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Law and Government : Year 2 Term 1 > Common Law: Procedural Improprietory > Flashcards

Common Law: Procedural Improprietory Flashcards

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1
Q

What is substantive justice?

A

to make sure powers aren’t exceeded

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2
Q

Procedural fairness?

A

fair opportunity to influence outcome of decisions

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3
Q

Procedural Fairness in common law

A

Called Natural Justice

  • rules against bias
  • duty to act fairly
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4
Q

Procedural Fairness in the ECHR

A

Art 6
SETS OUT REQUIREMENTS OF FAIR TRIAL AND HEARING AND FAIRNESS
Indépendant and impartial tribunal

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5
Q

What is required for procedural fairness?

A

depends on situation

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6
Q

Possible requirements requirement for procedural fairness?

A
  • due process
  • sometimes consultation
  • Representation
  • notice of process
  • reasons
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7
Q

Bias

A
  • unbiased decisions
  • no conflict of interests
  • no actual or perceived bias
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8
Q

3 elements for Art 6 ECHR

A
  • civil rights, obligations or criminal charges
  • fair and public hearing
  • indépendant and impartial tribunal
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9
Q

Factors contributing to entitlement to procedural fairness?

A
  • statute provides specific procedure
  • relationship between body and individual
  • legitimate expectation
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10
Q

Osborn v Parole Board(2013) facts

A
  • not given a oral hearing for their appeal cases.

- said considering what was at stake should have been given oral hearing.

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11
Q

aRT 5(4) OF ECHR says where their freedom is infringed must have access to proper court procedures

A

used this in Osborn v Parole board 2013 as ground for review

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12
Q

Decision in Osborn v Parole Board 2013?

A

Shouldn’t look at convention should look at common law

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13
Q

2 important values of fairness identified in Osborn v Parole Board 2013?

A

1) Prevent effects of perceived injustice

2) Rule of Law: by listening to people promotes congruence of decision maker and the law.

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14
Q

Convention too vague, look to common law first then convention

A

Lord Reed:

Osborn v Parole Board (2013)

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15
Q

Requirements of ECHR fall in-between two common law categories

A
  • Bias

and

  • Procedural Fairness
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16
Q

Facts of Cooper v Wandsworth Board of Works 1863?

A

Council demolished his house without giving notice.

- said against natural justice

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17
Q

What did Cooper v Wandsworth Board of Works 1863 say natural justice required?

A
  • universal application
  • justice
  • fair process
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18
Q

Did the principles of natural justice apply in the same way if the board acted judicially or ministerially?

A

No, apply to judicial decisions not admin/ ministerial

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19
Q

Facts of Ridge v Baldwin 1963?

A

Policeman sacked for corruption but given no chance to represent himself at the hearing.

Said against natural justice.

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20
Q

Does Ridge v Baldwin 1963 continue the idea that natural justice only applies judicially?

A

No, says it applies to both.

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21
Q

Not about policy, about individuals and the way the decision was made

A

Lord Roskill,

GCHQ case 1985

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22
Q

What case shows what fairness demands?

A

Lloyd v McMahon (1987)

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23
Q

Facts of Lloyd v McMahon (1987)?

A
  • misconduct of councillors
  • ordered to give back money
  • argued unfair as no oral hearing
  • decided not necessary
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24
Q

What did Lord Bridge say in Lloyd v McMahon fairness demands?

A

depends on

  • decision making body
  • kind of decision
  • statutory framework around it
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25
Q

No set standards to be applied across the board

A

R v SoS for the Home Department ex carte Doody (1994)

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26
Q

Facts of R v Sos of the Home Department ex part Doody (1994)?

A
  • mandatory life prisoners
  • judges had to say life, SoS could alter
  • should have been able to make representations
  • court said yes, and SoS should have given reasons for extending sentence
  • individual representations would be fine
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27
Q

6 standards laid out in R v SoS for the Home Department ex part Doody 1994?

