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Public law topic 10 Judicial review - procedural impropriety - Coggle…
Public law topic 10
Judicial review - procedural impropriety
(Breach of the) Duty to
ACT FAIRLY
(to follow the rules of 'natural justice'; to ensure a fair process is followed when decision is made)
Right to
BE HEARD
Right to call witnesses
Depends on nature of body and of proceedings.
R v Hull Prison Board of Visitors ex p St Germain
- prisoners were entitled to call alibi witnesses where there was a risk of serious punishment
Right to legal representation
No general right. More likely when body is 'legalistic' in nature (eg disciplinary hearing with serious consequences:
R v SoS Home Dept ex p Tarrant
- relevant factors include seriousness of charge, likelihood of point of law arising; ability of person to conduct own case; need for a speedy process.
Right to make representations
No automatic common law duty to hold oral hearing.
Generally, oral reps only where there are serious issues at stake.
R v Army Board of the Defence Council, ex p Anderson
- relevant facts: subject matter & circs of case, nature of decision to be made; are there substantive issues of fact that cannot be satisfactorily resolved on the available written evidence?
R (Smith and West) v Parole Board
PB not required to hold oral hearing in every case of recall to prison but should have oral hearing where (eg) prisoner wanted to raise mitigating factors.
Osborn v Parole Board
- must consider fairness to the individual, accountability & transparency in govt. 'The Board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense (also see other cases dealing with this right)
Right to be given reasons for decision
No automatic common law duty to be given reasons:
Hasan
. But - trend towards preference for giving reasons especially where a fundamental interest is at stake (
ex p Doody
). Will depend on the circs.
McInness
- no need for reasons as a 'mere application' case.
R v Higher Education Funding Council ex p Institute of Dental Surgery
- no need for reasons where unduly onerous to give reasons due to complexity of decision.
R v Ministry of Defence ex p Murray
- supporting need for reasons: eg absence of appeal right.
Right to know the case against you
eg
R v Governing Body of Dunraven School ex p B
- refusal to disclose nature of serious allegations - proc unfairness
eg Right to have enough time to respond
R v Thames Magistrates ex p Polemis
(see other cases dealing with different aspects of this right)
Note - 'hearing' doesn't necessarily mean 'hearing'! What it means depends on the situation. What each individual case requires depends
on the facts of the case
. Could be simply right to submit representations to DM in writing.
Rule against
BIAS
Indirect bias
Porter v Magill
: TEST - would the reasonable, fair-minded and informed observer think there was a 'real possibility' of bias? (note: test is not whether
in fact
there
was
bias; test is not whether bias can be shown
beyond reasonable doubt
; test is not whether the
reasonable judge
would find bias)
Examples: see Adapt slides: unauthorised participation in (or even mere presence at) DM process; views formed in advice and 'closed mind'; policy bias. See points on necessity.
ex p McCarthy
: 'justice should not only be done, but should....be seen to be done'
Direct bias
Leads to 'automatic disqualification
eg financial bias/pecuniary interest on part of the decision maker - see
Dimes
eg 'party bias'
Where DM is in effect a party to the decision ' a 'judge in their own cause'
Ex p Pinochet
Direct
bias (rarely arises/difficult to prove and
Indirect
bias
When
does duty arise?
What
is the duty?
Who
does it apply to?
Question of what level of fairness applies in a particular situation depends on the individual case. 'Fairness' is a flexible concept - what is 'fair' depends on the circumstances of the case. Need to assess
how much/what is at stake
in the case.
Duty has developed through
case law
. Even if there are no relevant
statutory rules
, courts can
imply in
procedural requirements which should have been followed.
Duty applies to all decisions made by PBs. It can be reduced or even overridden by countervailing public interest factors.
Ridge v Baldwin
Duty to act fairly
applies to all executive decisions
being made
Level of fairness
: what is the level of fairness that should apply in a particular case? Court will consider what is at stake for the applicant - liberty, livelihood, etc? Is client a 'mere applicant' for a licence or is his licence being forfeited?
What should the claimant be entitled to in terms of the
'content' of fairness
- hearing, reasons for decision, being able to call witnesses, etc? This will depend on the facts of the case; what is at stake.
(Breach of the) Duty to follow the relevant
PROCEDURAL RULES
Old provisions distinguished between statute containing 'mandatory' requirements (breach would invalidate decision) and 'directory' requirements (breach
might
invalidate the decision)
Current law:
Soneji
: Consider the
consequences
of the alternatives, then infer from that what was Parliament's intention for those circumstances: could/would Parliament have intended
invalidity of decision
to be the outcome of non-compliance? This is the current approach and is the test for breach of statutory procedure cases.
Followed in cases inc JN (Cameroon); R (Herron); Guraj.
A key point: not every breach of statutory procedure by a DM will lead to their decision being invalid