3) Procedural Impropriety Flashcards
1
Q
The third ground of Judicial Review Identified in GCHQ?
A
Procedural Impropriety
2
Q
Procedural impropriety concerns
A
A public decision makers failure to follow correct statutory procedure and/or act fairly in a more general sense, as measured against common law standards.
3
Q
Procedural Impropriety as a concept covers two areas
A
1) Failure to observe procedural statutory rules
2) Duty to act fairly (common law fairness)
4
Q
Failure to observe statutory rules
A
Extension of ultra vires, closely related to the ground of illegality.
Procedural ultra vires - rerquires bodies to follow the requirements of a procedural nature that have been laid down in statute.
5
Q
Historic approaches to procedural impropriety
A
Distinction between mandatory and directory procedural requirements.
Failure to comply with mandatory would invalidated a decision, but not the case for directory.
6
Q
Agricultural, Horticultural and Forestry Industry Training Board v Ayelsbury Mushrooms Ltd
Old approach to procedural impropriety
A
Court held that an order issued by the Training Board was not binding upon the company as had not been consulted = mandatory provision.
7
Q
Modern approach
To procedural impropriety
A
More flexible following on from R v Soneji
= now focus on the consequences of non compliance.
Did Parliament intend these consequences result in the invalidity of the decision.
8
Q
JN(Cameroon) V SSHD
Procedural impropriety
A
Deportation Notice did not specify the country that JN should be deported - this did not invalidate the decision.
- Did not hamper ability to appeal, particularly when the purpose was to deport to Cameroon.
- Was clear from decisions
Look at the consequences
9
Q
R(Herron) v The Parking Adjudicatorr
Procedural impropriety
A
CoA minor irregularities in road signs do not invalidate the s39 penalty notice charges accumulate in that zone.
10
Q
R v Guraj
Procedural Impropriety
A
Series of procedural errors did not undermine the safety of prosecution.
Serious error had been remedied by the Crown, therefore had not suffered unfairness.
11
Q
Duty to act fairly comprises of two central common law rules
A
1) The right to be heard
2) The rule against bias
12
Q
Duty to act fairly - the right to be heard
A
The other side must be heard
Meaning that a person affected by a public law decision should be given the opportunity to present their case.
13
Q
What is the approach of the courts when determining the right to be heard
A
1) Whether a duty has arisen
2) What level of duty is owed by the public authority
3) The content of the duty and whether there is a breach.
14
Q
Duty to act fairly - The rule against bias
A
*No one should be a judge in their own cause. *
The courts will consider the context of a case and determine if there has been direct or indirect bias.
15
Q
When does the duty for a right to be heard arise.
A
Ridge v Baldwin
A turning point as the court held that it did not matter whether the decision was judicial or administrative
The question for the court should be the extent of fairness required in a given situtation
16
Q
When might a duty? re: right to be heard not apply
A
1) When there are overriding concerns relating to issues of national security
2) In emergency cases, where public safety demands urgent actions
3) Rationing of resources case
4) Cases where a person has waived their right to fariness.
17
Q
When might a duty for right to be heard be overidden / significantly modified?
National security
A
See GCHQ
Duty to consult the trade union was overidden by national security concerns
= legitimate expectation case.
18
Q
When might a duty for right to be heard be overridden / significantly modified?
Emergency cases
A
eg R v SoS Transport, ex parte Pegasus Holdings lTd
Relating to air transport safety.
19
Q
When might a duty for right to be heard be overridden / significantly modified?
Rationing of Resources cases
A
Courts frequently find that authorites cannot be expected to put forward a detailed case.
R v Cambridge AHA ex parte B
Found that it was not unfair for authority to give detailed reasons why it could not fund expensive cancer treatment for a child patient.
20
Q
When might a duty for right to be heard be overridden / significantly modified?
Waived right to fairness
A
Lloyd v McMahon
21
Q
What is the level of fairness owed?
A
- Depends on the context of the issues
Lloyd v McMahon is the key case
22
Q
Lloyd v McMahon
Level of fairness
A
” rules of natural justice are not engraved on tablets of stone”
Need to consider the character of the decision making body, the kind of question it has to make and the statutory or other framework in which it operates.
23
Q
Level of fairness in licensing cases
A
Does an applicant have the right to a hearing enabling to understand why they have been turned down and giving them the opportunity to present counter arguments.
Courts have developed a spectrum appraoch
24
Q
McInnes v Onslow-Fane - FACTS
A
Applicant held various licences from BB of Control
These were withdrawn in 1973. Then applied five times. On applying for a sixth time, he asked for an oral hearing and notification of unfavourable points.
