Procedural Fairness Flashcards
What two main categories of procedural fairness can be considered?
- Right to a fair hearing
- The rule against bias
What does Article 6(1) of the ECHR provide?
In determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing
What was established in the case of Cooper v Wandsworth Board of Works?
FACTS- Pursuant to relevant statutory provisions, Coopers house was pulled down for not giving notice of its construction. Cooper sued in trespass
OUTCOME- Althoough relevant material was followed, Cooper still won as he had a duty to be heard beforehand. This is founded on the ‘plainest principles of justice’
What case shifted language away from ‘natural justice’ to ‘procedural fairness’?
Nagle v Fielden, Lord Denning said when departing from judicial decisions the word ‘justice’ is harder to use and ‘fairness’ is a more suitable approach
What is a fair hearing?
- Court proceedings that have notice, impartiality, reasoned decisions and both sides being able to present a case
- BUT purpose of extending natural justice to procedural fairness is not to turn decision making into a judicial proceeding
- Rules on the right to a fair hearing will vary considerably by context, this can be either the nature of the decision or nature of the decision maker
Why should we have fair procedures and hearings?
- Instrumental reasons: a focus on ensuring accuracy means better decision making is done
- Dignitarian reasons: focusing on the experience of the affected individual and listening to what they have to say will help to create better procedures and legitimate the decision, procedure is an end in itself
- Waldron, we manifest dignity through fair procedures in the law, we respect the individuality of the person
When will a fair hearing be required?
Ridge v Baldwin
Chief Constable was dismissed for criminal proceedings against him. Acquitted of charges and argued the dismissal was void as he was not given noitce or the opportunity to be heard
* Lord Reid held there is an unbroken line of authority that an officer cannot be dismissed without knowing the case before him
* When a body performs a ‘quasi-judicial’ task it must observe the essentials of a proceeding, principles of natural justice
* Task is quasi-judicial where it affects matters involving civil consequences to individuals
Clarke v Secretary of State for Justice
Reclassification of a prisoner was not a quasi-judicial task. The contrast is administrative / managerial tasks, the same principles do not apply here
R v Home Secretary, ex parte Fayed
Parliament cannot legislate away or oust the right to a fair hearing, however it may narrow the scope when done by clear words, e.g. S2 JRCA 2022
What was said in the case of McInnes v Onslow Fane?
Issue of appeal was when rules of natural justice apply to cases that are not about forfeiture of an existing private law right. The court said there were three kinds of cases that could arise:
* Forfeiture: These are decision which take away some existing right or position of the applicant (highest amount of process is needed here)
* Application: Contrastingly, these are cases where the decision merely refuses to grant the applicant the right or position he seeks
* Expectation: These cases sit somewhere in between the two and differ to application cases only in the fact that the applicant has some legitimate expectation
Trigger for procedural fairness is therefore broader than Ridge
When is an oral hearing required?
Lloyd v McMahon
Where procedural fairness is satisfied by written submissions, an oral hearing is not required. Oral hearings are not the default in public administration (exception, not the rule)
R (Osborn) v Parole Board
Requests for parole were considered on paper, oral hearing could only be given where it was likely that the applicant would succeed. Claimant argued he was entitled to an oral hearing. Under what circumstances did Art 6 and the common law require such?
1. Not a judgement based on reasonableness, it is for the courts to decide
2. Fairness depends on circumstances, based on facts of the case
3. Where important facts are in dispute and where the board cannot otherwise fairly make an independent assessment of risk
4. Does not depend on likelihood of success
5. A decision made without an oral hearing were one was required is unlawful
How must the right to a fair hearing be balanced against other interests?
Roberts v Parole Board
Can a close material procedure be permitted because the witness may be at risk if identitifed?
* Question is a matter of principle, parole board has the statutory power to do so and it is necessary to balance the safety of the witness with the procedure rights of roberts
Home Secretary v AF (No. 3)
Even in a national security case where Art 6(1) is engaged, there must be a core irreducible minimum of disclosure by the minister to allow an effective challenge. There is a floor of procedural fairness that cannot be reduced
Tariq v Home Secretary
AF No 3 disclosure was not available despite Art 6(1) being engaged. This is because ECtHR case law demonstrated the convention did not require disclosure in security clearance appeals, and the claim, unlike a control order, did not put Mr Tariq’s liberty at stake
W (Algeria) v Secertary of State for the Home Department
Where Art 6(1) is not engaged, there is not common law equivalent
Who does the rule against bias apply to?
Applies to courts, tribunals and public administration BUT this will be tailored based on the context
What is bias?
- ‘No one should be a judge in his own cause’
- Endicott, it is unfair partiality or a bad attitude. Disposition to make a decision against a party’s interest, regardless of how it should be decided
What is the rule of automatic disqualification for bias?
A decision maker will be automatically disqualified where he has a direct pecuniary or proprietary interest
* Dimes: the Lord Chancellor deciding the case was a shareholder in the defendant company
There may sometimes be a statutory rule to supplement the common law
Scope extended in the Pinochet case:
Lord Hoffmann, one of the Lords who was to preside over the case, had connections to and an interest in Amnesty International (a party to the proceedings) but had not part in running it
* Held that the rule of automatic disqualification extends to cases where the matter at issue will raise the promotion of a cause the judge is involved in
What factors will and will not raise a presumption of bias?
Locabail
* RAISING: Relationship of personal friendship, animosity or close acquiantance
* NOT RAISING: Religion, ethnicity, gender, social class, education, sexual orientation
How has the test been refined in determining whether there is bias?
- R v Gough: Test is whether there is a real danger of bias. This is for the court to assess
- Porter v Magil: Question is whether a fair minded and informed observer having considered the facts would concldue there is a real possibility of bias
Shift in the case of focusing on reality to the perception of an objective outsider, which is highly contextual
- Johnson v Johnson: Observer should be neither complacent nor unduly sensitive or suspicious
- Belize Bank: Context is important, it is not a hard edge test
How has the law on bias been applied in planning cases?
R (Lewis) v Redcar and Cleveland
All labour members of a council granted planning permission for housing. This was done in the period before an election, where said housing was promised in the manifesto
* Court of Appeal ruled both actual and appearance of bias did not apply to this case
* Unclear whether Porter v McGill applied, LJ Rix argued that it could do the test could do the necessary work here
Broadview Energy Development
Question of appeal was whether the secretary of state had acted unlawfully by allowing an MP to have private meetings with him and lobbying for planning permission on a wind farm
* No actual or apparent bias
* Contextualising Porter, lobbying is part and parcel of an MPs representative role
* It would be wrong for a court to set unworkable limits on ability of ministers, common law should not usurp constitutional role
* Appeal to CoA dismissed, but obiter shows judges disagreed with the extent of lobbying being part and parcel of the role
