⇒ Public bodies may have to follow certain procedures when making decisions or determinations

⇒ These procedural requirements may be required by:

• Statute;
• The common law;
• Article 6 ECHR

⇒ Whether a procedure needs to be followed will depend on a range of factors including:

• The nature of the decision-maker;
• The context of the decision-making;
• The affect of the decision on the claimant;
• Whether the decision affects the claimant only, or whether the decision is of broader public interest

⇒ The law does not require procedures to be followed in all circumstances. But where procedures must be followed, they may include:

• The provision of an oral hearing;
• The duty to give reasons for the decision;
• The right of the claimant to representation;
• The right to a decision made without bias or the appearance of bias.

⇒ In addition to fair process and procedure, fairness may require public bodies to act in certain procedural or substantive ways because of the prior conduct of those public bodies.

⇒ The law of legitimate expectations (see the next notes) covers this area, but be mindful of this now as it relates to procedural fairness too

⇒ Requiring procedures to be followed would hopefully lead to better decision-making.

⇒ But it is also important to follow procedures so that justice can be seen to be done

⇒ The claimant is also treated with greater respect where their claim has been dealt with by fair process

⇒ Cooper was building a house without permission. The Board of Works sent a few workmen to the house late in the evening and “razed it to the ground”. It was a legal requirement to give 7 days notice before building on a plot of land, but Cooper did not give sufficient notice and built on the land anyway. Cooper bought a claim in trespass against the Board of Works for demolishing his building, despite his insufficient notice. Cooper won the case.

⇒ Byles J held that “no man is to be deprived of his property without his having an opportunity to be heard.” – there could, of course, have been good reason for the lack of insufficient notice from Cooper. This is “…founded upon the principles of justice.” According to Willes J

⇒ A police chief constable was tried and acquitted on charges of conspiracy too obstruct the course of justice. Although innocent, the (criminal) trial judge remarked about his lack of professional and moral leadership. A committee overseeing police appointments dismissed the chief constable from office.

⇒ It was held that the dismissal was unlawful because the claimant was not provided with an oral hearing to faces the specific charges made against him by the committee overseeing police appointments.

⇒ Liverpool councillors failed to confirm the rates (council tax) for the year 1985-86 on time, and the auditor, acting under statutory authority, sought to make good the loss by holding the councillors jointly and severally liable. The councillors contended that the request was unlawful, because they did not have the opportunity to put forward their case (oral hearing).

⇒ It was held that no oral hearing was required in the circumstances; the auditor’s request was lawful and valid.

⇒ Why is the outcome different to Ridge v Baldwin?

• Ridge concerned a dismissal from public office;
• The councillors in this case did not ask for an oral hearing when they had the opportunity to do so.

⇒ “…what the requirements of fairness demand… depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates” (per Lord Bridge)

⇒ Two prisoners were released on licence having served roughly half of their sentences, but were recalled to prison upon breaching the terms of the licences. The Parole Board rejected a request to conduct an oral hearing.

⇒ It was held that an oral hearing would be required, because the decision deprives the claimants of their liberty.

⇒ Three separate planning decisions were all ‘called in’ by the Secretary of State for the Environment.The claimants argued that the Secretary of State was not an independent and impartial tribunal.

⇒ The High Court agreed with claimants, and a s.4 HRA declaration of incompatibility was issued

⇒ The House of Lords, however, allowed the Secretary of State’s appeal.

• So this decision is one of administrative policy affecting civil rights, thus requiring an independent and impartial tribunal.
• Although the Secretary of State is not an independent or impartial tribunal, her decision is judicially reviewable on conventional grounds.
• The availability of judicial review, therefore, guarantees the Article 6 ECHR rights.

⇒ Following the outbreak of foot and mouth disease in 2001, a number of inquiries were set up to asses the Government’s response. The Lessons Learnt Inquiry heard much of its proceedings in private, as the Secretary of State intended in its terms of reference. The claimant sought judicial review of the decision to hear evidence in private

⇒ It was held that there was no absolute legal rule or presumption that inquiries should be heard in public; in this particular case, the decision to hold a public or private inquiry (or any inquiry at all!) was a political decision of the Secretary of State.

⇒ A decision was made to hold the inquiry into Harold Shipman to be conducted in private. Judicial Review was sought on the rationality of the Secretary of State’s decision to conduct the inquiry in private.

⇒ The decision of the Secretary of State was quashed; there was a pressing social need for a public hearing and there would be widespread loss of confidence in the NHS if covered up.

⇒ The extent to which one has a right to a fair hearing depends on a range of factors: the rights of the claimant, the importance of publicity and accountability, the context of the decision-making.

⇒ There is no ‘right’ to a fair hearing for civil (as opposed to criminal) matters, except insofar as the courts recognise such a right as a matter of fairness, or where the ECHR requires a fair hearing.

