Grounds for JR - Procedural Impropriety/Fairness

Question 1

What are the two rationales for the ground for review of procedural fairness?

Answer 1

1. Instrumental - promotes just/accurate decisions; promotes public confidence in administration.
2. Intrinsic: respects individuals’ dignity and value rather than treat them as objects of arbitrary governmental process.

Question 2

What is the first ground for judicial review within the procedural fairness/procedural impropriety category?

Answer 2

Bias

Question 3

Where does the justification for the rule against bias stem from?

Answer 3

Nemo judex in sua causa - No one may be a judge in his/her own cause.

Question 4

Which case further reinforced the view that bias should ground actions for judicial review?

Answer 4

R v Sussex Justices - Lord Heart said - “Justice should not only be done but be seen to be done”

Question 5

What are the two basic categories of bias?

Answer 5

1. Direct Interests

2. Indirect Interest

Question 6

What is the automatic disqualification rule?

Answer 6

If the decision-maker has a direct interest in the outcome of the case they will be automatically disqualified.

Question 7

What constitutes a direct interest?

Answer 7

1. Where the decision-maker has some financial interest in the outcome (common)
2. Where the decision-maker has a direct interest as an (effective) party to the case (rare)

Question 8

In cases of direct interest through a financial involvement what level of actual bias/risk of bias needs to be demonstrated for disqualification?

Answer 8

The basic principle is that the challenger merely needs to demonstrate the existence of the interest. There is no need to show any actual bias or likelihood of it - see the case of Dimes v Grand Junction Canal Co. Proprietors.

Question 9

How did Lord Goff support the outcome of the Dimes Case?

Answer 9

In R v Gough he said - “In such a case therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision…not stand”

Question 10

How else may a financial interest lead to the automatic disqualification of a judge?

Answer 10

Financial interest will also be considered ‘direct’ and therefore an automatic disqualification if individual gaining the financial benefit is a close relative of the decision-maker - see the case of Locabail (UK) Ltd v Bayfield Properties Ltd.

Question 11

What is the test to establish what constitutes ‘a close relative of the decision-maker’?

Answer 11

“the link had to be so close and direct as to render the interest of that other person for all practical purposes indistinguishable from an interest of the judge.” - Locabail Case.

Question 12

Are there any de minimise exceptions to the financial interest rule?

Answer 12

Yes, in Locabail, it was found that the automatic disqualification rule of Dimes didn’t apply because the financial interest of the judge in the outcome was too tenuous on the evidence - the judge was a senior partner in Herbert Smith, which was acting for a company in different but related proceedings claiming security against the applicant’s husband.

Question 13

Which case affirmed the courts approach to de minimise exceptions for financial interests?

Answer 13

R v Bristol Betting and Gaming Licensing Committee, ex parte O’Callaghan

Question 14

Which case saw it held that a direct interest as an (effective) party to a case could also see a decision-maker found to have a direct interest?

Answer 14

R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet Ugarte (No 2)

Question 15

What were the details of the Bow Street Case?

Answer 15

Lord Hoffmann – who was in the majority in Pinochet 1 – was a director of a subsidiary of Amnesty International. The House of Lords held in Pinochet (No 2) that Lord Hoffmann was disqualified and that the original decision should be set aside.

Question 16

What did Lord Browne-Wilkinson say in the Bow Street Case?

Answer 16

He said - that the basis of the automatic disqualification rule is that no one shall be a judge in his own cause, i.e. no one should judge proceedings in which he/she is a ‘party’. A ‘party’ would be someone who has an interest – financial, proprietary, or otherwise – in the outcome of the case. Lord Hoffmann was such a party.

Question 17

What was the significance of the Bow Street Case?

Answer 17

It oversaw an extension of the automatic disqualification rule. Note that Lord Browne-Wilkinson suggested that it was only in rare circumstances such as those in Pinochet that this extension would be applicable.

Question 18

How did Lord Browne-Wilkinson restrict the extension of the automatic disqualification rule arising from the Bow Street Case?

