JR Problem Question - Grounds for Review - Procedural Impropriety

Question 1

What is the fifth issue to be addressed in a JR PQ?

Answer 1

Grounds for Review - Are there grounds for Judicial Review?

Question 2

What are you required to establish in the fifth key issue of a JR PQ?

Answer 2

At this stage, you are simply looking to determine whether the decision being challenged amounts to either;

(i) illegality,
(ii) procedural impropriety, and/or
(iii) irrationality/unreasonableness.

Question 3

What is the key question for the procedural impropriety ground of review?

Answer 3

Has there been Procedural Impropriety?

Question 4

What will the courts have to satisfy themselves on in order to find there to have been procedural impropriety?

Answer 4

For procedural impropriety to be found the court will have to satisfy itself that the decision-maker has acted unfairly.

Question 5

What are the two ways in which procedural impropriety may arise?

Answer 5

Specifically, this will arise in circumstances where the decision-maker was either (1) biased (directly or indirectly) or (2) where a necessary standard of procedural fairness has not been provided.

Question 6

What is bias?

Answer 6

The most obvious form of procedural impropriety (e.g. unfairness) is where the decision-maker is biased (e.g. predisposed) towards a certain outcome. This can take two forms.

Question 7

What are the two forms of bias?

Answer 7

1. Direct Bias

2. Indirect Bias

Question 8

What is direct bias?

Answer 8

This covers instances where;
(i) the decision-maker has a vested financial interest in the case
Authority - Dimes v Proprietors of the Grand Junction Canal
(ii) a ‘close relative’ of the decision-maker is set to gain a financial benefit - the test for this is that the relative must be so close as to make their interests ‘indistinguishable’ from those of the decision-maker
Authority - Locabail (UK) Ltd v Bayfield Properties Ltd
(iii) due to close involvement with an institution/organisation involved with proceedings, the decision-maker is effectively a party to case
Authority - R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet Ugarte (No 2)

Question 9

What is the consequence of a finding of direct bias and what is this based upon?

Answer 9

In the event that direct bias is found to be present, the decision will be automatically invalidated. As a foundational principle in natural justice is that no-one may be a judge in their own cause (nemo judex in sua causa).

Question 10

What evidential requirement is there for establishing direct bias?

Answer 10

There is no need to prove that the decision-maker was actually biased, the identification of a direct interest in proceedings is enough to disqualify their decision
Authority - Lord Hewatt CJ in R v Sussex Justices - ‘justice should not only be done but be seen to be done’

Question 11

What is indirect bias?

Answer 11

Also known as the ‘apprehension of bias’, this covers all other instances of potential bias (e.g. those where no direct interest/benefit exists).

Question 12

What are the two standard tests for the existence of indirect bias?

Answer 12

1. The first (and now redundant) test was established in R v Gough - for indirect bias to be found it needed to be shown that there was a ‘real danger’ that the decision-maker was biased (e.g. a high threshold).
2. The second, modified test (following the adoption of the Human Rights Act 1998) and established in Porter v Magill, requires demonstration of ‘a real possibility’ that the decision-maker was biased (‘more than a minimal risk but less than a probability’).

Question 13

What is the first form indirect bias may take?

Answer 13

1. Where the decision-maker has a relationship with a person affected by the decision
   Authority - Metropolitan Properties v Lannon

Question 14

What is the second form indirect bias may take?

Answer 14

2. Where there is institutional bias caused by an overlap of roles;
   (a) Where the decision-maker made the original decision against which an appeal is being made
   Authority - Hannam v Bradford Corporation
   (b) Where counsel has sat as judge with a member of the panel hearing case
   Authority - Lawal v Northern Spirit Ltd
   (c) Where the decision-maker appears to already have approved the decision
   Authority - R. v Secretary of State for the Home Department Ex p. Carroll

Question 15

What is the third form indirect bias may take?

Answer 15

3. Where the decision maker has expressed very strong views on general subject matter of case which might be thought to affect his ability to approach case with open mind
   Authority - Timmins v Gormley

Question 16

What is procedural fairness?

