Fairness

Question 1

What three values are engaged by procedural impropriety? What case does this come from?

Answer 1

Comes from R (Osborn) v Parole Board (2013)

1. Result in better decisions by ensuring that the decision-maker receives all relevant information and that it is properly tested
2. The avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel…justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions
3. The rule of law - procedural requirements…promote congruence between the actions of decision-makers and the law which should govern their actions

Question 2

What two common law principles are the foundation of fairness as we know it today?

Answer 2

1. the rule against bias (nemo iudex in causa sua)

2. the right to a fair hearing (audi alteram partem)

Question 3

What case expanded fairness to apply to all decision makers not just judges and those like judges? Which case adopted this principle in Northern Ireland?

Answer 3

Ridge v Baldwin (1964)

R (Campbell College) v Department of Education (1982)

Question 4

What do many statutes have in relation to fairness?

Answer 4

specific procedural requirements

Question 5

What four sub topics fall under fairness?

Answer 5

1. bias
2. fair hearing
3. reasons
4. consultation

Question 6

What two cases explain why bias is important to be protected in the Courts? Explain

Answer 6

1. R v Sussex Justices, ex p McCarthy (1924) - ‘It is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’
2. Re O’Connor and Broderick (2005) - ‘The modern approach to apparent bias reflects the need for public confidence that must be inspired in courts and tribunals, and for present purposes that includes the police disciplinary system. Public confidence will not be inspired by any public perception of the real possibility of bias in the system…the indispensable requirement of public confidence in the administration of justice requires higher standards today that was the case even a decade or two ago’

Question 7

What are the three different classifications of bias? Explain each one briefly

Answer 7

1. Actual bias: a person is actually biased if ‘motivated by a desire to favour one side or disfavour the other’: R v Gough (1993) (Lord Goff). It is possible but very rare to prove actual bias because you would be asking a decision-maker to admit this. Actual bias is of very limited use in practice.
2. Presumed bias (automatic disqualification)
3. Apparent bias (non-automatic disqualification)

Question 8

What two types fall under presumed bias?

Answer 8

Direct and indirect pecuniary interest

Question 9

Describe and name two cases relevant to direct pecuniary interest

Answer 9

Where a decision maker has a pecuniary (financial) interest in a matter that they are deciding, they should not be involved in that decision and if they are then that decision will be quite readily challenged.

1. Dimes v Grand Junction Canal Co Proprietors (1852) - would the reasonable person think the financial interest would have an impact on the decision? There doesn’t need to be any proof
2. R v Rand (1866) - If the interest is remote then this will not count

Question 10

Describe the development in the test for apparent bias.

Answer 10

1. no doubt that the test was linked to danger - Locabail v Bayfield (2000)
2. criticised the danger test - stated there was a more appropriate test in Scotland, the Commonwealth and in some European countries - Re Medicaments (2001)
3. House of Lords accepted this test - ‘whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility [of bias]’ - Porter v Magill (2001)

Question 11

What Article in the ECHR can be linked to bias? How has this been interpreted in the UK?

Answer 11

Article 6 ECHR: 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.
In Ali v Birmingham City Council (2010) it was held that Article 6 would mainly be used in criminal law and only occasionally others. It would particularity include other measures mentioned in the convention.

Question 12

What case laid some general principles on how to classify fair hearing cases? Explain

Answer 12

McInnes v Onslow-Fane (1978)
They also look at impact – something you’ve never had or having something taken away:
(i) forfeiture cases where a decision takes away some right or position or where a member of an organisation is expelled or licence revoked (high procedural expectations);
(ii) application cases where the decision merely refuses to grant the application the right or position that he seeks such as membership of an organisation (low procedural expectations);
(iii) expectation cases which differ from application cases as the individual has some expectation of receiving the benefit or that the licence will be granted. (e.g. existing licence-holders seeking a renewal)

Question 13

What seven things are required for the fair hearings? Are all of these required?

Answer 13

1. Notice/knowledge of the opposing case
2. Timing to prepare the same case
3. Nature of hearing: oral/written
4. Right to cross examine
5. Legal Representation
6. Reasons
7. Consultation
   Not all of these are present in every case

Question 14

Name a case relevant to time to respond/prepare.

Answer 14

R (Shoesmith) v OFSTED (2011) - no option for the individual to read and comment on the report before her dismissal

Question 15

Name four cases relevant to the nature of a hearing

Answer 15

1 and 2. Lloyd v McMahon (1987) and R (Hennessy) v Dept of the Environment - plenty of opportunity through writing and no hearing asked for until went to Court

3. R v Army Board of the Defence Council, ex p Anderson (1992) - The Court found that because it had an impact on fundamental rights and there was limited ability for appeal, there was a need for an oral hearing on the grounds of fairness.
4. Osborn v Parole Board (2013) - Identified the reasons why you would need an oral hearing: disputes over fact, assess risk, need to test out view that had been formed.

Question 16

Name three cases relevant to cross-examination

Answer 16

1. R v Board of Visitors ofHullPrisonex p St Germain - cross examination might be needed to provide clarity over the facts and to stop unfair punishment
2. R v Commission for Racial Equality ex p Cotterell and Rothon (1980) - not needed because of the lack of penalties
3. Re Tiernan (2003) - cross examination due to disputes over factual evidence

Question 17

Name three cases relevant to legal representation

Answer 17

1. Pett v Greyhound Racing Association (no 1) (1969) - The Court said that not everybody would be as good at presenting their case therefore having a lawyer to speak for you would be very good in some cases.
2. R v Secretary of State for the Home Department, ex p Tarrant (1985) - developed the Tarrant test. The Court found that you need to look at how serious is the charge, complex legal argument, able to represent themselves, unfeasible in terms of speed etc.
3. Re Hone and McCartan (1988) - In this case, the Tarrant test was accepted by the House of Lords.

