been a real possibility of bias” (Porter v Magill (2001))
R v Pintori (2007)
Indirect bias: A juror knew some of the police officers who gave evidence and had arrested the defendant. Held that a fair-minded observer would conclude there was a real risk of bias.
R v Abdroikov and others (2005)
A police officer serving on a jury does not create a real risk of bias (a fair-minded observer would not conclude, just because a juror was involved in the administration of justice in some capacity, that a real risk of bias existed)
McInnes v Onslow-Fane (1978)
Sets out three types of case, and explains that what is required for a fair hearing will be different in each:
1. Forfeiture
2. Legitimate expectation
3. Application
What is required for a fair hearing in mere ‘application’ cases?
That the decision-maker act honestly and without bias (McInnes v Onslow-Fane)
Ridge v Baldwin (1964)
Example of a forfeiture case, in which the forfeiting of something very important means that a significant amount is required for a fair hearing
A police officer was sacked in a way that he lost his pension rights, without knowing the case against him - this was unfair
What are the two types of legitimate expectation?
Procedural: there is an expectation of a procedure being followed
Substantive: there is an expectation of a benefit being conferred
What are the two ways a legitimate expectation can be created?
- A longstanding practice
- A clear and specific promise
R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators (1972)
Example of a procedural legitimate expectation being created through a promise being made - Council promised to consult existing taxi drivers before granting new licences, but doesn’t
R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government (2018)
Example of a legitimate expectation being created by a promise: S of S had promised in 2001, and then again in 2012, that reasons would be provided for a refusal to call in a planning application, and this undertaking had not since been withdrawn
Mandalia v Home Secretary (2015)
An unpublished internal policy within gov’t department should still be followed, even if claimant not aware of it, as it’s aimed at creating fairness and consistency
Note: this is a bit different from legitimate expectation
Lewis v Heffer (1978)
The right to a fair hearing may not apply when it comes to merely ‘preliminary’ decisions - here, Labour party officers were suspended pending an investigation - but as it wasn’t a final decision but only a temporary suspension, procedural impropriety didn’t apply
What are the requirements for a fair hearing in forfeiture cases?
People should (1) Know the case against them and (2) Have the right to reply at each stage of the decision-making process
(Fairmount Investments Ltd v Secretary of State for the Environment [1976])
Fairmount Investments Ltd v Secretary of State for the Environment (1976)
In forfeiture cases, people need to know the case against them and have the right to reply at each stage
Here, a CPO order is made - the decision is confirmed on grounds decided by an inspector, which had not been part of the Council’s case and to which Fairmount had not been able to reply
R (ex p Benaim and Khaida) v Gaming Board (1970)
Usually, in application cases, the right to a fair hearing is only that decision makers act honestly and without bias, but when the decision is made due to something imputed against the applicant’s character, then they can be entitled to know the gist of the case against them
Lloyd v McMahon (1987)
There is no automatic right to an oral hearing - it depends on the circumstances of the case
Here, Councillors had been warned twice of a deadline, but still missed it - they had not requested an oral hearing - held that justice didn’t require one here
R (ex p St Germain) v Hull Prison Board of Visitors (No 2) [1979]
Example of the right to cross-examine witnesses being required for a fair hearing
When does a duty to give reasons apply?
- When the decision seems aberrant
- When a fundamental interest is at stake
R (ex p Cunningham) v Civil Service Appeal Board (1991)
There can be a duty to give reasons when a decision seems aberrant
The usual award for unfair dismissal was £15,000, but Cunningham was only given £6,500, with no reasons. This decision cried out for an explanation
