Natural Justice

Question 1

Procedural Impropriety

Answer 1

• Natural Justice
• Right to be heard
• Rule against bias

Question 2

Natural Justice basics

Answer 2

• Ridge v Baldwin - confirmed NJ must be respected in all administrative decisions.
• R v Secretary of State for the Home Department, ex parte Doody - identifies key concepts when the risks of natural justice form part of a claimant’s argument

Question 3

NJ - Right to be heard

Answer 3

• The right to know the case against you.
• The right to be given reasons for the decisions which have been made
• The right to an oral hearing (including to bring legal representation)
• Right to cross-examine witnesses
• Right to be able to prepare adequately.

Question 4

Right to know case against you

Answer 4

• that ‘prior notice’ is given or that a ‘disclosure’ is made.
• R v Secretary of State for the Home Department, ex parte Fayed - whether the minister should have provided an indication of the case against the Fayeds before making their final decision
• Bank Mellat v HM Treasury - procedurally unfair for the Treasury not to have given an Iranian bank prior notice that it was to be the subject of an asset freezing order.

Question 5

Duty to give reasons for the decisions

Answer 5

• Doody - Given that the personal liberty of each prisoner was in question, it was especially important that the HS disclosed their reasons so that the prisoners could understand why they had been given this tariff.
• Dover v Kent - when decision is ‘aberrant’

Question 6

Right to an oral hearing

Answer 6

• Osborne - whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and . . . the importance of what is at stake’.
• Adequate time
  - Complex issues - Polemis - court summons at 10.30am and was expected to appear before magistrates at 2pm the following day.
• Legal rep - Tarrant - charges were to be heard by the prison’s Board of Visitors, which had refused the prisoners’ requests for legal representation.
• Cross-examine witnesses - Saint-Germain- riots & prisoners were charged with more than 500 disciplinary offences.

Question 7

Rule against bias

Answer 7

• McCarhty - ‘Justice must not only be done; it must manifestly and undoubtedly be seen to be done’
• Re Medicaments - legal definition of bias.
• nemo judex in sua causa: ‘no man may be a judge in his own cause’.

Question 8

Direct bias

Answer 8

• decision-maker is said to have a financial, property-based, or other direct interest in the outcome of the case.
• Dimes - Personal or pecuniary interest.
• O’Callaghan - exceptions of amount to small to raise direct bias.
• Pinochet - Lord Hoffman had link with Amnesty International.
• Helow - direct bias can only be raised in relation to a judge’s interest in the specific case being decided.
• if direct bias - assume that the decision-maker was biased and that their decision cannot stand.

Question 9

Apparent bias

Answer 9

• Porter v Magill - Relevant test was whether ‘the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’.
• Magill’s decision was not biased, they were preliminary findings.
• Gilles - fair minded and informed observer - “can be assumed to have access to all the facts that are capable of being known by members of the public generally”