procedural impropriety

Question 1

procedural impropriety defined by Lord Diplock in GCHQ

Answer 1

the ‘failure to observe basic rules of natural justice or failure to act with procedural fairness … [or] … failure … to observe procedural rules that are expressly laid down in the legislative instrument

Question 2

procedural impropriety focuses on…

Answer 2

making sure public bodies follow correct procedures, ensuring they’re followed in a fair way

Question 3

the three main elements of procedural impropriety are

Answer 3

• Makes sure natural justice is served – decisions reflect natural justice
• At any rate, things are done fairly, procedures are fair
• The relevant legislation sets out the specific rules

Question 4

Why is procedural impropriety needed

Answer 4

• Instrumental reasons – helps ensure accurate/appropriate outcomes
• Non instrumental reasons – reflects important values (fairness, rule of law, non-arbitrary exercise of public powers).
• ‘Procedures express society’s commitment to equal concern and respect for all’ (Allan, 1998)

Question 5

correct statutory procedures that decision makers should follow

Answer 5

• Statute often sets out procedures to be followed when making decision e.g. Consulting, produce impact assessment, give public notice

Question 6

mandatory requirement case

Answer 6

mandatory statute must be followed in full

Bradbury v Enfield LBC [1967] - have to attend secondary school from the age of 11-16

Question 7

directory case

Answer 7

decision maker is allowed to make the odd error or perhaps allowed to not follow the statute to the letter.

coney v choyce [1975]

Question 8

the modern approach

Answer 8

were omissions so serious that parliament would intend the decisions to be invalidated?
R v Secretary of State for the Home Dep, ex parte Jeyeanthan [2000]

Question 9

statutory consultations

Answer 9

• Procedures will differ, common one is need for public authority to consult before making decisions

consultations must follow “gunning” criteria (Ex parte Gunning) as endorsed in R(Moseley) v Haringey Borough Council [2014] -

Question 10

what is the gunning criteria

Answer 10

1. consultation must be at a time when proposals are still at a formative stage
2. proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.
3. adequate time must be given for consideration and response from the public
4. product of consultation must be conscientously taken into account when finalising any statutory proposals.

Question 11

cases with insufficient reasoning given to explain their proposals up for consultation.

Answer 11

R(Breckland) v Boundary Committee [2009]
R(Greenpeace) v Secretary of State for Trade an Industry [2007]
R (Moseley) v Haringey Borough Council [2014]

Question 12

rules of natural justice cases

Answer 12

Ridge v Baldwin [1964]
R v Secretary of State for the Home Department, ex parte Doody [1994]
Lloyd v MacMahon [1987]

Question 13

key PI question

Answer 13

were the processes fair in the context of the case

Question 14

Ridge v Baldwin [1964]

Answer 14

perennial fallacy - that because something cannot be cut and dried, or simply weighed and measured, it does not exist.
natural justice depends upon the circumstances of the case.

Question 15

Lloyd v MacMahon [1987]

Answer 15

not engraved on tablets of stone, natural justice depends on the character of the decision making body, the kind of question it has to make, and the statutory/other framework in which it operates.

Question 16

R v SSHD ex parte Doody [1994]

Answer 16

What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects’ (Lord Mustill

Question 17

hear the other side

Answer 17

audi alteram partem
once decisions made you deserve to hear the other side
once heard you can decide whether this is lawful or not and whether you want an oral hearing.

Question 18

no man may be a judge in his own cause

Answer 18

nemo judex in sua causa

Question 19

r v secretary of the home department, ex parte Fayed [1998]

Answer 19

‘unless applicant knowns areas of concern which could result in application being refused in many cases, and especially this case, it will be impossible for him to make out his case. Result could be grossly unfair’.

Question 20

Bank Mellat (No. 2)

Answer 20

serious consequences of the decision and need to respond to inaccuracies (note dissenters felt that prior notice was not needed given the appeal mechanisms set out by relevant legislation)

Question 21

r v secretary of state for the home department ex parte tarrant [1985]

Answer 21

the court held that the board did have the discretion to decide whether to afford the applicants legal representation or not. Although, the board was right to hold that the prisoners had no such rights, the failure to even consider their applications for legal representation was an infringement of the prisoners’ rights

Question 22

R v Board of Visitors of the Maze Prison, ex parte Hone [1988]

Answer 22

you can have legal (or other) representation depending on what has been alleged or the nature of the charges.

hone was accused of common assault.

Question 23

R v Governor of Hull Prison, ex parte St Germain (No 2) [1979]

Answer 23

cross examining witnesses is employed in the interests of justice

providing own witness can be important in the context of an alibi

Question 24

R (Bonhoeffer) v General Medical Council [2011]

Answer 24

legal representation is important here because it means that the accuser (the victim) is not being cross examined by the person they are saying sexually assaulted them.

representation allowed where it is in the interests of all the parties in the case.

Question 25

R v Thames Magistrate Court, ex parte Polemis (The Corinthic) [1974]

Answer 25

c was accused of a complex matter, spoke poor english and was given insufficient time to prepare a case.

circumstances considered, he was believed to need more time to prepare.