Procedural Impropriety Flashcards
Rule against bias
Decision makers must always be impartial; even potentially partial decisions must recuse themselves
Not being a judge in ones own cause
Nemo debet esse Judes in proprieta casua
How is PI interpreted by the courts
‘Failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affedcted by the decision (as well as) failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is confered’ -
Automatic disqualification
When a decision maker has a pecuniary interest in the outcome of any decision , they have presumed bias
Dimes v Proprietors of Grand Junction Canal
No need to look and seei f there was actually bias
Also see Pinochet
Automatie disqualification - Non pecuniary losses
R v Bow Street Metropolitan Stipendiary Magistrate and Others
Automatic Disqualification can extend to non pecuniary interests - the promotion of a cause shard with one of the parties
What is Non automic disqualification
Where Decision makers may be disqualififed for broader impartiality considerations
Legal Test for Non-Automatic disqualification
Magill v Porter
‘Whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision maker was biased’
Test is for reasonable suspicion
Previous test for Non-Automatic Disqualification
Real danger test - R v Gough
HoL confirmed this
Bias with a judge
El-Farargy and El-Farargy
Judge made jokes about the applicant flying off on a flying carpet - enough for their to be a likelihood of bias and the judge was recused.
Key theme
Look for evidence of a pre-determined/closed mind
Political affiliation
R(on the application of Legard) v Kensington and Chelsea RBC
Answer is that political affilitaion is not usually sufficient for automattic disqualification
On statutory procedures
Herron v Sunderland City Council
Procedural errors can be enough to review - Potentially an opening to use PI
Instead emphasis is on the consequences of non-compliance
Reasonable Suspicion test
Whether a fair minded and informed observer, having considered the facts would conclude that there was a real possibility that the tribunal was biased
Political Affiliation with other factors
R v Bow Street
Also considered factors such as public statements and personal relationships
Difference between Automatic and Non automatic
With NA - The allegations are carefully considered by the court to help uphold principles of fairness and impartiality