Answer 18

He said - “Only in cases where a judge is taking an active role as trustee or Director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties”

Question 19

Which case illustrated the restriction put in place by Lord Browne-Wilkinson?

Answer 19

Helow v Secretary of State for the Home Department - Pinochet principle did not apply to a judge who was a member of an organisation which had expressed views relevant to the case and where the judge had not actively associated herself with the views in question.

Question 20

In potential cases of indirect bias what was the classic test for the apprehension of bias?

Answer 20

The classic test was stated in R v Gough - “The court should ask itself whether… there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly disregarded) with favour, or disfavour, the case of a party to the issue under consideration by him.”

Question 21

What led to a reassessment of the test laid out in R v Gough?

Answer 21

The test had to be reassessed after the HRA 1998 in line with Strasbourg Jurisprudence - the courts, as public bodies under s. 6(3)(a), are obliged to act compatibly with the convention rights.

Question 22

What is the new/current test for the apprehension of indirect bias?

Answer 22

Stated in Porter v Magill - the test is now - “whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision-maker] was biased”.

Question 23

What is the key terminological difference between the new and old tests for the apprehension of bias?

Answer 23

Real Possibility (new) v Real Danger (old). This represents the difference between actual and apparent bias.

Question 24

What does the phrase ‘real danger’ mean?

Answer 24

Whether there was a real danger the decision-maker “was predisposed or prejudiced against one party’s case for reasons unconnected with the merits of the case” - R v Inner West London Coroner, ex parte Dalliaglo.

Question 25

What does the phrase ‘real possibility’ mean?

Answer 25

This means more than a minimal risk but less than a probability. The Judge must have known of the matter giving rise to the danger of bias at the time of the hearing.

Question 26

Which cases provide some flesh to the bones of the ‘fair-minded observer’ identified in the new test for indirect bias?

Answer 26

Taylor v Lawrence

Lawal v Northern Spirt Ltd

Question 27

What was the significance of Taylor v Lawrence?

Answer 27

In this case Lord Woolf CJ said - ‘[t]he informed observer can be expected to be aware of the legal traditions and culture of this jurisdiction…Our experience over centuries is that…integrity is enhanced, not damaged, by the close relations that exist between the judiciary and the legal profession…[t]he informed observer will therefore be aware that in the ordinary way contacts between the judiciary and the profession should not be regarded as giving rise to a possibility of bias. On the contrary, they promote an atmosphere which is totally inimical to the existence of bias.’

Question 28

What was the significance of Lawal v Northern Spirit Ltd ?

Answer 28

Here it was said - the ‘fair-minded and informed observer’ is ‘neither complacent nor unduly sensitive or suspicious’.

Question 29

What question arises from the characteristics imposed upon the fair-minded observer?

Answer 29

The courts show a willingness to impute a lot of knowledge, including specialist knowledge, to the hypothetical observer. So…is the observer really the court?

Question 30

What different types of situations/cases may involve indirect bias?

Answer 30

1. Where the decision maker has a relationship with the person affected by the decision - Metropolitan Properties v Lannon
2. Where an overlap of roles causes an ‘institutional bias’;
   (a) decision-maker made original decision against which an appeal is being made - Hannam v Bradford Corporation
   (b) counsel has sat as judge with member of panel hearing case - Lawal v Northern Spirit Ltd
3. Decision maker appears already to have approved the decision - R v Secretary of State for the Home Department, ex parte Carroll
4. Decision maker has expressed very strong views on general subject matter of case which might be though to affect his ability to approach case with open mind - Timmins v Gormley
5. Decision taken by non-judicial bodies - councillors and politicians deciding cases involving their political views - R(on the application of Lewis) v Redcar and Cleveland Borough Council
   MORE DETAILS ON EACH NEEDED

Question 31

How do cases involving political interests provide for a different test for the apprehension of bias?

Answer 31

The non-personal predisposition based on an individuals political interests/policy considerations will be subject to the predetermination rule rather than the rule outlined in Magill.

Question 32

What is the pre-determination rule?

