PROCEDURAL IMPROPRIETY Flashcards
In what case was PI defined?
LORD DIPLOCK: GCHQ: ‘the procedural ground; this is because it aims to review the procedure of a decision-maker rather than their actual decision’.
When does a PI claim arise?
From either a failure to observe procedural rules set by statute (AYLESBURY MUSHROOMS)-but minor infractions may not render a decision void: HERON) or if the common law rules of natural justice have not been adhered to (duty of fairness).
What are the two aspects of the duty of fairness?
RIGHT TO BE HEARD
RULE AGAINT BIAS
To what type of decision does the right to be heard apply?
Both administrative and judicial; but administrative ones attract a lower level of fairness (RIDGE v BALDWIN).
What are the exceptions to the right to be heard?
National security: GCHQ.
Emergency situations: PEGASUS.
Rationing of resources: CAMBRIDGESHIRE AHA exp B.
Waivered right to fairness: LLOYD v MCMAHON.
How is the level of fairness decided upon?
Circumstantially by case; is a flexible concept.
LLOYD: look at how it affects individuals, the character of the body, the statutory/policy framework.
DURRAYAPAH v FERNANDO: 3 factors to consider:
- Nature of office (important; higher DOF).
- Circumstantial seriousness: RIDGE.
- Sanctions: higher the sanction, higher the dof: COOPER v WANDSWORTH.
How do licence applications impact upon establishing the duty?
LIVERPOOL TAXIS: those granting must act judicially, weighing up arguments.
MCINNES v ONSLOW-FANCE: distinguish between application and forfeiture cases; the latter needs a higher DOF because people have a LE to be explained why they lose: R v GAMING BOARD.
After the level of fairness has been decided, the content of fairness must then be ascertained; what is required in all of the circumstances. What does this involve?
- RIGHT TO NOTICE AND INFORMATION: POLEMIS: must be given enough time to prepare case.
- RIGHT TO MAKE REPRESENTATIONS:
- RIGHT TO CALL/CROSS-EXAMINE WITNESSES: ST GERMAIN: depends on nature of body/decision; concerned prison riot.
- RIGHT TO LEGAL REPRESENTATION.
- RIGHT TO HAVE REASONS EXPLAINED.
Concerning the right to make representations; how should whether they are oral or written be determined?
R v ARMY BOARD exp ANDERSON: criteria for deciding if oral:
Look at: subject matter, nature of the decision, substantive factual issues.
E.g. R v SMITH & WEST: no hearing as already in prison.
Note: if facts are disputed or the character of the individual is important, then always oral.
WISEMAN v BORNEMAN: so long as the whole process is fair .
The right to have legal representation is governed by which cases?
HONE: there is no general right to legal rep; but generally it should be exercised in legal favour (PET v GREYHOUND).
EXP TARRANT: the more vulnerable the claimant the more likely they are to get it.
The right to have reasons explained is governed by which cases?
HASAN: if statute imposes.
DOODY: fundamental issues should be explained.
INST DENTAL SURGERY: if however it is too onerous to provide reasons then they don’t need to.
The second aspect of the duty of fairness is the rule against bias: what are the two types?
EXP MCCARTHY: justice must be manifestly seen to be done.
DIRECT & INDIRECT.
Direct bias is what?
If there is for example a pecuniary or monetary interest in the decision: DIMES v GRAND JUNCTION: shares in the company.
or non-pecuniary: PINOCHET: amnesty; but must be more than mere membership.
BOVIS v NEW FOREST: not all decisions are subject to this rule but ALL judicial ones are.
Indirect bias is what?
R v GOUGH: juror new family, but case failed as this was only established after the decision.
DG FAIR TRADING v PROP ASSOC: if a reasonable person considers there is be a REAL (PORTER v MCGILL) possibility of bias.