Request refused and application failed.
25
McInnes Judgement - Held
1) Case involved applicant's **liberty to work** = **duty of fairness applied**.
2) Distinction between **forfeiture** and application cases. Higher level of fairness should be expected if taking away a licence.
3) Intermediate category of legitimate expectation cases
4) McInnes was **merely an applicant.**
26
R v Gaming Board for GB, ex parte Benaim & Khaida
Application for cerificate of consent to apply for a gaming licence under the Gaming Act 1968.
Application was rejected and the applicants argued that they had a right to know the objections raised against them so that they could answer.
Lord Denning held they should be provided with **sufficient indications** - but **not entitled to reasons** for the refusal to grant the certificate.
27
Difference between cases of *Benaim* and *McInnes*
## Footnote
Level of Fariness
McInnes = **general**, court exercising very broad **discretion**
Benaim =the Board was deciding a **defined** issue under **statute**
28
What are the two central common law rules entailed in the duty to act fairly?
1) The right to be heard
2) The rule against bias
29
Which case pertains to when the duty to act fairly arises
Ridge v Baldwin
30
Which case pertains to the level of duty owed?
Lloyd v McMahon
McInnes
31
Five broad elements focus of challenges re: the "right to be heard"
1) **Notice** of the case against a person
2) Right to make **representations**
3) **Witnesses**
4) Legal **representations**
5) **Reasons**.
32
Notice of the case against a person
## Footnote
Right to be heard
= Procedural fairness, **right to have notice** of the case against or involving them.
33
R v Governing Body of Dunraven School, ex parte B
| Right to be heard
Permanent exclusion for theft of teachers bag.
Parents not allowed to see the witness statement.
Not fair to use evidence that parents **had not heard as could not prepare.**
| Right to be heard - Notice
34
Errington v MoH
| Right to be heard
Breach of natural justice
Minister had heard evidence from one side without the other side being present.
| Right to be heard - notice
35
R v CC of North Wales Police, ex parte Thorpe
Failure to disclose the full case against the applicants did not render decisions unlawful
**Full notice would not have made a material difference**
36
It is of procedural importance, that once they have been informed of the case....
## Footnote
Right to be heard - notice
They are given **a reasonable amount of time to respond**
## Footnote
Notice - reasonable time
37
R v Thames Magistrates, ex parte Polemis
| Right to be heard
Ships master summoned to answer a charge under the Control of Pollution Act 1971
Required to attend court **that afternoon**
Subsequently quashed for unfairness
## Footnote
Notice - sufficient time
38
Bank Mellat v HM Treasury (No2)
## Footnote
Fairness - right to be heard
**Lack of notice** of Treasury's intention to make direction under the Counter Terrorism Act 2008.
Allowed bank to challenge - but damage done.
Quashed on both **procedural** and **substantive** grounds.
## Footnote
Right to be heard - notice
39
Fairness, proper notice and the opportunity to make representations are core tenets of what principle?
Good administration.
40
Right to make representations
## Footnote
Right to be heard
Right to make representations as part of the decision making process.
Whether fair for representations to be confined to written form, or involve an oral hearing - **depends on the nature of the decision and process itself.**
41
Common law - right to make representations
## Footnote
Right to be heard
No automatic common law duty to hold personal or oral hearings.
**Lack of hearing may not be held to have affected the fairness of a decision.**
42
Lloyd v McMahon
## Footnote
Right to be heard - representations
**Lack of hearing** has been held **not to have affected** the fairness of a decision
## Footnote
Right to be heard - representations
43
R v Army Board of the Defence Council, ex parte Anderson
FACTS
## Footnote
Right to be heard
A soldier made a complaint of racial discrimination, which was referred to the Army Board
**Request for oral hearing was rejected by the Board**
## Footnote
Right to be heard - representations
44
R v Army Board of the Defence Council, ex parte Anderson
HELD
## Footnote
Right to be heard
CoA quashed the Board's decision
**Illegality grounds** that the Board had **fettered it's discretion** by having **inflexible policy on oral hearings.**
## Footnote
Right to be heard - Representations
45
Taylor LJ in Ex Parte Anderson
## Footnote
Hearings
Hearings were not necessary in all cases of this nature.
Laid out criteria to consider whether hearing necessary.
