Procedural Fairness Flashcards
Ridge v Baldwin (ratio + facts)
In cases affecting C’s personal or property rights, C must be given the opportunity to make representations, irrespective of whether the decision is classified as a “judicial” or “administrative” one.
Here the Watch Committee of the police force had to inform C of the grounds on which they proposed to proceed and give him an opportunity to present his case in defence before they could exercise their power to dismiss him.
What are the 3 situations in which procedural fairness will not apply?
- Where legislation expressly displaces the principles of procedural fairness (only reluctantly inferred by the courts, e.g. Wilkinson v Banking Corporation)
- The wider context in which the decision-making power is exercised precludes the application of principles of procedural fairness (GCHQ – considerations of national security)
- Where applying fair procedures would make no difference (Cinnamond;)
John v Rees
Courts should not readily reach the conclusion that fair procedures would make no difference since the law has documented many cases where procedural fairness, although initially thought to be inconsequential, turned out to make substantive difference
Polemis
The argument that following fair procedures would make no differences “mixes up the doing of justice with seeing that justice is done”
Health Stores
A “laboratory example” of a case in which the fair procedure demanded by C would “make no difference” - C had been duly consulted on the possibility of making kava-kava available only on prescription, and that possibility was rejected as an insufficient safeguard; D could not rationally have concluded that the less stringent measure of putting a warning on the label would suffice.
Three guiding principles when determining the content of the duty to act fairly.
i. A duty to act judicially (according to ALL the principles of natural justice) is distinct from the duty to act fairly (Pearlberg).
ii. The rules of natural justice are not engraved on tablets of stone (Lord Bridge, Lloyd)
iii. The essence is that C should have a reasonable opportunity to present his case (Russell)
McInnes
Megarry J distinguished between forfeiture, application and expectation cases; the requirements of fairness would generally be more demanding in the former.
How significant are the distinctions drawn in McInnes?
Not very.
In Khatun – Laws LJ acknowledged that in application cases there is usually legal space for the decision maker to exercise a discretion, having regard to the statutory scheme, whether or not to accord a right to be heard, but noted the distinction was a very fine one.
In Fayed the mere fact that C was seeking a privilege (i.e. application case) did not preclude the application of the rules of natural justice, for the decision here had high stakes for C; it not only deprived him of citizenship but had potential to damage his reputation
Lloyd v McMahon
If the procedural safeguards are unlikely to improve D’s capacity to obtain salient information(e.g. if C would merely use an oral hearing to reiterate his sincerity) it may be lawful to dispense with them.
Smith v Parole Board
Oral hearings are vital where credibility and veracity are at issue (e.g. risk assessment for release of prisoners), for they offer greater flexibility, allowing C to mould his argument to the issues which D regards as important
Doody
Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer
Why were special advocate proceedings held to be lawful in MB and Roberts?
o Roberts – C’s interests had to be balanced against those of the informant and public safety, making the special advocate procedure adopted by the Parole Board lawful
o MB – the involvement of the special advocate was in principle capable of assuaging any disadvantage flowing from non-disclosure
Criticisms of MB and Roberts
In Roberts Lord Steyn, dissenting – “The special advocate procedure [lacks the essential characteristics of a fair hearing]”; it involves a phantom hearing only.
AF No.3 - The HoL in MB refused to view the closed material; how could it then decide whether special advocates were capable of responding effectively to material on which they could not take instructions from C?
AF (No.3) - 2 points on CMPs
A v UK has established that C must be given sufficient info about the allegations against him (detail + sources of info need not be disclosed) so he may give effective instructions in relation to those allegations.
If the open material against C consists purely of general assertions and the case against him is based to a decisive degree on closed materials the requirements of a fair trial will not be satisfied.
St Germain (No.2)
Here Cs were accused of serious offences which, if established, could and did result in a very substantial loss of liberty, so the Chairman could only disallow the calling of witnesses reasonably, in good faith and on proper grounds, and had to give him the chance to cross-examine in relation to hearsay evidence