Answer 32

Established in the case of R (Island Farm Development Ltd) v Bridgend County Borough Council - legitimate predisposition (an open mind) ≠ illegitimate predetermination (a closed mind). This is determined from the perspective of the fair-minded and informed observer in Porter v Magill.

Question 33

What are the defences to bias?

Answer 33

1. Statutory provisions mandating the decision-maker

2. Waiver

Question 34

What is the second ground for judicial review within the procedural fairness/impropriety category?

Answer 34

Duty to Act Fairly

Question 35

How does bias differ from a duty to act fairly?

Answer 35

Bias concerns itself with the impartiality of the decision-maker, a duty to act fairly relates to the fairness of the decision-making process. Both are required to ensure procedural fairness.

Question 36

How is the duty to act fairly identified?

Answer 36

There are two key approaches;

1. Functional - Look at the nature of the decision being made and the decision-maker.
2. Impact - Look at the impact of the decision upon the individual in question.

Question 37

How did the functional approach identify a duty to act fairly?

Answer 37

This approach looked to the type of decision being made/the decision-make - a distinction was made between administrative and judicial decisions with the latter requiring more procedural safeguards.

Question 38

What was one issue with the functional approach?

Answer 38

There was difficulty distinguishing between administrative and judicial decisions.

Question 39

How was the functional approach based on the distinction between judicial and administrative proceedings discredited?

Answer 39

The case of Ridge v Baldwin marked a shift towards an impact based approach - this is now the modern position.

Question 40

What were the details of Ridge v Baldwin?

Answer 40

The Chief Constable of Brighton had been dismissed by the local police authority without a hearing. The authority had statutory power to deprive him of his position for incapacity or misconduct.
The House of Lords found he was entitled to a hearing.

Question 41

What was the reasoning of the House of Lords in the Baldwin Case?

Answer 41

1. He had been deprived of his job and source of livelihood (impact of decision and duty of respect)
2. The power to dismiss was limited by statute, so the authority did not have complete discretion – some checks were appropriate as to whether the dismissal had occurred on statutory grounds (nature of power and instrumental perspective).

Question 42

What was the overall impact of the Baldwin Case?

Answer 42

The focus was now on the impact on the individual, in accordance with the modern impact approach - look not to some classification of the type of decision being made, or the status of the person making it but rather whether fairness demanded consultation. In determining this issue, the primary matter to look at was the impact of the decision on the person affected and in particular on his or her rights or interests.

Question 43

According to the modern impact approach what is the difference between a decision impacting upon a persons legal rights or fundamental freedoms and a decision impacting on a persons interests?

Answer 43

If a decision impacts on a person’s legal rights or fundamental freedoms: consultation or a hearing is almost always necessary.
If a decision impacts on a person’s interests: a balancing act will be required, though still depend on magnitude of impact; in such cases, the type of hearing will still be relevant; as will benefit of fairness to individual and cost to public body concerned.

Question 44

Which case demonstrated the balancing act required in cases where a decision impacts a persons interest?

Answer 44

R v Barnsley Borough Council ex parte Hook - here the severity of the impact of the decision on the livelihood of the defendant was considered.

Question 45

What further implication did the case of R v Barnsley Borough Council ex parte Hook have in regards to the functional approach?

Answer 45

This case rendered the distinction between an administrative and judicial decision obsolete - Lord Denning said - “I do not mind whether the market holder is exercising a judicial or an administrative function. A stallholder counts on his right [to have a stall] to….earn his living.”

Question 46

What is the difference between decisions that withdraw a benefit and those that confer it initially?

Answer 46

The standard required to satisfy a ‘fair procedure’ is lower in ‘application cases’ in comparison to revocation ones.

Question 47

In which case was the difference between application and revocation cases highlighted?

Answer 47

McInnes v Onslow Fane - here it was said that in “application cases”, all that the applicant could reasonably demand was that the decision maker should reach an “honest conclusion without bias and not in pursuance of any capricious policy”

Question 48

Are there circumstances in which further fairness procedures must be adhered to in application cases?