## Footnote
Right to be heard - representations
46
Taylor LJ in Ex Parte Anderson
Criteria to consider
| Right to be heard
When deciding if oral hearing required for fairnes
1) **Subject** matter and circumstances
2) **Nature of the decision** to be made
3) Whether there are **substantive and complex issues of fact** that cannot be satisfactorily resolved on available written evidence.
## Footnote
Right to be heard - Make representations
47
R v (Smith and West) v Parole Board
FACTS
## Footnote
Right to be heard
Applicants appealed against a decision upholding the refusal of the Parole Board to hold oral hearings in respect of their opposition to the revocation of their licenses.
## Footnote
Right to be heard - representations
48
R v (Smith and West) v Parole Board
HELD
## Footnote
Right to be heard
Parole Board not required to hold oral hearing every time a prisoner released.
However, it was held that an oral hearing **would have assisted with the task of assessing release**
* Common law fairness
* Art 6 of the ECHR
## Footnote
Right to be heard - representations
49
Osborn v Parole Board
## Footnote
Right to be heard
* Central importance of upholding **fairness to the individual**
* Need to involve individuals in processes affecting their life
Breached the requirements of procedural fairness owed at common law.
## Footnote
Right to be heard - representations
50
Lord Reed in Osborn v Parole Board
## Footnote
Right to be heard
- Obligation to have oral hearing = depends on context of given decision.
- Board should guard against temptation to refuse oral hearings as a means to **save time, trouble and expense**
## Footnote
Right to be heard - represetations
51
Multi stage procedures
## Footnote
Right to be heard
No right to be heard in the intial stages, may be right to be heard later in the process.
**If there is a fair hearing at some appropriate point** = sufficient.
## Footnote
Right to be heard - representations
52
Witnesses - position at common law
## Footnote
Right to be heard
No automatic common law duty to call witnesses.
Duty to act fairly may be infiringed if a person is not allowed to call witnesses
**Depends on what is at stake and whether a legalistic procedure is appropriate**
## Footnote
Right to be heard - witnesses
53
R v Hull Prison Board of Visitors, ex parte St Germain
## Footnote
Right to be heard
Prisoners charged with breaches of prison discipline during riots were entitled to have **alibi** witnesses because of the **seriousness** of punishment
## Footnote
Right to be heard - witnesses
54
Legal representation - position at common law
## Footnote
Right to be heard
No general right at common law to be legally represented
**can be seen as counter productive**
Where rules of public body in question do not exclude legal rep - **body has discretion to decide whether to allow it**
## Footnote
Right to be heard - legal representation
55
R v Board of Visitors at HM Prison, the Maze, ex parte Hone
## Footnote
Right to be heard
Can be counterproductive to have a right to be legal representation
## Footnote
Right to be heard - legal representation
56
R v SoS for Home Dept, ex parte Tarrant
## Footnote
Right to be heard - legal representation
Factors to consider when assessing right to legal rep
* **Seriousness** of the charge
* Likelihood that a **point of law** will arise
* **Ability** of the person to conduct his own case
* Need for a **speedy** process
## Footnote
Right to be heard - Legal representation
57
Reasons for a decision - statute
## Footnote
Right to be heard
* A duty to give reasoning may be imposed by Statute.
* Such a duty is imposed for instance by the **Tribunals and Inquiries 1992**
## Footnote
Right to be heard - reasons
58
Providing reasons for a decision - position at common law
| Right to be heard
No clear common law duty to give reasons for a decision. **R(Hasan) v SoS for Trade and Industry**
Trend toward desirability for accountability.
| Right to be heard - Reasons
59
R(Hasan) v SoS for Trade and Industry
## Footnote
Right to be heard
No clear common law duty to give reeeasons for a decision
## Footnote
Right to be heard - Reasons
60
Ex parte Cunningham
## Footnote
Right to be heard - rogue decision
Nature of the relevant decision had been **unexpected**, or aberrant.
The case **called out** for reasons to be give
General rule of no reasoning departed from
## Footnote
Right to be heard - Reasons
61
R v SoS for Home Dept, ex parte Doody
| Right to be heard - reasons
Law does not give a general duty to give reasoning.... but **may be implied** in certain cases.
| Right to be heard - reasons
62
Doody - HELD
## Footnote
Right to be heard - reasons
* Found that fairness required the Home Secretary to give reasons for refusing to allow the release of prisoners who had served their minimum sentence.
* Purpose of **reitrbution** and **deterrence**
## Footnote
Right to be heard - reasons
63
R v MoD, ex parte Murray
## Footnote
Right to be heard - reasons
Court martial
Court provided a summary of the considerations and principles affecting the need to give reasons.
