procedural impriopriety

Question 1

what does procedural impropriety as a ground for judicial review cover?

Answer 1

Procedural impropriety as a ground for judicial review covers the failure by the decision-maker to observe procedural rules that are expressly laid down in the legislation by which its jurisdiction is conferred, or a failure to observe basic rules of natural justice, or a failure to act with procedural fairness

Question 2

what does procedural impropriety require ?

Answer 2

Procedural propriety requires that, where there is statutory power to interfere with individual liberties or where a person’s living or other existing or possible future social status or security are at stake in dispute having a public law element, then in principle the person whose rights or interests are to be interfered with should be given the benefit of a fair decision- making procedure.

Question 3

what does the court use procedural justice to do and why?

Answer 3

Courts use procedural justice to control use of public power in decision-making. Due to inexorable growth of public power, the role of procedural justice is significant.

Question 4

what does the common law provide procedural justice as

Answer 4

The common law provides procedural justice as
(i) nemo judex in causa sua potest (no man can be a judge in his own cause), which will be breached where the decision-maker has a direct financial interest or has acted both as prosecutor and judge, or where there is a real danger of bias and
audi alteram partem (The Right to be Heard), which requires prior notice to be given of a decision adverse to individual interests together with an opportunity to make representations

Question 5

where is procedural justice also laid down in ?

Answer 5

Procedural justice is also laid down in Article 40.3(1) and (2) of the Constitution, Article 6(1) ECHR, precedent and statutory procedural requirements.

Question 6

what condition is imposed when the oireachtas gives a decision maker a statutory power ?

Answer 6

When the Oireachtas gives a decision maker a statutory power, the condition in which is imposed is known as a statutory procedural requirement.

Question 7

what does invalidity depend on ?

Answer 7

Invalidity will depend on the statute purpose of the statute.

Question 8

what are procedural requirements?

Answer 8

Procedural requirements are a tool for judicial supervisory functions in order for them to decide whether a decision maker has complied with statutory procedural rules.

Question 9

what is a sufficient basis for invalidity?

Answer 9

Non-compliance coupled with impact on rights is often sufficient basis for invalidation.

Question 10

list the fair procedures which should be applied in every case.

Answer 10

1. The right to have notice of administrative action;
2. The right to know the case against you;
3. The right to legal representation;
4. The right to a public hearing;
5. The right to examine witnesses; and
6. The right to a prompt hearing.

Question 11

In state (Murphy) v Kielt [1984], what did Barron J. hold that were the requirements of a fair hearing ?

Answer 11

1. Evidence from which it would have been fair to hold in favour of the allegation.
2. Notification to the applicant of the nature of such evidence sufficient to enable him to prepare a defence.
3. Time for the applicant to prepare a defence; and
4. An opportunity to make that defence.

Question 12

what are the two categories that statutory procedure is classified into ?

Answer 12

Mandatory Procedure is when non-compliance results in a decision being nullified. Directory procedure is when non-compliance will not render a decision null and void.

Question 13

Statue rarely stipulates consequences for non-compliance although there are exceptions so what are those exceptions?

Answer 13

S.5 Adoption Act, 1976 and S. 8(6)(b) Garda Siochana Act, 2005

Question 14

what are the facts of the case State (Ingle) v O’brien [1974] ?

Answer 14

In State (Ingle) v O’brien [1974], the decision of the Garda Commissioner to revoke the licence of a taxi driver was declared invalid when no notice of intention to revoke his licence had been given to him and he had not been given the opportunity to state his case against the making of revocation.

Question 15

what did Barron J hold in the case of State (Murphy) v Kielt [1984] ?

Answer 15

In State (Murphy) v Kielt [1984]. Barron J. held that the applicant was entitled to the evidence against him, as well as the evidence which was in his favour, in order to allow him to prepare a defence.

Question 16

what did the Supreme Court find in the case of State (Healy) v Donoghue [1976] ?

Answer 16

in State (Healy) v Donoghue [1976], the Supreme Court found that where an accused faces a serious charge and by reason of lack of education, requires the assistance of a qualified lawyer in the preparation and conduct of a defence to the charge, then, if the accused is unable to pay for that assistance, the administration of justice requires the State to pay for it via free legal aid.

Question 17

what is the right to a public hearing protected by?

Answer 17

The right to a public hearing is protected by both Art 34.1 of the Constitution and art 6 of the ECHR

Question 18

What do public hearings prevent ?

Answer 18

Public hearings prevent abuse of power and ensure trust in the judicial process.

Question 19

Not every case in Ireland will be heard in public, some cases such as rape trials or family law cases are heard in camera, where are these exceptions provided for ?

Answer 19

These exceptions are provided for under Art 34.1 of the Constitution and certain statutory provisions, including s.45 of the Courts( Supplemental Provisions) Act 1961.

Question 20

where was The right to cross-examine one’s accusers was first recognised ?

Answer 20

The right to cross-examine one’s accusers was first recognised in Re Haughey [1971] and was again recognised in Flanagan v University College Dublin [1988].

Question 21

what did Murphy J hold in the case of Phonographic Performances v Cody [1998] ?

Answer 21

In Phonographic Performances v Cody [1998]. Murphy J. held that “the examination of witnesses viva voce and in open court is of central importance in our system of justice.. It is a rule not to be departed from lightly”

Question 22

What did Edwards J state in KM v Minister for justice [2007] . ?

Answer 22

In KM v Minister for justice [2007] Edwards J. stated that “the principles of constitutional and natural justice include a right to have a decision made… within a reasonable time”

Question 23

how do the Courts assess whether the right to a prompt hearing has been breached ?

Answer 23

In assessing whether this right has been breached, he stated that, first, a court should address if there has been a delay in rendering the administrative decision, and secondly, if there has been a delay, whether the degree of delay is so unreasonable or unconscionable as to constitute a breach of the applicants’ fundamental rights.