Judicial Review - Procedural impropriety

Question 1

What are the two categories of procedural impropriety?

Answer 1

1. Procedural illegality
2. Breach of the rules of natural justice

Question 2

What are the two parts of the rules of natural justice?

Answer 2

1. Rule against bias
2. Right to a fair hearing

Question 3

Dimes v Grand Junction Canal Proprietors (1852)

Answer 3

Example of direct interest - judge had a financial interest in case

Court also found that it is not actual bias, but the appearance of bias that matters

Question 4

R (ex p Pinochet Ugarte) v Bow Street Magistrate (No 2) (2000)

Answer 4

Lord Hoffman was involved in deciding a case about Pinochet’s extradition to Spain, but was later shown to be involved with Amnesty International, which had campaigned for accountability for Pinochet

This was held to have created a direct interest in the case (a direct interest can exist even if it’s non-pecuniary)

Question 5

Porter v Magill (2001) (procedural aspect)

Answer 5

Example of indirect bias not existing: the auditor in a case had set out a preliminary finding that Porter was very likely guilty in the “homes for votes” scandal - while this was unwise, it didn’t create an indirect interest in then finding her guilty

The test for indirect bias is, “Would a fair-minded and impartial observer conclude that there had been a real possibility of bias?”

Question 6

What is the test for indirect bias?

Answer 6

“Whether a fair-minded and informed observer, having considered the facts, would conclude that there had been a real possibility of bias” (Porter v Magill (2001))

Question 7

R v Pintori (2007)

Answer 7

Indirect bias: A juror knew some of the police officers who gave evidence and had arrested the defendant. Held that a fair-minded observer would conclude there was a real risk of bias.

Question 8

R v Abdroikov and others (2005)

Answer 8

A police officer serving on a jury does not create a real risk of bias (a fair-minded observer would not conclude, just because a juror was involved in the administration of justice in some capacity, that a real risk of bias existed)

Question 9

McInnes v Onslow-Fane (1978)

Answer 9

Sets out three types of case, and explains that what is required for a fair hearing will be different in each:
1. Forfeiture
2. Legitimate expectation
3. Application

Question 10

What is required for a fair hearing in mere ‘application’ cases?

Answer 10

That the decision-maker act honestly and without bias (McInnes v Onslow-Fane)

Question 11

Ridge v Baldwin (1964)

Answer 11

Example of a forfeiture case, in which the forfeiting of something very important means that a significant amount is required for a fair hearing
A police officer was sacked in a way that he lost his pension rights, without knowing the case against him - this was unfair

Question 12

What are the two types of legitimate expectation?

Answer 12

Procedural: there is an expectation of a procedure being followed

Substantive: there is an expectation of a benefit being conferred

Question 13

What are the two ways a legitimate expectation can be created?

Answer 13

1. A longstanding practice
2. A clear and specific promise

Question 14

R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators (1972)

Answer 14

Example of a procedural legitimate expectation being created through a promise being made - Council promised to consult existing taxi drivers before granting new licences, but doesn’t

Question 15

R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government (2018)

Answer 15

Example of a legitimate expectation being created by a promise: S of S had promised in 2001, and then again in 2012, that reasons would be provided for a refusal to call in a planning application, and this undertaking had not since been withdrawn

Question 16

Mandalia v Home Secretary (2015)

Answer 16

An unpublished internal policy within gov’t department should still be followed, even if claimant not aware of it, as it’s aimed at creating fairness and consistency

Note: this is a bit different from legitimate expectation

Question 17

Lewis v Heffer (1978)

Answer 17

The right to a fair hearing may not apply when it comes to merely ‘preliminary’ decisions - here, Labour party officers were suspended pending an investigation - but as it wasn’t a final decision but only a temporary suspension, procedural impropriety didn’t apply

Question 18

What are the requirements for a fair hearing in forfeiture cases?