Answer 48

Yes - R v Huntington District Council ex parte Cowan demonstrated that if a decision is made as a result of evidence from a third party (fairness of procedure requirements say) the application ought to be told of the substance of the objections and have a chance to reply to them.

Question 49

What are the four procedural safeguards in place to protect/ensure fairness of process?

Answer 49

1. Right to legal representation
2. Right to call witnesses and cross-examine
3. Right to a hearing
4. Notice of the charge

Question 50

What factors may vary the requirements/safeguards for fair procedures?

Answer 50

According to Russell v Duke of Norfolk, the following may;
1. The circumstances of the case
2. The nature of the inquiry
3. The rules applicable to the administrative decision-maker
4. The subject matter of the administrative decision/act
Note that all of the above are very fluid concepts

Question 51

What does procedural fairness require?

Answer 51

Fairness requires that there is a high correlation between the the importance of the rights at stake in a decision and the extent of the procedural safeguards - the more important the rights at stake the greater the extent of procedural safeguards.

Question 52

What is notice?

Answer 52

Notice is about providing the individual with the case against them when they face a governmental decision that will cause them detriment.

Question 53

What are the two rationales for the requirement/safeguard of notice?

Answer 53

1. If a person has no notice of the case against them then they cannot make any effective representations to advance their interests. It is a pre-requisite to the exercise of other procedural rights.
2. Equality of arms

Question 54

What did Lord Hope say on the importance of notice?

Answer 54

Lord Hope in Secretary of State for the Home Department v AF said ‘Denunciation on grounds that are not disclosed is the stuff of nightmares’

Question 55

Which case illustrates a failure to provide notice?

Answer 55

R v Governing Body of Dunraven School and Another ex parte B - a boy expelled from school was not informed of the evidence against him, he should have been informed so as to make it possible for his parents to argue against the decision.

Question 56

What did Lord Mustill say about the importance of notice?

Answer 56

Lord Mustill in R v Secretary of State for the Home Department ex p Doody and Others said ‘Since the person affected [by a decision] usually cannot make worthwhile representations without knowing what factors may weight against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.’

Question 57

How likely is it that notice will be required for compliance with fair procedures?

Answer 57

Notice is the most basic requirement of fair procedures therefore it is likely to be required unless there are particular pressing reasons of public policy/ safety.

Question 58

Which case illustrated situation in which notice was excluded for pressing reasons of public policy/safety?

Answer 58

Roberts v Parole Board

Question 59

What were the details of Roberts v Parole Board?

Answer 59

In a parole hearing, the Board determined that allowing certain evidence against the prisoner to be disclosed to him might well reveal the source of the evidence, who might then be endangered. So that information was revealed not to the prisoner but only to a ‘special advocate’, who could challenge it, but not discuss the evidence with the prisoner.

Question 60

What potential conflict was there between the courts decision in Roberts and Article 5(4) of the ECHR?

Answer 60

Article 5(4) of the ECHR says - Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The decision by the courts not to provide the defendant himself with details of the evidence against him arguably undermines this.

Question 61

How has the potential conflict between the decision in Roberts and the ECHR Article 5(4) and 6 been resolved?

Answer 61

It is now clear that under Art 5(4) and 6, at least the gist of the case against a suspect facing detention or a control order must be given to him, not just the special advocates.

Question 62

What was the significance of W (Algeria) v Secretary of State for the Home Department?

Answer 62

In this case the Court of Appeal affirmed that right to knowledge of case against was a fundamental right at common law and could only be displaced by clear statutory language.

Question 63

Beyond public policy considerations, are there any other grounds upon which notice may be excluded?

Answer 63

Right to notice may also be excluded where claimant is a ‘mere applicant’.

Question 64

What is the reasoning for exclusion of notice where the claimant is a ‘mere applicant’?

Answer 64

1. Usually, no wrong doing is alleged against the “applicant”.
2. The courts may treat the applicant’s request as duty to give reasons for final decision - e.g. McInnes v Oslow Fane
3. Applicant may be entitled to be told substance of any allegations made against them by others - e.g. R v Huntingon District Council ex p Cowan

Question 65

What is the general position of the courts in regards to oral hearings or written representations?

