#16703 - Procedural Fairness Rule Against Bias & Right To Fair Hearing Problem Question Notes - Administrative Law

Why is impartiality important?

1. Actual fairness

2. Appearance of fairness. This reflects a key policy objective of preserving public trust in administrative and judicial bodies, such that individuals are willing to co-operate with public authorities to secure effective administration.

• R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256:

Facts: W, represented by firm X, sued M in civil proceedings (Whitworth v McCarthy). At the same time, M was being prosecuted for a road traffic offence (Crown v McCarthy), and the clerk to the justices in the magistrates’ court was a partner in firm X. He had retired with the justices, but had not been consulted while the justices were coming to their decision. M then sought a quashing order in respect of his conviction on the basis of the clerk’s influence.

Analysis: the clerk has not materially influenced the decision of the judges. So actual fairness was not an issue.

Verdict: Successful. While the clerk did not materially influence the outcome, Lord Hewart CJ made it clear that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

Lord Hewart CJ at 258-259: ‘It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.’

1. Financial interests

• Dimes v The Proprietors of the Grand Junction Canal (1852)

Facts: Lord Cottenham LC granted relief to the respondent company, which he held shares in. It was argued that the validity of his actions was in question and the decision should be set aside.

Verdict: Successful.

Lord Campbell at 793: ‘No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern’. But no-one is to be ‘a judge in his own cause’ (nemo judex in causa sua).

In the past, any financial interest will disqualify a decision-maker.

• R v Rand (1865-66) LR 1 QB 230, Blackburn J at 232:

‘any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter’.

• R v Camborne Justices, ex parte Pearce [1955] 1 QB 41, Slade J at 47:

‘It is, of course, clear that any direct pecuniary or proprietary interest in the subject-matter of a proceeding, however small, operates as in automatic disqualification. In such a case the law assumes bias.’

Now, however, there is a de minimis exception:

• Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, at [10]:

Facts: L was a secured creditor who had given a loan to E. The loan was secured on his property. E’s wife claimed she had a share in some of E’s property. S was an unsecured creditor who had given another loan to E.

It would help S if E’s wife lost her case, because there would be more of E’s property for S to claim out of, if E defaulted on his loan. The judge deciding E’s wife’s cases was a partner in HS, a client of S.

A diagram of the financial relations in this case:

Verdict: ‘While the older cases speak of disqualification if the judge has an interest in the outcome of the proceedings “however small,” there has in more recent authorities been acceptance of a de minimis exception’.

2. Non-financial interest

Automatic disqualification for non-financial interests. The rule was extended on the basis of (i) maintaining the appearance of fairness (no space for fine distinctions if we want justice to be seen to be done) and (ii) on the lack of dichotomy between financial and non-financial interests when it comes to the rule “no many should be a party to his own cause”.

• R v Bow Street Metropolitan Stipendiary Magistrates, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119

Verdict: decision in Pinochet (no 1) quashed.

Lord Browne-Wilkinson noted that automatic disqualification can extend beyond financial interests at 588: “[A]lthough the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause.”

PQ approach: AQ triggered only when (i) a decision-maker is closely connected with a party to a case, and (ii) the decision-maker has a strong commitment to a certain subject matter or cause (Pinochet (No 2)).

NB. Pinochet (No 2) is exceptional and has been heavily criticised.

• Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416

Facts: Palestinian asylum seeker who came from Lebanon. She was claiming asylum on the basis of her involvement with Palestinian Liberation Organization, she argued her life would be in danger if she returned to Lebanon.

The claimant argued that Lady Cosgrove was biased as she was a member of the International Association of Jewish Lawyers and Jurists

Verdict: no automatic disqualification. The society was not a party to the case. Lady Cosgrove has also not necessarily aligned herself to the views of the society.

If unclear, remember that appearance (of justice) matter. In Pinochet (No 2), Lord Browne-Wilkinson’s decision emphasized the importance of the appearance (rather than the reality) of bias. Because the courts should be concerned with whether justice is seen to be done, there can be no room for fine distinctions, such as the fact that Lord Hoffmann was a director of AICL, not AI. McCarthy: “justice should not only be done but should manifestly and undoubtedly be seen to be done”.

1. The test

• Porter v Magill (2001)

Facts: Westminster CC adopted a policy of selling council houses to tenants in marginal wards hoping that this would encourage them to vote for the Tories. The auditor investigated the matter and certified that a number of councillors were guilty of wilful misconduct by knowingly adopting and implementing an unlawful policy. IT was argued that the auditor’s decision could not stand because it was tainted by apparent bias, caused by a media conference that he had held.

Verdict: Unsuccessful. Lord Hope affirmed that the test for apparent bias was changed.

At 103: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”

In this case, there was nothing in the words used at the press conference (he emphasised that the findings were provisional) to give rise to apparent bias.

2. How informed is the observer?

There is no general approach: all we have are pockets of knowledge the courts have or have not imputed onto the FMIO.

Re Medicaments: Lord Phillips suggested that the court should have regard only to such information as would be apparent to “ordinary, reasonably well-informed members of the public”. Lord Hope noted that the observer can be assumed to have access to “all the facts that are capable of being known by members of the public generally”.

However, two cases to be reconciled, where the courts expanded the knowledge of the observer

• Taylor v Lawrence (2002): the fair-minded and independent observer would be aware of the legal traditions and culture of the jurisdiction, including the practice of judges and advocates dining together at the Inns of Court and judges and advocates in the same chambers. Facts: The judge was a client of the solicitor who represented one of the parties to the case over which he was presiding. The night before the judgment, the solicitor changed the judge’s will at his request, free of charge. Held: no bias.

• Belize Bank Ltd v AG of Belize (2011): the informed observer would be aware of the general structure of the system of appeal, that this is a procedure under which the minister is statutorily authorised to appoint members of the Board, that there is a limited pool of candidates, and that the appointees are required to take the oath of office. In short, the court was prepared to ascribe a large degree of technical knowledge to the observer. On the facts, there was no appearance of bias where...