Procedural Impropriety Flashcards
What is procedural impropriety?
Lord Diplock in GCHQ- ‘failure to act with procedural fairness’
What values does PROCEDURAL FAIRNESS reflect? instrumental/non instrumental
instrumental: it helps to ensure accurate outcomes
Non-instrumental: fairness, the rule of law and non-arbitrary existence of public powers/authorities
Traditional Approach- Mandatory- makes a decision VOID or Directory? case law
Mandatory- Bradbury v Enfield LBC 1967- legal error- merging schools without given notice
Directory- Coney v Choyce 1975- minor shift from statute, since notice was given through letters, but wasn’t posted at the main entrance
Modern Approach- significance of the error, first suggested in Australian Case Project Blue Sky Inc#
Compliance with statute/ discretion/ consequences of decision
Jeyeanthan 2000- an appeal for a rejected claim- no injustice was caused to Jeyeanthan- pure technicality
What are statutory consultations and what criteria must they follow?
Contributions to policy formation and decision-making- consult before making a decision
ex parte Gunning 1985 principle, endorced in Moseley 2014- must be done when proposals are in a formative stage- a case regarding the Council Tax Reduction Scheme, where taxpayers were not consulted
must give sufficient reasons
adequate time must be allowed for the response- varies depending on context
The Rules of Natural Justice- fairness- case law
Ridge v Baldwin 1964- dismissed, equals to no pension rights- required
Lloyd v McMahon- 1987- depends upon character of the decision making body
Ex parte Doddy 1994- dependent on context of the decision
Hear the other side- audi alteram partem principle
Notice of the case against you
Reasons for the decision
right to an Oral Hearing
What does justice demand in the context of the case?
Notice of the case against you- first part of ‘audi alteram partem’
the factors that may lead the public body to make a decision not in your favour- ex party Fayed 1998- unless the applicant knows the areas of concern it will be impossible for him to make it out of his case- Lord Woolf
Bank Mellat 2- serious consequences of the decision
A duty to give reasons- audi alteram partem’
No general duty at common law, although statutes will often require reasons to be given
Or
it comes down to context
ex parte Doddy 1994- serious negative effects of the decision
Oral Hearing- audi alteram partem
aspects of cases which are better explained in person Osborn v Parole Board 2013
What are the requirements of an oral hearing?
ex parte Tarrant 1985
Legal Representation
Ex parte Hone 1988
Witness Cross-examination
Ex parte St. Germain No 2
Sufficient time to prepare
ex parte Polemis 1974
Reluctance of courts to act as a legislature- no duty to consult at common law
BAPIO case and Plantagenet Alliance LTD
Court should not contravene Parliament’s intentions by adding a further procedure as such consultation exercise
No notice given makes a decision void or claimant can claim damages
Baggs Case 1615- expelled from Corporation- no hearing had taken place
Cooper- demolition of a building
What is actual bias?+ case law
A decision maker has an interest of his own in the outcome of the decision- Re Medicaments and Related Classes of Goods No 2
What is not bias?
ex parte McCarthy- solicitor of defendant and clerk were from the same firm. Yet no unfairness was found during the proceedings.
Automatic Disqualification Rule- can be financial or non-financial
Financial Interest- must be more than de minimis- Dimes Grand Junction Canal case
Non-Financial- judge in his own cause- Pinochet No2
What is apparent bias?
A probability, danger or possibility of bias- R v Gough
What is not apparent bias?- as appears to a fair minded observer
Porter v Magill 2001- places public confidence at the heart
What is the ‘fair minded observer’?
Gillies case- assumed to be aware of ‘all the facts that are capable of being known by members of the public’
Is meant to place public at the heart, but likely results are that it reflects the views of the judge?- case law
Taylor v Lawrence- judge found in favor of the claimant
Stubbs v The Queen- found apparent bias on the part of the judge who heard an appeal from a criminal trial
