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Flashcards in Procedural Fairness Deck (24)
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1

Ridge v Baldwin (ratio + facts)

In cases affecting C’s personal or property rights, C must be given the opportunity to make representations, irrespective of whether the decision is classified as a "judicial" or "administrative" one.

Here the Watch Committee of the police force had to inform C of the grounds on which they proposed to proceed and give him an opportunity to present his case in defence before they could exercise their power to dismiss him.

2

What are the 3 situations in which procedural fairness will not apply?

1. Where legislation expressly displaces the principles of procedural fairness (only reluctantly inferred by the courts, e.g. Wilkinson v Banking Corporation)
2. The wider context in which the decision-making power is exercised precludes the application of principles of procedural fairness (GCHQ – considerations of national security)
3. Where applying fair procedures would make no difference (Cinnamond;)

3

John v Rees

Courts should not readily reach the conclusion that fair procedures would make no difference since the law has documented many cases where procedural fairness, although initially thought to be inconsequential, turned out to make substantive difference

4

Polemis

The argument that following fair procedures would make no differences “mixes up the doing of justice with seeing that justice is done”

5

Health Stores

A “laboratory example” of a case in which the fair procedure demanded by C would "make no difference" - C had been duly consulted on the possibility of making kava-kava available only on prescription, and that possibility was rejected as an insufficient safeguard; D could not rationally have concluded that the less stringent measure of putting a warning on the label would suffice.

6

Three guiding principles when determining the content of the duty to act fairly.

i. A duty to act judicially (according to ALL the principles of natural justice) is distinct from the duty to act fairly (Pearlberg).
ii. The rules of natural justice are not engraved on tablets of stone (Lord Bridge, Lloyd)
iii. The essence is that C should have a reasonable opportunity to present his case (Russell)

7

McInnes

Megarry J distinguished between forfeiture, application and expectation cases; the requirements of fairness would generally be more demanding in the former.

8

How significant are the distinctions drawn in McInnes?

Not very.
In Khatun – Laws LJ acknowledged that in application cases there is usually legal space for the decision maker to exercise a discretion, having regard to the statutory scheme, whether or not to accord a right to be heard, but noted the distinction was a very fine one.
In Fayed the mere fact that C was seeking a privilege (i.e. application case) did not preclude the application of the rules of natural justice, for the decision here had high stakes for C; it not only deprived him of citizenship but had potential to damage his reputation

9

Lloyd v McMahon

If the procedural safeguards are unlikely to improve D’s capacity to obtain salient information(e.g. if C would merely use an oral hearing to reiterate his sincerity) it may be lawful to dispense with them.

10

Smith v Parole Board

Oral hearings are vital where credibility and veracity are at issue (e.g. risk assessment for release of prisoners), for they offer greater flexibility, allowing C to mould his argument to the issues which D regards as important

11

Doody

Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer

12

Why were special advocate proceedings held to be lawful in MB and Roberts?

o Roberts – C’s interests had to be balanced against those of the informant and public safety, making the special advocate procedure adopted by the Parole Board lawful
o MB – the involvement of the special advocate was in principle capable of assuaging any disadvantage flowing from non-disclosure

13

Criticisms of MB and Roberts

 In Roberts Lord Steyn, dissenting – “The special advocate procedure [lacks the essential characteristics of a fair hearing]”; it involves a phantom hearing only.
 AF No.3 - The HoL in MB refused to view the closed material; how could it then decide whether special advocates were capable of responding effectively to material on which they could not take instructions from C?

14

AF (No.3) - 2 points on CMPs

A v UK has established that C must be given sufficient info about the allegations against him (detail + sources of info need not be disclosed) so he may give effective instructions in relation to those allegations.

If the open material against C consists purely of general assertions and the case against him is based to a decisive degree on closed materials the requirements of a fair trial will not be satisfied.

15

St Germain (No.2)

Here Cs were accused of serious offences which, if established, could and did result in a very substantial loss of liberty, so the Chairman could only disallow the calling of witnesses reasonably, in good faith and on proper grounds, and had to give him the chance to cross-examine in relation to hearsay evidence

16

Cottrell and Rothon (qualifying St Germain)

Where D was carrying out a mere investigation (as opposed to the quasi-judicial function in St Germain) “so near an administrative function as to make little difference” - cross-examination was held to be optional

17

Bushell

A public inquiry for the purpose of collecting relevant information should not be over-judicialised, for it is quite unlike any civil litigation and is not suited to adversarial debate; cross-examination cannot be regarded as a prerequisite of fairness in this case

18

Tarrant

The Board had a discretion to allow representation, which it had failed to exercise, having held such representation was simply not permitted.
Since the charge of mutiny in the case of two Cs involved complex questions of law, no board of visitors properly directing itself could have reasonably denied those Cs legal representation; this was not the case for those Cs charged with assault

19

Ezeh v UK

Where an individual is charged with a criminal offence, punishable by sanctions analogous to criminal law penalties, Art.6 demands that legal representation be permitted

20

When will Art.6 require legal aid to be provided?

For criminal trials where the legal issue is complex (Maxwell v UK) and even in the civil context, where the litigation is legally and procedurally complex (Steele v UK)

21

Al-Mehdawi + caveat

The HoL declined to set aside a decision adverse to C merely because he was, through the fault of his advisors, unaware of and therefore unrepresented at the hearing; indicates that even if natural justice requires C to be given legal representation the representation need not be competent.

FP v Iran - the CoA held that Al-Mehdawi would not apply where the advisor’s incompetence might deprive C of the right to be heard “on an issue of radical importance’ to them where “their lives and safety may in consequence be put at risk” and leave them without a remedy of any kind.

22

What is the significance of a statutory appeal mechanism for the requirements of natural justice?

Natural justice does not require the provision of an appeal (Ward) but the availability of appeal may cure unfairness in the original decision-making process (Calvin v Carr, Lloyd)

23

Lloyd (appeal ratio + significance)

If Parliament makes provision for an initial hearing followed by appeal then what Parliament should be presumed to intend is that C should be treated fairly in the proceedings, including the appeal as a whole”; extended Calvin outside of the contractual context.

24

Kingsmead

In general C must use any statutory appeal procedure rather than seek JR of the initial unfair decision, for though C does not obtain redress for the earlier unfairness, he does obtain a fresh and fair decision on the merits of the case by a statutory body custom-built for this purpose