* Absence of any right of appeal
* Role of reasons in highlight errors
= positive factors in support of the need for reasons.
## Footnote
Right to be heard - reasons - highlight errors
64
R v Higher Education Funding, ex parte Institute of Dental Surgery
## Footnote
Right to be heard - reasons
Duty to give reasons may not be necessary if **unduly onerous** = refusal to give research grant funding to Institute.
## Footnote
Right to be heard - reasons - not if onerous
65
ex parte Al fayed
## Footnote
Right to be heard
Court may decidy that Duty of Fairness only requires a **general overview of the gist.**
## Footnote
Right to be heard - reasons - gist
66
Stefan v GMC
## Footnote
Right to be heard - reasons
Evolving approach to this aspect of procedural fairness.
**where reasons are not required are becoming exceptions rather than the norm**
* Influence of Art 6
## Footnote
Right to be heard - Reasons - trend
67
Oakley v South Cambridgeshire DC -
**TREND**
## Footnote
Right to be heard - reasons
Indicator that courts are moving towards traditional assumption about the need to give reasons in public law decision making
## Footnote
Right to be heard - reasons - trend
68
Oakley v South Cambridgeshire DC
**Case**
## Footnote
Right to be heard - reasons
LA granted planning permission gor CCFC to build stadium on gren belt land - contrary to planning officer reccommendations.
No reasons were provided.
**In general reasons should be given unless there is a proper justification not to**
* Improve quality of decision making
* Focus mind
* Improve public confidence
## Footnote
Right to be heard - reasons should be given
69
Ex parte McCarthy
| Rule against bias
## Footnote
Is doing justice enough
Justice should not only be done, but **manifestly** and **undoubtedly** be seen to be done
## Footnote
Should be seen to be done
70
The two elements of the "rule against bias"
* Direct bias
* Indirect bias
71
**Direct bias** - types of interests
## Footnote
The rule against bias
* Ususally **financial interests** on the part of the decision-maker
72
The courts' approach to direct bias
## Footnote
The rule against bias
* Extent of interest is irrelevant, as is th extent of the decision maker's knowledge.
* If decision is made by a group - a pecuniary interest of one member is not enough.
* Does not need to be actual bias - direct pecuniary interest is sufficient
73
Does there need to be actual bias for a finding of direct bias?
* No, a direct pecuniary interest is enough
74
If a decision is made by a group, is a pecuniary interest within the group enough for direct bia?
No - if made by a group
75
Extent - as relates to direct bias
* Extent of interest is irrelevant
* Extent of knowledge is also irrelevant
76
What are the consequences of direct bias?
Direct bias will **invalidate** a decision
= **automatic disqualification**
## Footnote
*Dimes v GJC*
77
Dimes v GJC
## Footnote
Rule against bias
* LC affirmed orders sought by GJC
* Had a large financial interest in the company
* **Disqualifiication of LC and orders invalidated**
## Footnote
Direct bias
78
Can non-financial personal interest ever amount to direct bias?
* Yes
* Rare, but non-financial personal interest **can amount to direct bias**
## Footnote
See Pinochet case
79
Pinochet case
## Footnote
Rule against bias
L Hoffman = Director of Amnesty International.
* Amnesty given permission to intervene in the case & mad submissions.
* Set aside decision - L Hoffman disqualified
1. Closely connected with party to the proceedings.
2. Promotion of a cause L Hoffmna was involved in.
## Footnote
Rule against bias - direct bias - non financial
80
Helow v SoS for the HD
*Organisation membership*
## Footnote
Rule against bias
* Mere membership of an organisation is not enough - must be actively involved
* Organisation would have to be a party of the impugned proceedings to apply
## Footnote
Rule against bias - direct bias - non financial
81
Is membership of an organisation enough to staisfy the Principle of Direct Bias outlined in *Pinochet*?
* No, membership is not enough
* Must be actively involved in organisation
* Organisation must be party to the proceedings
| Helow v SoS for the HD
## Footnote
Rule against bias - direct bias - non financial
82
Does the principle of *Pinochet* apply to local authorities?
*Bovis Homes Ltd v New Forest District Council*
*Pinochet* principle applies to **judicial functions**, not to members of the local authority
83
How is th e assessment of indirect bias made?
* On the particular circumstances of the case
* *Porter v Magill* is the key case
84
Define Indirect Bias
* Whether the **fair minded** and **informed** observer
* Having **considered all the facts**
* Would conclude there was a **real possibility** that the tribunal was biased
85
Does the rule relating to Indirect Bias apply to Local Authorities?
