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Procedural Impropriety - Coggle Diagram

- - - - involves distinction between mandatory procedural requirements and directory requirements
      - breach of a mandatory requirements would invalidate a decision, failure to comply with a directory requirement would not automatically invalidate the decision
      - ATB v Aylesbury Mushroom- a decision invalidated as they did not consult before a decision was made (mandatory per statute)
    - - R v Soneji- now courts focus on consequences of non-compliance with the requirement and ask whether, in light of those consequences, P could have intended that the outcome of non-compliance should invalidate the decision (criminal case but approach applied in administrative)
      - JN (Cameroon) v SSHD- fact that the notice did not specify the country to be deported to did not invalidate the decision
      - R (Herron) v The Parking Adjudicator- minor irregularities in road signs did not invalidate the 39 penalty notice changes accumulated in that zone
      - R v Guraj- criminal case but same principle- procedural error did not undermine fairness of the prosecution and did not invalidate the decision
- - - - the right to be heard 'audi alteram partem'
        
        meaning 'the other side must be heard'. a person affected by a public law decision should be given the opportunity to present their case
        
        courts should consider a) whether a duty has arisen b) what level of duty is owed by the public authority c) the content of the duty and whether there is a breach
        
        historically, only judge's decisions could be scrutinised for this, not administrative decisions
        
        Ridge v Baldwin- changed area to include administrative decisions
        
        a) when duty might not apply: - when there are overriding concerns relating to issues of national security - in emergency cases where public safety demands urgent actions (R v Secretary of State for Transport ex parte Pegasus Holdings Ltd) - rationing of resources cases (Cambridgeshire AHA ex parte B- cannot be expected to explain how they distribute/restrict funding) - Cases where a person has waived their right to fairness (Lloyd v McMahon)
        
        b) what level of fairness is owed
        
        Lloyd v McMahon- depends on character of the decision-making body , the kind of question it has to make and the statutory other framework in which it operates
        
        licensing cases (spectrum approach)
        
        if being refused a license, does the applicant have the right to a hearing, enabling them to present counter-arguments
        
        McInnes v Onslow-Fane- someone had various licenses withdrawn. applied five times for managers license, failing each time. he asked for a hearing but was denied, courts held no breach
        
        principles from case: case involved applicant's liberty to work was involved so a duty of fairness applied
        
        principle from case: distinction between forfeiture and application cases. forfeiture (license taken away) holder is entitled to expect this will not be done without good reason, e.g. higher level of fairness expected. notifications/reasons are appropriate. in application cases (granting new license) specific reasons may not be appropriate
        
        principles from case: intermediate category of 'legitimate expectation cases- occurs where conditions are laid down for the grant of a license and an applicant satisfies them, thus being entitled to believe the application will not be rejected without good reason
        
        contrast: R v Gaming Board for Great Britain ex parte Benaim & Khaida- re application for a certificate of consent to apply for a gaming license. application rejected. Held they should be provided with a sufficient indication: ‘the board ought in every case be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fait. And the board must at all costs be fair.’ He however did not believe they were entitled to reasons for refusal to grant the certificate once the decision to refuse the license had been made
        
        contrast explanation: In earlier Benaim case, the Board was deciding a defined issue under statute, in McInnes the situation was more general, and the Board was exercising a very broad discretion
- - - - forms of interest giving rise to bias- most common is financial interest
      - Court's approach
        
        The extent of the interest is irrelevant (so long as not too remote) as is the extent of the decision-maker’s knowledge
        
        If a decision is made by a group of individuals a pecuniary interest on the part of one member will be enough to engage the prospect of direct bias
        
        Note there does not need to be actual bias. A direct pecuniary interest is sufficient
        
        This invalidates the decision- ‘automatic disqualification’
        
        Dimes v Grand Junction Canal- large financial interest in a company that a decision was made regarding
        
        non-financial personal interest
        
        R v Bow Street Metropolitan Stipendiary Magistrate Court ex parte Pinochet Ugarte- a rare example where a non-financial personal interest was found to amount to direct bias. A judge was closely connected with a party to the proceedings
        