Question 18

Is the tarrant test always used?

Answer 18

No - sometimes the Tarrant test is replaced by human rights and statutes.

Question 19

What four cases are relevant for a duty to give reasons?

Answer 19

1. Doody v Secretary of State for Home Department (1994) - ‘The giving of reasons may be inconvenient, but I can see no ground at all why it should be against the public interest; indeed, rather the reverse. This being so, I would ask simply: is a refusal to give reasons fair? I would answer without hesitation that it is not’
2. R v University Funding Council, ex p Institute of Dental Surgery (1994): There is no general duty to give reasons, however there is a duty in the following cases - a. where the subject matter is so highly regarded by law; b. Where a decision appears aberrant then reasons would show whether it was legally aberrant or just appeared to be so. The above class does not include decisions which are themselves challengeable by reference only to the reasons for them.
3. Stefan v General Medical Council (1999) - accepted Sedley (1994) - They need not be elaborate reasons, but a brief recording of reasons would not be a burden.
4. Re Officer O (2008) - ‘Moreover, whilst there is no general duty to give reasons at common law it is important to remember that reasons can play an important role in cases such as this where they allow the applicant to determine whether the decision-maker has taken account of any arguments or representations which he wishes to make. I discern a gathering momentum in the common law for the imposition of the duty to give reasons in a wide range of circumstances in which fairness is taken to demand that reasons be given…This coincides with the trend towards an insistence on greater openness and transparency in the making of administrative decisions.’

Question 20

Give three examples of the momentum outside of the UK to introduce a duty to give reasons.

Answer 20

1. In Ireland – common law – there is a duty to give reasons except for exceptional situations (Mallak v Minister for Justice (2012)
2. In Canada – common law duty for procedural fairness required written reasons (Baker v Minister of Citizenship and Immigration (1997)
3. In India – the old common law (let the other side be heard) required reasons (Siemens Engineering v Union of India (1976)

Question 21

When does a requirement to consult arise? What case does this come from?

Answer 21

R (Plantagenet Alliance) v Secretary of State for Justice (2014):

1. Where there is a statutory duty to consult.
2. Where there has been a promise to consult.
3. Where there has been an established practice of consultation.
4. Where, in exceptional cases, a failure to consult would lead to conspicuous unfairness.

Question 22

Who should be consulted - refer to two cases?

Answer 22

1. Agricultural Training Board v Aylesbury Mushrooms (1972) - statutory requirement to consult certain people
2. Re GC (2017) - a number of bodies needed to be consulted for expertise

Question 23

What is adequate consultation - refer to cases.

Answer 23

R v Brent LBC ex p Gunning (1985) (‘Sedley criteria’)
1. The consultation must be at a time when proposals are still at a formative stage.
2. The proposer must give sufficient reasons for any proposal to permit intelligent consideration and response.
3. Adequate time must be given for consideration and response
4. The product of the consultation must be conscientiously taken into account in finalising statutory proposals.
Re Law Society of NI (2004) – this case explicitly confirmed the ‘Sedley criteria’ in Northern Ireland.

Question 24

How has the case law on the rule against bias taken account of the need of context-sensitivity?

Answer 24

It applies the ground differently for the executive and the legislature to the judiciary. The executive and legislature are not expected to put their political view aside, whereas the judiciary are - they should be politically neutral.

Question 25

Why are reasons required? Give three answers.

Answer 25

1. Improves the quality of the decision maker
2. Stops injustice
3. Gives the individuals the ability to decide whether to appeal

Question 26

Give a case summary of Dover District Council v CPRE Kent (2017).

Answer 26

Facts: China Gateway International (GCI) applied for planning permission to Dover District Council. This proposal received strong support and strong opposition. Some argued it offered a much needed boost to the local economy, whereas others saw it as a serious and unjustified breach of national policy. The planning officer’s report summarised these arguments and made recommendations. It stated that if these recommendations were made then the application should be granted. GCI’s consultants, BNP Paribas, disagreed with these recommendations and refused to continue. The application was then considered by the planning committee, who agreed with the planning officer’s recommendations. The application went back to the planning committee with some unrelated changes. They agreed to provide planning permission subject to the completion of the section 106 agreement. The Court of Appeal quashed the permission based on the lack of reasons.
Issue(s): When a local planning authority against the advice of its own professional advisers grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a duty to be found in statutory sources, European or domestic, or in the common law? And what are the legal consequences of a breach of the duty?
Decision: The UKSC dismissed the appeal and affirmed the Court of Appeal’s decision to quash the permission.
Reasoning: The Members did not consider the new criticisms that had been put forward by the officer’s report, in particular viability. The planning officer’s recommendations were rejected by the board because “… this could jeopardise the viability of the scheme, deter other developments and be less effective in delivering the economic benefits.” However, this was only the opinion of three of the members. ‘This submission rests on the uncertain assumption that the views of the three members quoted were shared by the majority. The required statement under the regulations is of the reasoning of the committee as a whole. There is no indication of how or why the members felt able, without further investigation, to reject the view of their own advisers that the viability of the scheme need not be threatened, and indeed could be enhanced. It was not enough to rely on the possibility of the scheme being jeopardised, simply on the say-so of the applicant’s advisers without any reference to the expert view to the contrary.’ ‘Another important issue was the officers’ insistence on the need for implementation as “a single comprehensive scheme” to secure the economic benefits, including in particular the hotel and conference centre, and for conditions or planning obligations to achieve that. Given that the members apparently shared their officers’ view of the importance of those benefits, their omission of any legal mechanism to secure it needed explanation.’ Reasons must be intelligible and understandable. It is not enough to give retro reasons because they are seen as artificial and you don’t know if it is the true reason.