Procedural Impropriety Flashcards
Common law right of consultation when public agency promises.
ex parte Liverpool Taxi Fleet [1972]
Wanted to increase no. of taxis. Promised consultation before final decision then ignored. Creates legitimate expectation of consultation.
Cannot have blanket discrimination against legal representation.
ex parte Tarrant [1985]
Consider:
- seriousness of charge and penalty
- whether points of law are involved
- ability to represent self
- procedural difficulties
- speed
- fairness
Required to consult if change is pressing/focussed on small group
Bhatt Murphy [2008]
Criteria for meaningful consultation
ex parte Gunning [1985]
- proposals must be at a formative stage
- have to give sufficient reasons for proposals (explain alternatives)
- give adequate time to respond
- product of consultation must be taken into account
Current test for apparent bias
Porter v Magill [2001]
“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”
Consultation required by statute must be adhered to
Agricultural Training Board v Aylesbury Mushrooms [1972]
Dept. required to consult before imposing a levy/tax on training boards. Sent letters but never clear mushroom board had got them. Refused to pay as not consulted.
No general common law duty to consult but previous past practice of consultation creates a legitimate expectation.
GCHQ [1985]
Exception: national security issue.
Lord Hewart: “justice should not only be done but should manifestly and undoubtedly be seen to be done.”
Apparent bias
ex parte McCarthy [1924]
Justices’ clerk (also partner of law firm acting on behalf of D) in same room when magistrates deciding dangerous driving case BUT had not been consulted.
Conviction was quashed as clerk’s conflict gave rise to apparent bias.
No legal requirement to give oral hearing: depends on case or if asked for one.
Llyod v McMahon [1987]
Auditor case with council refusing to set tax rates. Breach so sanction.
Councillors produced collective defence (political) but no individual asked for oral hearing.
Guidance on what adequate reasons are
South Bucks DC v Porter [2004]
-intelligible and adequate
-understand why decided/conclusions reached
-must cover main issues but not everything
-no substantial doubt that error of law
-party challenging must be substantially prejudiced by failure to provide adequate reasons
Gypsy in static caravan breaches planning permission of land. Appeal to inspector - ill so let her stay. Council challenges, no adequate reasons.
Should give reasons if obviously doing something different and unusual.
ex parte Cunningham [1991]
Unfair dismissal of prison officer. Dealt with by civil service board of appeal not employment tribunal. Compensation £6,000 - in tribunal would be £12-14,000. No reasons given and no appeal against decision offered.
Dimes v Grand Junction Canal (1852)
Although HoL found no evidence of bias still automatic disqualification.
Case ruled in favour of GJC but judge omitted to acknowledge that he owned shares in GJC.
ex parte Fayed [1997]
Ruled that must give applicant indication of case against him but no duty to give reasons.
Mohammed Al Fayed application for British citizenship refused. S44 of British Nationality Act - no reasons needed to be given. Lacking ‘good character’. Example of the court looking for reason to impose duty.
Right to know case against you - don’t have to give all the details but have to tell something.
Benaim and Khaida [1970]
Application for licence of gambling club denied - thought involved in organised crime. But no reasons given.
No general duty to give reasons, but may be in exceptional circumstances.
Doody v Home Secretary [1993]
About prisoner’s liberty - deemed to be only fair to give reasons, plus need reasons to be able to challenge decisions.
R v Gough [1993]
Previous test for apparent bias:
- ascertain the circumstances
- what does the court think
- was there a real danger of bias
Right to a fair hearing - if you have the power to affect other people you must be fair.
Ridge v Baldwin [1964]
Chief constable of Brighton unfairly dismissed with no hearing. Not a judicial body - almost an admin procedure .
Cross-examination of witnesses should be allowed when cases dispute the facts.
Need to give a proper hearing.
ex parte Anderson [1992]
Complaint of racial discrimination to Army Board. Investigation board never met, circulated papers serially. Only 1st person reads case fresh as others’ comments.
Only appropriate to give summary if public interest immunity.
Entitled to oral hearing where fairness and facts of case demand.
Osborn v Parole Board
Criteria:
- important facts in dispute/significant explanations
- no other way to properly and fairly make independent assessment of risk
- face-to-face questioning necessary for prisoner’s case to be put effectively
- in light of prisoner’s representations it would be unfair for paper decision by single member panel to be final without oral hearing.
Must have sufficient time to organise a reply
Lee v DES [1968]
3-4 days not enough.
No apparent bias because of membership if don’t express association with its views.
Helow v SoS for the Home Dept. [2008]
Judge member of pro-zionist Jewish lawyers association, rejected Palestinian application for review of asylum.
No bias as no express association - didn’t write about views.
In contrast, one of the Locabail cases judge wrote about how PI compensation shouldn’t be given so was bias in that case.
Basis for the current apparent bias test - medicines.
Re Medicaments and relaxed classes of goods (No2) [2001]
Change to Gough in light of HRA: whether a fair-minded observer would see a real possibility of bias?
Competition case, where expert judge asked for job from consultants providing evidence.
The apparent bias test in practice - composition of juries case.
R v Abdroikov [2007]
- Police officer in attempted murder trial. No bias as no dispute as to evidence and no close relationship between juror and prosecutor.
- Serving police officer in same borough as those that arrested D for assault. Yes bias, disputed facts and close proximity.
- Member of CPS in rape case. Yes bias, justice not seen to be done. Neutral role filled by full-time salaried worker of prosecution.
Meaningful consultation - have to explain alternatives.
R (Moseley) v Haringey LBC [2014]
Changes to council tax scheme. Portrayed as no choice but to cut funding. Could have also raised local taxes or cut other services.
Court held failed to meet Gunning criteria. Need to be more open.
Cannot be a party in your own cause - automatic disqualification
ex parte Pinochet (No2) [2000]
Lord Hoffman’s role of trustee for charity side of Amnesty international meant non-pecuniary interest so shouldn’t have sat on case. Retrial.
Bias in non-judicial cases - entitled to have opinion, just has to listen to evidence so no bias.
Franklin v MTCP
Minister goes to explain policy of building new towns after WWII bombing. Residents hostile. He asserted that it will happen.
Politicians are allowed to have a predisposition but must take other side into account.
Al Rawi - closed material procedures
Claiming unlawful torture in Guantanamo Bay because of British security. Evidence needed from security services.
Whether could operate closed material procedures in judicial review? No. Against common law principles e.g. fair hearing
Bank Mellat (No1) - closed material procedures.
Supreme Court should hear closed material procedures - set out in statute for first instance and CoA in relevant act so Parliament could not have intended to restrict. Otherwise illogical.
Iranian bank assets frozen as thought involved in funding Iranian nuclear program, using Counter Terrorism Act 2008.
What is the content of the right to a fair hearing?
- notice of the charge
- time to organise a reply
- right to put the reply