        Helow v Secretary of State for the Home Department- A judge would have to be actively involved in the organisation and that organisation would have to have been a party to the impunged proceedings
        
        Bovis Homes Ltd v New Forest District Council- Pinochet only applies to judicial decisions, not members of a local authority.
    - - Where the decision-maker does not have direct interest, the assessment of bias will depend upon the circumstances of the case
      - Test: Porter v Magill set out the test: the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. This also applies to public bodies
      - Helow v Secretary of State for the Home Department- a Palestinian’s rejected asylum claim was decided by someone who was discovered to be a member of the International Association of Jewish Lawyers and Jurists. They distinguished from Pinochet on the basis that the association had not intervened in the proceedings and the person had never expressed anti-palestinian views
      - R (Kaur) v Institute of Legal Executives Appeal Tribunal- view Porter v Magill as the main test and Pinochet as a mere strand of this.
      - unauthorised participation or presence
        
        Participation in a decision or presence when the decision is taken by someone who may be biased (even if not a member of the decision making body) may invalidate a decision
        
        R v Barnsley MBC ex parte Hook- the person who reported the matter which was being decided was present when decision made, decision was quashed
      - view formed in advance
        
        if the body has in some way already formed a view on the matter in question before considering it's decision, courts may intervene
        
        R v Kent Police Authority ex parte Godden- deciding whether to retire a police officer due to disability. The doctor chosen to consult had already concluded on an earlier occasion that he was suffering from a mental disorder
        
        principle way be infringed where a number of different bodies involved in a case and the same person is a member of more than one
        
        Hannam v Bradford City Council- a teacher dismissed by school governers. A committee was empowered to approve or prohibit dismissal but three out of ten members of the committee were also governers.
        
        principle does not apply where only a provisional view, not a definitive conclusion has been reached previously- R v Reading BC ex parte Quietlyn Ltd
        
        Gillies v Secretary of State for Work and Pensions- followed Porter v magill test and concluded no real possibility of bias in this case (member of disability appeal tribunal could be biased as she had a special interest and experience of preparing reports for the Benefits Agency
        
        R (Lewis) v Persimmon Homes (Teeside) Ltd- a predisposition of local authorities in relation to planning permission was not unlawful, they were entitled to have an opinion and justified in taking a general political position. It would only matter is the local authority showed a ‘closed mind’
        
        The Localism Act 2011 now makes it clear a decision-maker will not be taken to have had a closed mind when making a decision just because they had previously done anything directly or indirectly indicated what view the decision-maker might take. This only applies to local authorities, national park authority and broads authority
        
        Franklin v Minster of Town and Country Planning- only obligation on dept in cases on policy bias (where gov, having formulated a policy, must hear objections) is to genuinely consider the objections submitted.
- - - - Failure to inform a person of evidence against or decision that affects their interest will mean the person is unable to make effective representations in response
      - R v Governing Body of Dunraven School ex parte B- B was permanently excluded from school following theft on basis of a statement from another pupil. It was held unfair that the decision could be made on the basis of the statement if the excluded pupil/their parents could not see the statement/know who wrote it, as they could not prepare their own case. Judges made clear this depends on circumstances of the case
      - Errington v Minister of Health- minister had heard evidence from one side without the other being present was a breach of natural justice
      - R v Chief Constable of North Police ex parte Thorpe- failure to disclose full case against applicants did not render decisions unlawful because full notice would not have made a material difference. The police had a public duty to protect the area from peodophiles and notice may have undermined the purpose
      - Procedurally, it is important that once a person has been informed of the case against them, they are given a reasonable time frame to respond, prior to decision actually being made e.g R v Thames Magistrates ex parte Polemis- conviction was quashed as they were summoned to answer a charge and convicted the same afternoon
      - Bank Mellat v HM Treasury- case where a bank was banned from operating in the UK for counter-terrorism purposes. It was quashed on substantive grounds but also procedural. They did not notify the bank and by the time the decision was made and they had time to argue it in court, the damage had already been done. This is about fairness but also the principle of good administration
    - - Another element is whether the person should be given a right to make representations as part of the decision-making process. Whether the form can be confined to oral/written will depend on the nature of the decision and process itself.
      - There is not an automatic, common law duty to hold personal or oral hearings. There have been several cases where a lack of hearing has not affected the fairness of a decision e.g Lloyd v McMahon
      - R v Army Board of the Defence Council ex parte Anderson- soldier made racial discrimination complaint which was referred to the Army Board. His request for an oral hearing was rejected. Decision was quashed (on different grounds).
        