Answer 16

This is the requirement of a certain standard of fairness in the decision-making process, it may vary depending on the circumstances.

Question 17

What will impact upon the required level of procedural fairness?

Answer 17

The required standard will be raised or lowered in accordance with the impact the challenged decision has (or could have) on the affected individual.

Question 18

What is an important distinction to make when determining the required level of procedural fairness in making a decision?

Answer 18

An important distinction is therefore made between revocation cases (e.g. where a previously enjoyed benefit is withdrawn) and application cases (e.g. where a desired benefit is merely sought). Generally speaking, a higher standard of procedural fairness will be expected with the former than with the latter.

Question 19

What is the general required level of procedural fairness for application cases?

Answer 19

In application cases all that an applicant can reasonably demand (and expect) is that the decision-maker will reach an ‘honest conclusion without bias and not in pursuance of any capricious policy’.
Authority - McInnes v Onslow Fane

Question 20

Is the required level of procedural fairness in application cases subject to variation?

Answer 20

Yes, the standard of fairness required even within simple application cases can vary depending on the specific circumstances of their case, how their interests are impacted, as well as what they have actually requested.
Authority - Russell v Duke of Norfolk

Question 21

How does the required level of procedural fairness in revocation cases vary from those in application ones?

Answer 21

In contrast, in revocation cases where a previously enjoyed benefit has been withdrawn, due to the impact the decision being challenged has had (or could have) on the affected individual (e.g. jeopardising their livelihood, liberty), the standard of procedural fairness required will be much higher.
Authority - R v Barnsley Borough Council ex parte Hook

Question 22

What are the key procedural safeguards underpinning the concept of procedural fairness?

Answer 22

1. Notice
2. Hearing
3. Cross-Examination of Witness
4. Legal Representation
5. Duty to give reasons

Question 23

What is the procedural safeguard of notice?

Answer 23

An individual has a right to be given notice of the case against them when facing a decision that could cause them detriment - an individual is incapable of adequately representing/advancing their own interests if they do not know at least ‘the gist’ of the case against them.
Authority - Lord Mustill in Doody

Question 24

What did Lord Hope say on the procedural safeguard of notice?

Answer 24

He said in Secretary of State for the Home Department v AF (No 3) that ‘denunciation on grounds that are not disclosed is the stuff of nightmares’.

Question 25

How important is notice as a procedural safeguard for fairness?

Answer 25

Notice is the most basic requirement of procedural fairness and is therefore highly likely to be required unless there are particular pressing reasons of public policy/ safety for frustrating it (e.g. where giving notice will put fundamental interests of other individuals in jeopardy). Authority - Roberts v Parole Board

Question 26

What is the procedural safeguard of a hearing?

Answer 26

An individual with a case against them has the right to a (fair) hearing of some description.

Question 27

What are the two types of hearing?

Answer 27

(i) written and (ii) oral, with the latter only likely to be granted in the event that the former is deemed to be insufficient given the circumstances of the case.
Authority - R v Secretary of State for the Home Department ex parte Al Fayed

Question 28

When are the courts more or less likely to allow for an oral hearing?

Answer 28

If the court determines that an oral hearing will provide little benefit over simple written representations, then it is highly unlikely to find that one is necessary
Authority - Lloyds v McMahon

Question 29

What is the procedural safeguard of cross-examination of a witness?

Answer 29

This logically follows the right to an oral hearing and provides claimants the opportunity to challenge contested testimony/evidence which was relied upon by the decision-maker when reaching the original (challenged) decision.

Question 30

What will impact upon the presence of a right to cross-examination of a witness as a procedural safeguard?

Answer 30

The nature of the impact of the challenged decision will significantly influence the courts approach - decisions affecting liberty, reputation, and so on, are much more likely to give rise to the right of cross-examination.
Authority - R v Board of Visitors of Hull Prison, ex parte St Germain (No 2)

Question 31

What is the procedural safeguard of legal representation?