Answer 65

Generally, the courts seem to adopt the position that bare or mere applicants may be refused both unless their reputation is in danger, but, if ‘vital interests’ are at stake there is a much higher chance of an oral hearing or written representation being granted in accordance with procedural fairness.

Question 66

Which case saw the court demonstrate the importance of the ability to respond to decisions that may impact upon a persons reputation?

Answer 66

R v Secretary of State for the Home Department ex parte Al Fayed - here an application for citizenship by naturalisation was rejected on the grounds of failure to satisfy the ‘previous good character’ criteria. The court held that the claimant should have been given a chance to respond as the decision impacted upon their ‘good name’.

Question 67

How does the nature of the rights or interests affected by a decision affect the right to a hearing or written representations?

Answer 67

Again the relationship is proportionate, the more important the rights or interests affected the more likely the party is to be entitled to a hearing or written representation, even at the initial application stage.

Question 68

Which case demonstrated the proportional relationship between the importance of the rights and entitlement to a hearing/written representation?

Answer 68

R v Secretary of State for the Home Dept ex p Harry - H was a mental patient detained in conditions of mental security which would mean minimal liberty. Following a review of his case, it was recommended to the Home Secretary by an advisory board that following a recommendation by a mental health review tribunal that he be transferred to a lower security hospital, with considerably more freedom. This was refused, so he was to stay at a maximum security classification.

Question 69

Which other case saw the courts find that a failure to provide a hearing caused a breach of procedural fairness?

Answer 69

R (Smith) v Parole Board - here the Parole Board was called upon to decide whether the appellants would present an unacceptable risk of reoffending if released again (were released before but breached the terms of their licences). The Board decided that they would, and declined to order release. Neither of the appellants was provided with an oral hearing.

Question 70

What did the House of Lords find when considering R (Smith) v Parole Board?

Answer 70

The House of Lords found a breach of procedural fairness had occurred;

1. The prisoner ‘should have the benefit of a procedure which fairly reflects, on the facts of the particular case, the importance of what is at stake for him, as for society’. Thus the significance of what was at issue – liberty – was central to the court’s assessment.
2. They also found it relevant that there were factual issues in dispute, raising issues of credibility, which could also be resolved better through an oral hearing.

Question 71

In which case did the courts suggest the conducting of an oral hearing was unnecessary?

Answer 71

Lloyds v McMahon - here an oral hearing was found to be unnecessary in the circumstances as while the consequences of the decision were serious they were to be balanced against competing considerations.

Question 72

What competing considerations may be balanced against the impact of a decision, as was the case in McMahon?

Answer 72

1. What was/is the purpose of the hearing?

2. What are the practical consideration of affording a hearing?

Question 73

What impact can an explicit request for an oral hearing have on procedural fairness?

Answer 73

In the case of Lloyds v McMahon it was said that “If any had asked to be heard orally and the auditor had refused, there would have been clear grounds for a complaint of unfairness.”

Question 74

What is the importance of cross-examination in protecting procedural fairness?

Answer 74

The whole point of an oral hearing is to resolve disputed issues of fact that cannot be resolved by written submissions alone.
Calling and cross examining witnesses is integral to this as the credibility of witnesses needs to be stress-tested.

Question 75

Which case demonstrated the courts position on the importance of cross-examination in ensuring procedural fairness?

Answer 75

R v Board of Visitors of Hull Prison, ex parte St Germain

Question 76

What were the details of R v Board of Visitors of Hull Prison, ex parte St Germain ?

Answer 76

The claimants, prisoners in Hull Prison, faced disciplinary offence charges arising from a prison riot.
A finding against them entailed a loss of remission, effectively increasing the length of their time in prison – so liberty was at issue.
The claimants sought judicial review arguing that the procedure had been unfair, given that the Board did not allow them to call witnesses in alibi or to challenge the hearsay evidence of witnesses through cross-examination.
The Court considered that both the nature of the matter (alibis could disprove their involvement in the riot) and its seriousness (liberty was at stake) required the availability of cross-examination under the overriding obligation to provide a fair hearing’.