A

1) Parliament always intends fairness in circumstances
2) standards flexible, circumstantial
3) contextual - standards change, not one set
4) always look to statute
5) often require representation if decision infringes you
6) often need to know of what allegations are to be fair

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28
Q

Cooper v Wandsworth Board of Works (1863) said on notice?

A

Notice: should know what has been decided and how it will effect them so they can react

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29
Q

Cooper v Wandsworth Board of Works (1863) on Hearing?

A
  • not always required
  • written submissions sometimes enough
  • can be expensive
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30
Q

Evidence/cross examination/representation?

A

Good decision may sometimes need allegations tested

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31
Q

Need to give good reasons?

A

R v SoS for the Home Department ex part Doody (1994)

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32
Q

Duty to give notice in what case?

A

SoS for the home Department v AF (No 3) 2009

concerned control orders

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33
Q

What did SoS for the Home Department v AF (No 3) (2009) say about notice?

A

Justice means we need to know the case against us

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34
Q

Justice requires notice in R v SoS for the Home Department ex part Doody (1994) ?

A
  • often need representation

- can’t really do this if don’t know the case they’re answering

35
Q

In domestic law there is no general duty to give reasons

A

R v SoS for the Home Department ex part Doody (1994)

36
Q

Is there a greater duty to give reason in EU law?

A

Yes

37
Q

Fairness regarding circumstances?

Osborn V Parole Board 2014

A

Depends on circumstances

No universal set of rules

38
Q

General guidance given on Osborn v Parole Board 2014?

A
  • importance of what is at stake
  • oral needed when facts are in dispute or mitigation needs to be heard

basically: what is going to happen to them and what is the consequences?

39
Q

R (Bourgass) v SoS for Justice (2015)

say about duty to give reasons?

A

should know basis of why decision was made (but remember no duty to give reasons) just basics so they can respond

40
Q

Rule against Bias (feeds into fairness)

A

You can’t decide the case if you’re party to the outcome

Dimes V Grand Junction Canal Proprietors 1852

41
Q

Facts of Davidson v Scottish Ministers?

A
  • hearing case on scope of Scottish Ministers

- But lord Advocate had already given evidence on the scope of Art 21 (part of argument) so entered with bias

42
Q

What did Davidson v Scottish Ministers say?

A

That judges must decide cases free of all but the legal merits of the case. No preconceptions

43
Q

2 forms of bias?

A

Actual Bias

Apparent Bias

44
Q

Effect of actual Bias?

A

Automatic disqualification

45
Q

Where does bias not apply?

A
  • waiver (know and ignore bias)
  • necessity
  • policy/political bias
46
Q

Key case were actual bias was discussed?

A

Davidson v Scottish Ministers 2004

47
Q

3 reasons for actual bias stated in Davidson v Scottish Ministers 2004?

A
  • personal interest in outcome
  • friend/family is a party/witness
  • Unable to be objective
48
Q

Where was actual bias found?

A

R v Bow Street Stipendiary Magistrate ex p Pinochet (no 2 ) 2000

49
Q

Why was actual bias found in R v BowStreet Stipendiary Magistrate ex part Pinochet (no 2) 2000?

A
  • Lord Hoffman heard the case but was also Director of Amnesty international who brought the case to court.
50
Q

What were the two reasons it was important for actual bias to have been found in R v Bow Street Stipendiary Magistrate ex part pinched nO 2 2000?

A
  • So justice was done

- so justice could unquestionably be seen to be done

51
Q

Case of direct interest?

A

Case of Simes (Lord Chancellor had shares in company)

52
Q

Importance of Dimes?

A

Must be seen that same rules apply to all levels of judgement

53
Q

Where is the test for apparent bias laid out?

A

Porter v Magill (2001)

54
Q

What was Lord Hope’s test in Porter v Magill?

