#17228 - Jr Procedural Impropriety - GDL Constitutional and Administrative Law

Lord Diplock in GCHQ, there are two halves to this:

• 1) Procedural requirements enjoined by legislation.

• 2) Procedural requirements laid down by common law

Laid down in statute: duty to notify certain third parties, within time frames, consultation, notification of appeal, publication etc.

Divided in two (Lord Penzance in Howard v Bodington (1877)):

• Mandatory Requirements

  • Breach of this will generally nullify the decision affected. This results in ultra vires action

• Directory Requirements

  • Breach of this will not generally have such a strong affect. This is merely an intra vires error – regrettable but venial.

London & Clydeside Estates v Aberdeen District Council [1979] - suggested that there should be a further sub-division of directory requirements.

• Those with which substantial compliance was required

• Those which did not especially matter.

• Lord Hailsham opposed this: parliament expects all statutory requirements be obeyed.

Generally described as the rules of ‘natural justice’

Essentially two rules

• The principle that both sides of a case must be fairly heard (the requirement of fairness).

• The principle that adjudication must be impartial (various rules against bias).

Ridge v Baldwin (1964) – Ridge, Chief Constable of Brighton, was acquitted of a charge but the Judge said that a change was needed in Brighton. Ridge was sacked without being given a chance to defend himself. CA held that natural justice should not apply, HoL reversed this decision.

• Lord Reid: recently the rules of natural justice have not been applied. This rested on the fallacy that because something cannot be nicely weighed or measured it does not exist.

  • There is always a duty to act judicially.

  • Only time this receded was wartime.

The right to a fair hearing

• The duty is related to the seriousness of the sanctions:

  • Cooper v Wandsworth Board of Works (1863) – required to give seven days notice before building. Cooper only gave five and the LA ordered the demolition of the building in the middle of the night. Did not give him chance to be heard.

    • Held the board was acting improperly.

• This can be waived or excluded:

  • Cooper v Wandsworth Board of Works (1863) – counsellors had not requested a hearing therefore could not complain on grounds they had not had a hearing.

  • Re HK (an infant) [1967] – HK claimed to be an infant. The immigration officer contended that he was not. Was held that the officer need not call a court to establish this.

  • Cinnamond v British Airport Authority [1980] - Authority had exercised its powers under bylaws to ban six minicab drivers from entering Heathrow, had been loitering ripping people off etc, each had a string of past convictions.

    • Drivers claimed they had not been given a chance to defend themselves. Lord Denning sided with BAA – they could have got in touch with the authority immediately after the ban was imposed (they still could)

    • Brandon LJ: No one can complain of not being given an opportunity to make representations when such an opportunity would have availed you of nothing.

      • Heavily criticised for this.

  • Glynn v Keele University [1971] – Student was suspended without any form of hearing for having been caught sunbathing naked on campus.

    • Court held that there was nothing he could have said in his defence – he suffered no injustice.

• McInnes v Onslow-Fane [1978] Palintiff held a variety of licences in connection with boxing, all had been withdrawn. Applied for managers licence but was rejected five times. Megarry J divided cases into three categories for the purposes of deciding what degree of procedural protection is required

  • 1) Forfeiture cases – cases where the individual stands to lose something which they have.

    • Require a high level of procedural protection.

  • 2) Application cases – individual is merely applying for something which she has never had before.

    • E.g. a licence for the first time. Virtually no procedural protection applies. The protection is instead provided by the rules against the abuse of discretion.

  • 3) Expectation Cases – the individual has good reason to suppose the decision will go his way.

    • E.g. a licence comes up for renewal, confirmation of a permanent appointment after provisional work. These lie more towards the forfeiture end of the spectrum than the other.

• ex parte Tarrant [1985] - Was there a right for prisoners to have legal representation in oral hearings. Held there was no right, but a discretion to allow it.

  • The court set out six considerations of the conditions under which a prisoner facing internal disciplinary proceedings should be given access to legal representation.

    • 1) The seriousness of the charge and potential penalty;

    • 2) Whether points of law are likely to arise;

    • 3) The capacity of the prisoner to present his own case (intellectual and educational);

    • 4) Procedural difficulties (e.g. interviewing relevant witnesses);

    • 5) The requirement for reasonable speed in determining the charge

    • 6) The need for fairness between prisoners and prison staff.

Generally divided into four sub rules:

• 1) Rule against actual bias

  • The decision of a less than partial decision maker cannot stand. Rationale of fairness

• 2) Judging in ones own court

  • No one can decide a matter while being a party to the same proceedings.

• 3) Rule against pecuniary interests:

  • Financial interest of the judge in a matter means he is automatically disqualified from hearing it.

• 4) Rule against the appearance of bias

  • Most debated area. R v Sussex Justices ex parte McCarthy: Lord Hewart: “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Some confusion as to which sub rule can/should be engaged:

• Dimes v Grand Junction Canal (1852) – Judge found to have shares in company involved in his trial. HoL set aside his decision.

  • Lord Campbell: ‘No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern’

  • Concludes by emphasising that the appearance of bias must be avoided (but there had been no appearance of bias?) Really this was based on pecuniary interest.

Two lines of cases re appearance of bias threshold: either real likelihood/danger of bias or reasonable suspicion of it

• R v Gough [1993]: a member of a jury realised after conviction that she lives next door to the brother of the accused.

  • Goff LJ stated that he correct test was as real danger of bias.

• ex parte Pinochet [1999] – Amnesty international permitted to intervene in extradition case. Anonymous phone call pointed out that Lord Hoffman was an unpaid director of Amnesty International and chair of it's charitable arch, which he had made no mention of. HoL invited to JR itself.

  • Lord Browne-Wilkinson finessed to highlight rule against pecuniary interest so that disqualification automatic and no investigation required.

Affected by HRA, now returning to pre-Gough position:

• Porter v Magill [2002] - councillor sold homes at a discount. This indirectly increased number of conservative voters in the wards.

  • Test: ‘whether those circumstances [of the case] would lead a fair-minded and informed observer to conclude that there was a real possibility of bias.’

• Locabail v Bayfield [2000] – conjoined appeals, CA went through a variety of factual situations:

  • Does a former member of the chambers sitting as judge mean there is bias? No

  • Do council and the judge being Masons lead to bias? No

  • There may be bias if a judge has been particularly critical pf bias in the past.

Potential problem where the decision maker has inalienable interests suggesting the appearance of bias, but also the duty to make a decision.

• ex parte Terry (1985) - Not uncommon for a local authority to be obliged to make a decision relating to land or other property in which it has an interest. Here there is a seeming administrative impasse.

  • The rule against the appearance of bias is here disguarded and a less test of abuse of discretion is adopted.

There is no general duty to give reasons at common law, the...