Answer 31

This right, where granted, sees the claimant provided with legal counsel by the state.

Question 32

Is legal representation a readily available right/procedural safeguard?

Answer 32

The right to legal representation is the hardest procedural safeguard to argue for. An important reason for this is of course the financial cost involved. As such, this is only likely to be granted in exceptional circumstances.
Authority - R v Secretary of State for the Home Department, ex parte Tarrant

Question 33

In what instances may legal representation be provided as a procedural safeguard?

Answer 33

Where the claimant lacks the capacity to make representations on their behalf, or where complex, and/or contested, legal issues are likely to arise, or where it is deemed necessary to ensure fairness between parties (e.g. ‘equality of arms’).

Question 34

What is the procedural safeguard of duty to give reasons?

Answer 34

The duty to give reasons represents the need to explain the rationale for the decision itself (e.g. the justification for why the decision was taken, rather than simply stating what decision was reached).

Question 35

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

Answer 35

Although there is no general duty in common law for decision-makers to provide reasons for their decisions, it is, as was noted in Stefan v GMC, arguably now becoming standard for their provision to be required.

Question 36

What are the certain, specific situation in which a duty to give reasons will arise?

Answer 36

1. When required by statute
2. Where a decision impacts on ‘highly regarded’ rights or interests
3. Where the claimant will need to point to some particular feature of the particular decision made

Question 37

How will a duty to give reasons be required by statute?

Answer 37

It is evident that there will be a duty to give reasons for decisions when this is clearly mandated by statutory provision. For example, see the Tribunals and Inquiries Act 1992, s. 10.

Question 38

How will a duty to give reasons be required in cases where a decision impacts on ‘highly regarded’ rights or interests?

Answer 38

Where a decision has (or could have) a detrimental impact on fundamental interests of the affected individual (e.g. liberty, reputation, livelihood) – as well on others in similar
positions - then a duty to give reasons is likely to be found.
Authority - R v Civil Service Appeal Board, ex parte Cunningham

Question 39

How will a duty to give reasons be required in cases where the claimant needs to point to see particular feature of the particular decision made?

Answer 39

This is an inherent requirement - in order for the claimant to challenge a decision on grounds of illegality or unreasonableness, they must first know how the decision-maker reached their original decision (e.g. in order to ascertain whether this decision was reached lawfully).

Question 40

What are procedural legitimate expectations?

Answer 40

In contrast to substantive legitimate expectations (where some particular outcome is expected), procedural legitimate expectations relate to reasonable expectations that certain procedures will be followed before a final decision is reached. They are thus not based upon the anticipated outcome, but rather the anticipated process by which that outcome is ultimately to be reached.

Question 41

What are the three specific circumstances in which procedural legitimate expectations will arise?

Answer 41

1. Express Promise of Consultation
2. Expectation of Consultation Arises from Past Practice
3. Expectation of Consultation Based on Previous Enjoyment of a Benefit

Question 42

How does an express promise of consultation give rise to procedural legitimate expectations?

Answer 42

Where the claimant has been given clear, unambiguous assurances that either a certain practice or policy which affects them will not be changed prior to their being consulted, a procedural legitimate expectation will arise Authority - R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operator’s Association

Question 43

How does an expectation of consultation arising from past practice create legitimate procedural expectations?

Answer 43

Where any changes (either actual or proposed) in policy/practice which could have (or have had) a detrimental impact on the interests of the claimant are, through previous conduct, understood to never take place prior to adequate consultation with those to be affected, legitimate procedural expectations arise.
Authority - CCSU v Minister for Civil Service

Question 44

How does an expectation of consultation arising from a previous enjoyment of a benefit create legitimate procedural expectations?

Answer 44

Where a claimant has a right to consultation prior to the withdrawal of a previously enjoyed benefit (depending on the nature of the benefit in question – e.g. how significantly it impacts upon their fundamental interests), a legitimate procedural expectation may arise.
Authority - Durham County Council ex parte Curtis