Question 77

Which more modern case reinforces the finding of the courts in the Hull Prison Case?

Answer 77

R (Bonhoeffer) v General Medical Council

Question 78

What were the details in R (Bonhoeffer) v General Medical Council?

Answer 78

Consultant paediatrician faced proceedings against fitness to practice on the basis of allegations of sexual assault of children in Kenya. Although most evidence came from Witness A, she was not called into court – so no cross-examination was possible.

Question 79

What was the courts finding in the case of R (Bonhoeffer) v General Medical Council?

Answer 79

The Court found a breach of procedural fairness. It stated: ‘It is hard to imagine circumstances in which the ability to cross-examine the uncorroborated allegations of a single witness would assume a greater importance to a professional man faced with such serious allegations.’

Question 80

What is the general position of the courts in regards to the importance of legal representation in ensuring procedural fairness?

Answer 80

Generally, the courts say as it is the most expensive safeguard and therefore most cumbersome - it is also the hardest to argue for.

Question 81

What variables affecting the likelihood of legal representation being granted under procedural fairness are there?

Answer 81

In R v Secretary of State for the Home Department, ex parte Tarrant the key variables were set out;

1. Seriousness of charge
2. Whether points of law were likely to arise
3. Capacity of prisoner to present case
4. Procedural difficulties
5. Speed
6. Fairness between parties

Question 82

What is the difference between a duty to give notice and a duty to give reasons?

Answer 82

Notice - a summary/ information about the case against you.

Reasons - justifying the case against you. This is an independent head of review.

Question 83

Why should there be a duty to give reasons for an administrative decision?

Answer 83

1. It ensures that decision-makers’ minds are focused on the task at hand and ensures that they make better decisions - R (Telford Trustee No.1 Ltd) v Telford and Wrekin Council
2. Reasons enable the person affected to judge whether the decision has been properly taken (reasons may reveal, for instance, an irrelevant consideration was taken into account in making the decision); or they may assist the judicial review court in assessing whether the decision is properly taken.
3. The giving of reasons for a decision may show respect for the individuals concerned recognising them as rational beings capable of understanding why the decision has been taken. Reasons show that the decision has been taken carefully and after proper consideration, showing respect for the person affected.
   The first two are ‘instrumental reasons’, the last one is not.

Question 84

Why should there not be a duty to give reasons?

Answer 84

1. Free and uninhibited discussion would be impeded by considerations of what would be made public subsequently.
2. It could amount to an excessive burden on government machinery (delays, costs etc).
3. Decisions would be unduly ‘judicialised’.
4. Decision-makers would be less candid (and conceal the true reasons).
   This may also lead to the blurring of the distinction between review and appeal again.

Question 85

Is there a general duty at common law to give reasons?

Answer 85

No there is not, however, note - “There is certainly a strong argument for the view that what were once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions.” - Privy Council in Stefan v GMC

Question 86

When will reasons be required?

Answer 86

1. Where required by Statute
2. Where a decision impacts upon “highly regarded” rights or interests of the applicant
3. Where the case against the applicant will require him to point to some particular feature of the given decision in his response
   These are all fluid concepts again

Question 87

Which three cases illustrate situation in which reasons are required because of the potential impact on highly regarded interests or rights?

Answer 87

R v Civil Service Appeal Board, ex parte Cunningham
R v Ministry of Defence, ex parte Murray
R v Secretary of State for the Home Department ex parte Doody

Question 88

What were the details of R v Civil Service Appeal Board, ex parte Cunningham?

Answer 88

Public body provided a very low award for the unfair dismissal of a prison officer. The court considered that ‘the duty to act fairly in this case extends to an obligation to give reasons’. The need for an explanation of the low award and the lack of significant factors militating against reasons were key here.

Question 89

What were the details of R v Ministry of Defence, ex parte Murray?