• But the use of Article 6 ECHR is limited in the administrative field, and particularly so following Alconbury.
• The effect of Alconbury is to say that judicial review of administrative discretion is adequate in protecting Article 6 rights.
• It is as if Article 6 entrenches judicial review as a human right!

⇒ Impartiality in decision-making is vital for good governance.

⇒ Bias is concerned with the (unlawful) propensity to favour one interest or party over another.

⇒ Where bias is present, or sometimes where bias is perceived to be present, the decision-maker is disqualified from making the decision (where the decision has not yet been made), or the decision is quashed (where it has been made).

⇒ Judicial review is available in respect of bias decisions made by bodies with statutory or prerogative jurisdiction: this includes the lower courts

⇒ But because judicial bias might be present in the senior courts (inherent jurisdiction), the courts have developed their own version of judicial review of any court decision presenting questions of bias.

⇒ A dispute over land was brought before the courts of equity. The matter was heard by the Vice-Chancellor who awarded the case in favour of a public company. An appeal was heard by the Lord Chancellor, who dismissed the appeal - thus affirming the original award. It transpired that the Lord Chancellor held shares worth several thousand pounds in the company benefitting from the decision

⇒ At the House of Lords, the Lord Chancellor was automatically disqualified because of his pecuniary (financial) interest in the proceedings.

• His decree was ‘voidable’ and is thus reversed i.e. the case had to be heard on appeal again

⇒ Lord Hoffmann held an unpaid position as chairman of Amnesty International’s fundraising arm. Amnesty were an intervening party to proceedings relating to the extradition of the former Chilean dictator, General Pinochet.

⇒ The House of Lords, in this case, set aside Pinochet No. 1 due to the possibility of bias from Lord Hoffman

• Prior to Pinochet No.2 it was thought that judges were disqualified from hearing a case where they had a pecuniary interest in its outcome.
• But the House of Lords seemed willing to extend the concept of automatic disqualification to a much greater set of interests or inferences.
• The point here is that the question of bias is not always one of actual bias (which can be hard to prove), but the appearance of bias (or more simply, ‘apparent bias’).
• This, in turn, guarantees that justice is seen to be done; inspiring confidence in the judiciary

⇒ Five cases were appealed to the Court of Appeal – each of them presenting different interests held by judges in a range of legal proceedings

⇒ In the first and second case, the judge (a solicitor sitting as a deputy in the High Court) became aware that his firm was acting for the client in separate proceedings; the judge disclosed the interest and no objections were raised

⇒ In a third case, the judge disclosed his membership of an organisation representing claimants’ interests in personal injury litigation during a case involving personal injury claims. He failed to disclose his publications or writings on the subject of claimants in personal injury

⇒ In a fourth case, the judge had been previously employed for a short period by the defendant employer in an employment hearing.

⇒ In a fifth case, the judge owned shares in a property holding company who let premises to the claimant seeking judicial review of a licensing decision (bookmakers)

• Cases 1 & 2: no real danger of bias.
• Case 3: real danger of bias - the ‘intemperate terms’ of the judge in his publications.
• Case 4: no real danger of bias.
• Case 5: the pecuniary interest was nominal and indirect so automatic disqualification did not apply; no real danger of bias.

⇒ Principles:

• Pecuniary interest leads to automatic disqualification except where minimal or indirect, or where claimant waives right to object upon full disclosure.
• Otherwise the test is whether there is a real danger of bias, as viewed from the reasonable man with knowledge of the relevant circumstances.
• Judges should routinely recuse themselves at the earliest opportunity where they are disqualified from hearing a case.

⇒ Juror was the next-door neighbour of the defendant’s brother. After conviction and sentencing, this became known and formed the basis of an appeal on the grounds of jury bias.

⇒ The Court of Appeal applied the test of whether there was a “real danger of bias,” and found that there was not. The House of Lords agreed, and confirmed the test.

⇒ A lay judge of a tribunal applied for a job with an organisation subject to the proceedings.

⇒ Court applied test of “real danger of bias” and concluded there was none, because the judge undertook not to accept any job with the company for at least two years.

⇒ On appeal, this decision was reversed

• The court, being led by the requirements of Article 6 ECHR as interpreted in the case law of the ECtHR, deduced a new or modified formula…
• Would it lead the “fair-minded and informed observer” to conclude there was a “real possibility of bias”?

⇒ This case sets out the leading test for bias:

• The House of Lords adopted the test of whether “the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased.”

⇒ The test in Porter v Magill (fair-minded and informed observer…) is the leading test for bias.

⇒ However, automatic disqualification takes place in judicial decision-making for pecuniary and sometimes other interests (Dimes, ex parte Pinochet No.2).

⇒ Locabail confirms what we know, but also contributes certain other rules such as:

• An obligation to recuse yourself in cases of automatic disqualification;
• The discretion of the claimant to ‘waive’ their right to object to apparent bias.
• The need to consider the reasonable man in determining whether there is a danger of bias (now replaced by Porter v Magill)