Please enable JavaScript.
Coggle requires JavaScript to display documents.
Grounds for Judicial Review: Procedural Impropriety - Coggle Diagram
Grounds for Judicial Review: Procedural Impropriety
Natural Justice & the Duty to Act Fairly
Procedural Impropriety
There are 2 heads to this category:
a) Th decision-maker has failed to observe procedural rules as stipulated in a statute or secondary legislation
b) The decision-maker has failed to observe the rules of natural justice or failed to act fairly
Procedural Justice
Provides an individual with a fair opportunity to influence the outcome of a decision
Natural Justice in Administrative Law: The Rule Against Bias
The rules of procedure and laws of evidence governing court proceedings don't apply to other proceedings i.e. tribunals
Courts have thus introduced standards to ensure that such proceedings are conducted fairly.
Standards are known as natural justice
Natural Justice and the Duty to Act Fairly
The rules of natural justice are common law rules - although, in may instances, their requirements may be made statutory
The requirements of fairness are reflected in Art.6 ECHR, now enforceable in domestic courts under the HRA 1998
Art.6: requires a
'fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'.
Statutory Procedural Rules - Ultra Vires
Bradbury v Enfield London Borough Council (1967):
Per the Education Act 1944 - if a local education authority intends to establish/cease to maintain existing schools, notice must be given to the minister, following public notice given to allow interested parties to comment.
The Council breached the requirement of public notice and C sought an injunction. Council claimed that educational chaos will occur if they needed to comply with procedural requirements. That plea met with little sympathy in court.
Per Lord Denning:
"If a local authority doesn't fulfill the requirements of the law, court will see that it does fulfill them. It won't listen readily to suggestions of 'chaos'. The department and the council are subject to the rule of law and must comply with it like everyone else. Its important to uphold the law. Parliament has laid down the requirements to ensure electors can make their objections and have them properly considered. We must see that their rights are upheld".
Duty to Hear the Other Side
The right to a fair hearing:
audi alteram partem
:
Its a fundamental requirement of justice where a person's interest are affected by judicial / administrative decision, he/she can both know and understand any allegations made, and make representations to the decision maker to meet the allegations
Ridge v Baldwin (1964):
Facts: C (Ridge) has been suspended from duty following charges of conspiracy to obstruct the court of justice. Despite cleared of any allegations, judge made comments critical of C's conduct. Subsequently, C was dismissed from the force and was not invited to attend to meeting that made the decision to dismiss him. C appealed to the Home Secretary who dismissed his appeal. He then sought a declaration that the dismissal was ultra vires on the basis that the committee violated the rules of natural justice.
Lord Reid's judgment:
It appears that one reason as to why authorities on natural justice found difficult to reconcile is that insufficient attention has been provided on the great difference between various cases to apply the principle. A minister when considering objections can be very different from what a watch committee should do when considering whether to dismiss a chief constable.
The 4 elements of a "Fair Hearings":
Evidence / accusations
Right a a hearing / to make representations
Right to legal representations
Cross examination
The Rule Against Bias: nemo iudex in causa sua
The rule against bias is strict:
Its not necessary to show that actual bias existed, the merest appearance / possibility of bias will suffice.
Justice should not only be done but should manifestly and undoubtedly be seen to be done
The suspicion of bias must however be a reasonable one. Both financial / personal interest in a case may disqualify a person from adjudicating
Financial bias:
Fimes v Grand Junction Canal (1852):
Lord Cottenham LC held that shares in the canal company involved in litigation. The HoL set aside the decision where he adjudicated despite the fact that:
No one can suppose that Lord Cottenham can be in the remotest degree influenced by interest... Its one of the last importance that the maxim that no one is to be judged in his own cause should be held sacred.
Other bias:
Judges as with with any other person may exhibit bias by virtue of race, sex political backgrounds etc. When adjudicating, they must be demonstrably impartial. This impartiality involves:
judge listening to each side with equal attention and coming to a decision on the argument, irrespective of his personal view on litigants
Whatever his personal beliefs, the judge should seek to give effect to the common values of the community, rather than any sectional system of value to which he may adhere
R v Bow Street Metropolitan & Stipendiary Magistrate ex parte Pinochet Ugarte (1999):
Regarding extradition proceedings against the former Chilean Head of State. Lord Hoffman had links with Amnesty International (the charity pressure group against extradition). There was no actual bias on part of Hoffman, but due to public perception, the proceedings were abandoned and re-heard by a new bench of 7 judges.
General Duty to Act Fairly
Irrespective of the labelling attached to the body in question, there exists a duty to act fairly.
Principle of fairness can be seen in
Re HK (An Infant) (1967)
where it was held that immigration officers were not obliged to hold a hearing before deciding an immigrant's status, they were nevertheless under an obligation to act fairly.
The right to make representations
Inevitable, the extent to which the individual is enabled to make representations to a decision-making body will be inextricably-linked to the question of the right to a hearing.
Where there exists no an oral hearing, the question will be, the view of the individual can be put into decision-making authority. It may well be the case that the opportunity to make written submissions will satisfy the requirements for justice and fairness
R v Race Relations Board, ex parte Selvarajan (1975):
Held that the Race Relations Board had acted fairly when it considered written witness statements instead of allowing an oral hearing as the facts in the case had not been in dispute
Challenging unfairly / improperly obtained evidence
The admissibility of evidence
R v Board of Visitors ex parte St. Germain (No.2) (1979):
Prisoners who had been involved in a prison riot were charged with breaches of the Prison Rules. During the hearing, hearsay evidence was given to the court on behalf of a number of officers who were unable to attend the hearing.
Held: The decision of guilt on the charges was challenged by judicial review proceedings, on the basis that Board of Visitors breached rules of natural justice. Jane J said that although ruling out hearsay evidence could never be admissible, she nevertheless ruled in special circumstances. The Board should have ruled the hearsay inadmissible. Decision of the Board was quashed by order of certiorari
Legal representation
The availability of legal representation:
Whether or not legal representation is available as of right will depend on the nature of the hearing and natural rights affected.
But it may prove to be unnecessary / counterproductive to proceedings and accordingly, the courts will be unwilling to concede a general right to representation.
When proceedings are before a tribunal, the right to be represented is at discretion of the tribunal.
General principle according to the Royal Commission on Legal Services is that its desirable for every applicant before a tribunal will be able to present his case in person / obtain representation
Giving reasons for a decisions