Answer 89

The reviewing court found that a Court Martial was required to provide reasons after imposing a severe sentence on an officer and rejecting his argument that his behaviour had been partly caused by anti-malarial medication. Key to this finding was the fact that the sentence would end the officer’s military career and thus it was important for him to assess whether any reviewable errors had occurred in the Court Martial’s reasoning.

Question 90

What were the details of R v Secretary of State for the Home Department ex parte Doody?

Answer 90

The four applicants had each received mandatory life sentences for murder. Home Secretary, after consulting with the Lord Chief Justice and the trial judge had set the “penal element” in the sentence, the part they had to serve to satisfy the demands of retribution and deterrence. In this case, the Home Secretary determined the penal period without consulting the prisoners; he then informed them of his decision, but did not give them any reason for it, or tell them whether he had fixed a period which differed from that recommended by the judges. The applicants sought, inter alia, declarations that the Home Secretary was required to inform them;

(1) what period had been recommended by the judges and their reasons;
(2) if he had differed from the judges, of his reasons for so doing

Question 91

What did the courts hold in the case of R v Secretary of State for the Home Department ex parte Doody?

Answer 91

The courts held;

(a) Without reasons, the prisoners could not, as they were entitled to, make meaningful representations to the H.S. about the fixing of the penal element.
(b) Fairness required reasons to be given because the liberty of the applicants was at stake and their position was anomalous compared to other prisoners.
(c) Without reasons, “the prisoner has virtually no means of ascertaining whether this is an instance where the decision‑making process has gone astray”

Question 92

Which five scenarios give rise to a duty to give reasons on the grounds that the individual must show a particular feature of the decision?

Answer 92

1. Where the decision making process is judicial in character - Stefan v GMC
2. Where the effect of a decision on the individual is particularly serious - Stefan v GMC
3. Where the decision reached seems prima facie unreasonable, unlawful or inexplicable - Sinclair, The Times & R v Criminal Injuries Compensation Board ex p Cunningham
4. Where there is a conflict of (factual) evidence, and it is unclear what view of the evidence the decider took - R v Criminal Injuries Compensation Board ex p Cummins
5. Where there is a statutory right of appeal from the body in question - Stefan v General Medical Council

Question 93

What were the details of Stefan v GMC?

Answer 93

Applicant doctor had been suspended indefinitely from practicing by the GMC, a statutory body. Their reasons merely recited the grounds given in the statute for suspension: that they had judged her “fitness to practice to be seriously impaired” because of her physical condition. The Board was governed by detailed statutory regulations, none of which mentioned any obligation to give reasons for its decisions. It was held by the courts that the Board had to outline reasons for its decisions.

Question 94

On which two grounds may it be said that a decision reached seems prima facie unreasonable, unlawful or inexplicable?

Answer 94

(a) all the available evidence seems to point the other way - Sinclair The Times 5 Feb 1992; or
(b) the decision is substantially different from that which the applicant reasonably expected - R v Criminal Injuries Compensation Board ex p Cunningham

Question 95

In what situation will reasons not need to be given?

Answer 95

1. If reasons cannot be expressed - R v Higher Education Funding Council
2. If there are statutory duties to put information re a decision in the public domain, may be deemed to exclude any additional common law duty - R. (on the application of Hasan) v Secretary of State for Trade and Industry

Question 96

Will failure to give reasons alone be sufficient to lead a court to quash a decision?

Answer 96

This is unclear - yet to be unequivocally established.

Question 97

What are the overall summarising remarks about procedural fairness as a ground for judicial review?

Answer 97

1. Courts have developed the concept of procedural fairness over recent decades.
2. There has been significant expansion of the range of circumstances in which norms of procedural fairness are applicable.
3. As the scope of applicability has broadened, the obligations on decision-makers have become increasingly set out in more flexible terms, which can be highly context-sensitive.
4. Procedural fairness therefore can mean very different things in different circumstances.
5. Does this flexibility bring about excessive uncertainty, confusion and costs or is it to be welcomed?
6. At the root of procedural fairness lie instrumental reasons but also an inherent duty of respect for the individuals facing the detrimental implications of administrative action.
7. Are courts striking an appropriate balance in the evolving case law on procedural fairness?