Answer 18

People should (1) Know the case against them and (2) Have the right to reply at each stage of the decision-making process
(Fairmount Investments Ltd v Secretary of State for the Environment [1976])

Question 19

Fairmount Investments Ltd v Secretary of State for the Environment (1976)

Answer 19

In forfeiture cases, people need to know the case against them and have the right to reply at each stage

Here, a CPO order is made - the decision is confirmed on grounds decided by an inspector, which had not been part of the Council’s case and to which Fairmount had not been able to reply

Question 20

R (ex p Benaim and Khaida) v Gaming Board (1970)

Answer 20

Usually, in application cases, the right to a fair hearing is only that decision makers act honestly and without bias, but when the decision is made due to something imputed against the applicant’s character, then they can be entitled to know the gist of the case against them

Question 21

Lloyd v McMahon (1987)

Answer 21

There is no automatic right to an oral hearing - it depends on the circumstances of the case

Here, Councillors had been warned twice of a deadline, but still missed it - they had not requested an oral hearing - held that justice didn’t require one here

Question 22

R (ex p St Germain) v Hull Prison Board of Visitors (No 2) [1979]

Answer 22

Example of the right to cross-examine witnesses being required for a fair hearing

Question 23

When does a duty to give reasons apply?

Answer 23

1. When the decision seems aberrant
2. When a fundamental interest is at stake

Question 24

R (ex p Cunningham) v Civil Service Appeal Board (1991)

Answer 24

There can be a duty to give reasons when a decision seems aberrant

The usual award for unfair dismissal was £15,000, but Cunningham was only given £6,500, with no reasons. This decision cried out for an explanation

Question 25

R (ex p Doody) v Secretary of State for the Home Department (1994)

Answer 25

There can be a duty to give reasons when a fundamental right is at stake

Here, it was the right to liberty, as the Home Secretary had not followed recommendations when deciding on the tariff for this offender

Question 26

R (Citizens UK) v Secretary of State for the Home Department [2018]

Answer 26

Case about the quality of reasons (rather than about when reasons have to be given)

Calais Jungle case - whether UASCs would be trasferred to the UK - 500 refused applicants were given only very short, often one-word decisions

Held: Reasons have to be sufficient to allow a challenge to the decision

(SSHD actually gave very short reasons precisely in order to remove the risk of challenge)

Question 27

Higher Education Funding Council, ex p Institute of Dental Surgery (1994)

Answer 27

Example of case where no duty to give reasons arose
A decision was made on a grant application - this required no more than the informed exercise of academic judgment

Question 28

Bates v Lord Hailsham [1972]

Answer 28

If a decision-maker is exercising a legislative function (i.e., creating delegated legislation), there is no requirement to consult or have a fair hearing under the rules of natural justice

Question 29

R (Coughlan) v North and East Devon Health Authority (2001)

Answer 29

Example of a substantive legitimate expectation being created through an undertaking

A woman moves into a care home, on the basis that she’s promised this can be her home for life, but then a few years later the council close the care home on the basis that it’s too expensive to run

Court finds that in such cases, courts can do any of:
1. Find the DM only needs to take the undertaking into account
2. Find that the undertaking creates a procedural legitimate expectation (such as to be consulted)
3. Find that going back on the undertaking would be so unfair as to be an abuse of power

Question 30

R (Niazi) v SSHD [2008]

Answer 30

It is only in exceptional circumstances that undertakings will only create a substantive legitimate expectation which going back on would be so unfair as to amount to abuse of power (per Coughlan)

The undertaking has to be clear and specific

Question 31

What factors determine whether a breach of a mandatory statutory procedural requirement is fatal to the decision or not?

Answer 31

1. Extent to which there has been substantial compliance
2. Extent to which the applicant is prejudiced

Question 32

Bradbury v London Borough of Enfield (1967)

Answer 32

A school fails to give notice to the public before combining a number of schools, breaching a statutory procedural requirement
This was unlawful

Question 33

Coney v Choice (1975)

Answer 33

A school fails to provide notice to parents of changes to a school by placing a notice near the front entrance of the school, but provided the other required forms of notice
This is not quashed, as this is a directory requirement, and there has been substantial compliance otherwise, meaning parents are not substantially prejudiced

Question 34

R v Soneji (2006)

Answer 34

In procedural ultra vires, there is no need to make a rigid distinction between ‘mandatory’ and ‘directory’ requirements: it’s better to consider the intention of Parliament and ask “Would Parliament have wanted a breach of this requirement to be fatal to the decision?”

Question 35

Jeyeanthan v SSHD (1999)

Answer 35

The SSHD simply using the wrong form when making a decision wasn’t enough to amount to procedural impropriety