A
  • fair minded and informed observer
  • considered the facts
  • conclude there was bias

(legal fiction, doesn’t need proven)

55
Q

Facts of Helow v SoS for the Home Department 2008

A

Judge found to be part of a pro Jewish group, case about Palestinian individual

  • said test didn’t result in bias here
  • far from Pinochet as group wasn’t a party to the case
56
Q

Administrative decisions should also be subject to disqualification on grounds of bias

A

R v SoS for the Environment ex part Kirkstall Valley Campaign 1996

57
Q

Is the test for judicial and administrative bodies the same?

A

No

58
Q

Where is the test for admin bodies to be found?

A

R (Lewis) v Redcar and Cleveland BC (2008)

59
Q

What are the facts of R(Lewis) v Redcar and Cleveland BC (2008)?

A
  • Leisure centre closed, decision pushed through. Bias?
60
Q

Test laid out in R(Lewis) v Redcar and Cleveland BC (2008)?

A
  • appearance of predetermination
  • so mind closed

so look at decision and see if it suggests closed mind (simply having a policy before not enough)

61
Q

Availability of judicial review means appearance of bias doesn’t always matter

A

R (Alconbury) v SoS

62
Q

Necessity: Admin structure means sometimes apparent bias is inevitable

A

R (Lewis) v Recar and Cleveland BC 2008

63
Q

Bias doesn’t apply: Waiver

A

If someone knows about potential bias and doesn’t mention it

64
Q

Doesn’t apply: Policy and political bias:

A

Can show political bias (leaning to left or right) but not personal bias

65
Q

Bias as part of procedural impropriety

A

Part of common law ground of review under procedural impropriety

66
Q

What part of the ECHR is engaged in procedural improrietory?

A

Art 6 (1)

67
Q

What does Art 6 (1) say?

A

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law

68
Q

2 key elements of Art 6(1) in order to be engaged?

A
  • civil right or obligation?

- fair and public hearing?

69
Q

Fair and public hearing?

A

In reasonable time

Independant and impartial

70
Q

if Art 6(1) not engaged ?

A

Turn to common law, fairness and bias

71
Q

Qu for Art 6(1) and policy decisions?

A
  • does decision involve civil right and obs?
  • what does Art 6 need for impartial and independent tribunal?
  • how do common law requirements differ?
72
Q

What did Lord Bingham in Runa Begum have to say about the relation between the two qu?

A

narrow civil rights meaning = full hearing

more flexible interpretation to civil rights = flexible with meaning of full tribunal

73
Q

Alconbury facts

A
  • SoS had powers to determine planning
  • 3 cases for HL
  • Said DoD was contrary to Art 6 (1) and requirement for fair and impartial hearing
74
Q

Issues for House of Lords in Alconbury?

A
  • did it involve civil right? Yes
  • Was it independent and impartial? No but
  • compatible with ECHR as the were subject to review by impartial body (court)
  • admin policy decision so no merit review
75
Q

Begum facts

A

offerred accommodation to R, R said unsafe.
Decision review by official said it was suitable
As there were dispute facts should have been a independent review

76
Q

Issues for HL in Begum?

A
  • did art 6(1) apply : assumed rights were engaged
  • what was scope of Art 6(1) applying to admin deacons?
    First deacons maker need not be independent so long as measure in place to safeguard fairness or ultimatr judicial review
77
Q

Ali v Birmingham CC facts

A

refused accommodation after being offered

said scheme inconsitsten with Art 6(1)

78
Q

iSSUES FOR SUPREMEM COURT

A

where civil right engaged

79
Q

How do we tell if civil right engaged?

A

Lord Hope” distinction between individual right and a benefit to be conferred by a scheme. Discretion makes it the later not former here.

80
Q

Ali v UK (in ECtHR)

A

said was a civil right
so open qu
lords likely to resit this
Says Begum right

81
Q

Impartial and Bias

A

same requirement at ECHR and common law

82
Q

Independence at ECHR and Common law

A

common law allows lack of structural independence, ECHR needs a sufficient of review

83
Q

Art 6 and policy decisions

A

can invoke civil rights but not always

Law and Government : Year 2 Term 1 (8 decks)

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