        established criterea for if oral hearings are required to meet standards of fairness: - subject matter and circumstances - nature of decision to be made - whether there are substantive and complex issues of fact that cannot be satisfactorily resolved on the available written evidence
      - R (Smith and West) v Parole Board- re refusal to hold hearings in respect of the parole board. Parole board was not required to hold an oral hearing every time a prisoner released on license resisted his recall to prison. However, where the board would be assisted in its task of assessing risk by having an oral hearing, for example to assess character or allow opportunity to raise mitigating factors, this should be done
      - Osborn v Parole Board- in another case with a parole hearing, it was found refusal of an oral hearing breached procedural fairness. They re-iterated the context. They however stated ‘the board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense’
      - multi-stage hearing/timing
        
        Usually there is no right to be heard in the initial stages, usually later in the process. If there is a fair hearing at some appropriate point, it should be seen as fair even if the applicant believes it to be a wrong type of hearing at the wrong time e.g Wiseman v Borneman.
    - - There is not an automatic common law duty to call witnesses in a case. This depends on what’s at stake, nature of the decision-making body and proceedings, whether the court feels a legalistic approach is appropriate. R v hull Prison Board of Visitors ex parte St Germain- held witnesses necessary to prove alibi due to seriousness of punishment if decision found against them (prison riot).
    - - Where the rules of the public body do not specifically exclude legal representation, the body has discretion to decide whether or not to allow it
      - There is no general right at common law to be legally represented and it can be counter-productive (R v Board of Visitors of HM Prison the Maze ex parte Hone).
      - R v Secretary of State for the Home Department ex parte Tarrant- suggested factors to be considered when looking at the right to legal representation: seriousness of charge, likelihood the point of law may arise, ability of the person to conduct his own case, the need for a speedy process
    - - An applicant may argue a decision should be quashed because they were not given reasons for the decision taken
      - A duty to give reasons may be imposed by statute. As with other areas within the ‘right to be heard’ there is no clear common law duty to give reasons for a decision- as confirmed in R (Hasan v Secretary of State for Trade and Industry). there is however a notable trend of desirability of giving reasons, in particular when fundamental issues at stake
      - Leading case: R v Secretary of State for the Home Department ex parte Doody: ‘the law does not at present recognise a general duty to give reasons for administrative decision’, but in some circumstances a duty is implied
      - Ex parte Cunningham: nature of the relevant decision had been unexpected and the general rule of no duty should be departed from. The result of the case was a ‘calling out’ for reasons to be given
      - R v MOD ex parte Murray: absence of any right of appeal supports the need for reasons.
      - The duty to give reasons will not be necessary in circumstances where it would be unduly onerous, because of complexity or the range of factors to be considered. E.g R v Higher Education Funding Council ex parte Institute of Dental Surgery
      - Article 6 influence
        
        Stefan v General Medical Council- they stated ‘cases where reasons are not required as now the exception rather than examples of the norm
        
        Oakley v South Cambridgeshire District Council- re why reasons should be given: ‘improving quality of the decisions by the public body, promoting public confidence, facilitating the opportunity to consider whether the decision was lawfully reached, individual may more readily accept why a decision has been made. In general they should be given unless there is a proper justification for not doing so.