Yes, applies to **all decision making bodies, not just tribunals**
86
Helow v SoS for the HD
## Footnote
Indirect Bias
* Palestinan asylum claim rejected
* Lady Cosgrove a member of the Int Assoc of Jewish Lawyers and Jurists
* Membership not enough.... distinguished from *Pinochet* as not party to the proceedings.
* Would be different if Lady Cosgrove voiced anti-palestinian views
* **Appeal dismissed with reference to *Porter and Magill***
87
P(Kaur) v Inst of Legal Executives
LJ Rix
* *Pinochet* principle = a strand of *Porter v Magill*
88
Examples of Bias in operation
* Unauthorised participation or presence
* View formed in advance
* Policy bias
* Necessity
89
Examples of Bias in operation
## Footnote
**Unauthorised participation or presence**
Participation in a decision, or evene **mere presence** when the decision is taken, by someone who may be biased, **even if not part of the decision-making body**, may invalidate a decision
* Ex parte Hook
* R (Beeson) v DCC
90
R v Barnsley MBC, ex parte Hook
| Bias in operation - presence
* Market trader who lost license
* Decision invalidated
* Market manager who reported incident was present at the decision.
**Mere presence of somone who is biased = enough to invalidate**
91
R(Beeson) v DCC
## Footnote
Bias in operation - presence
* HRA has strenghtened the rule against bias.
* Compliance with **Art 6** = right to be heard by an **independent and impartial tribunal**
* Lack of independence of review on residential care, as had been involved in the case at an earlier stage - important to consider **decision making process as a whole**
92
Examples of Bias in operation
## Footnote
**view formed in advance**
* Courts require bodies to exercise decision making **fairly and objectively**
* If body has already formed a view of the matter in question before = potential of biase
* *Ex Parte Godden*
93
Ex parte Godden
## Footnote
Bias - view formed in advance
* Deciding to retire a police officer on medical ground
* Doctor used for evidence had been chosen before - had already formed the view of mental disorder.
* Should not have been involved **as had already formed a view** - therefore not objective
94
If a number of different bodies are involved in the decision of a case, and same person is a member of more than one - what principle doees that infringe on?
* Rule against bias
* View many be formed in advance * *Eg Hannam v Bradford CC*
* Does not apply where only a provision view has been reached *eg ex pare Quietlyn*
95
Hannam v Bradford CC
## Footnote
Pre-formed view
* Overlap of membership of bodies making decision.
* Committee empowered to approve or prohibit teachers dismissal
* Approve it - 3 / 10 of the council committed also on the board of governers
**Bias due to pre-formed view**
96
If a provisional view has been reached, does the principle of pre-formed view impacted bias apply?
* No, only definitive conclusions
* **Ex Parte Quietlyb**
| Bias - pre-formed view
97
Gillies v SoS for Work and Pensions
| Pre formed view bias
* Member of disability tribunal was biased because she had special interest fin reporting for the Benefits Agency
* Porter and McGill Test used - no bias found
98
R (Lewis) v Persimmon Homes (Teesside) Ltd
| Bias - Preformed view
* Predisposition of local councillors in relation to a planning application was not unlawful
* Need to respect political autonomy of local councillors
**Would only be unlawful if had been pre-determined = "closed mind"**
99
Will a person be taken to have a closed mind when making a decision, because they have previously done something that indicated the view the decision maker?
| Bias - preformed view
No
**Localism Act 2011**
* Local authorities
* National Park Authority
* Broad Authority
100
Examples of Bias in operation
| **Policy Bias**
* May arise where government dept, having formed a policy, must hear objctions against the policy
* Overlap with **fettering of discretion ideas**
* *Franklin v Minister of Town and Country Planning*
101
Franking v Minister of Town and Country
| Policy Bias
* Only obligation is to **genuinely consider** any onligations submitted
* If this is done, having adopted a certain view point will not invalidate a certain position
*
102
Examples of Bias in operation
| **Necessity**
* Duty to act fairly may give way to necessity
* If only one person is empowered to decide a question - cannot be disqualified for bias
* Then no decision could be made
* *Eg Dimes*- LC had to sign the enrolement
* *Wilkinson v Barking Corp* - Statute gave LA pension rights under certain condition, statute provided any dispute to first be decided by the LA
103
*Wilkinson v Barking Corp*
| **Bias - Necessity**
* Statute gave LA pension rights under certain condition,
* statute provided any dispute to first be decided by the LA
* Upheld authority of LA to decide statutes
