Natural justice - AbsoluteAstronomy.com

Natural justice is a term of art

Technical terminology

Technical terminology is the specialized vocabulary of any field, not just technical fields. The same is true of the synonyms technical terms, terms of art, shop talk and words of art, which do not necessarily refer to technology or art...

that denotes specific procedural rights in the English legal system

English law

English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly". What is required to fulfil this duty depends on the context in which the matter arises.

There are two rules that natural justice is concerned with. These are the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem
Audi alteram partem
Audi alteram partem is a Latin phrase that literally means "hear the other side" or "hear the alternative party"...

).

The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult to prove in practice while imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias. Cases from different jurisdictions currently apply two tests for apparent bias: the "reasonable suspicion of bias" test and the "real likelihood of bias" test. One view that has been taken is that the differences between these two tests are largely semantic and that they operate similarly.

The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe, the right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights, which is said to complement the common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

rather than replace it.

Background

Natural justice is a term of art

Technical terminology

that denotes specific procedural rights in the English legal system

English law

English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

and the systems of other nations based on it. It is similar to the American concepts of fair procedure

Fair procedure

Fair procedure is a common law doctrine that arises from a line of groundbreaking decisions of the Supreme Court of California dating back to the 1880s...

and procedural due process

Due process

Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

, the latter having roots that to some degree parallel the origins of natural justice.

Although natural justice has an impressive ancestry and is said to express the close relationship between the common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

and moral principles, the use of the term today is not to be confused with the "natural law

Natural law

Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

" of the Canonists

Canon law

Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...

, the mediaeval philosophers' visions of an "ideal pattern of society" or the "natural rights" philosophy of the 18th century. Whilst the term natural justice is often retained as a general concept, in jurisdictions such as Australia and the United Kingdom it has largely been replaced and extended by the more general "duty to act fairly". Natural justice is identified with the two constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or "no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem
Audi alteram partem
Audi alteram partem is a Latin phrase that literally means "hear the other side" or "hear the alternative party"...

, or "hear the other side").

The requirements of natural justice or a duty to act fairly depend on the context. In Baker v. Canada (Minister of Citizenship and Immigration)
Baker v. Canada (Minister of Citizenship and Immigration)
Baker v. Canada , [1999] 2 S.C.R. 817 is a leading Canadian administrative law decision of the Supreme Court of Canada. The Court provided guidance on the standard of judicial review of administrative decisions...

(1999), the Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the person challenging it, the person's legitimate expectation

Legitimate expectation

In English law, the concept of legitimate expectation arises from administrative law, a branch of public law. In proceedings for judicial review, it applies the principles of fairness and reasonableness to the situation where a person has an expectation or interest in a public body retaining a...

s, and the choice of procedure made by the decision-maker. Earlier, in Knight v. Indian Head School Division No. 19
Knight v. Indian Head School Division No. 19
Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 is a leading decision of the Supreme Court of Canada on procedural fairness in Canadian administrative law...

(1990), the Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out acts of a more administrative and specific nature do. Furthermore, preliminary decisions will generally not trigger the duty to act fairly, but decisions of a more final nature may have such an effect. In addition, whether a duty to act fairly applies depends on the relationship between the public authority and the individual. No duty exists where the relationship is one of master and servant, or where the individual holds office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the individual cannot be removed from office except for cause. Finally, a right to procedural fairness only exists when an authority's decision is significant and has an important impact on the individual.

In general

A person is barred from deciding any case in which he or she may be, or may fairly be suspected to be, biased. This principle embodies the basic concept of impartiality, and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially. A public authority has a duty to act judicially whenever it makes decisions that affect people's rights or interests, and not only when it applies some judicial-type procedure in arriving at decisions.

The basis on which impartiality operates is the need to maintain public confidence in the legal system. The erosion of public confidence undermines the nobility of the legal system, and leads to ensuing chaos. The essence of the need for impartiality was observed by Lord Denning

Alfred Denning, Baron Denning

Alfred Thompson "Tom" Denning, Baron Denning, OM, PC, DL, KC , commonly known as Lord Denning, was a British soldier, mathematician, lawyer and judge. He gained degrees in mathematics and law at Oxford University, although his studies were disrupted by his service in the First World War...

, the Master of the Rolls

Master of the Rolls

The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...

, in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968): "Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'"

Public confidence as the basis for the rule against bias is also embodied in the often-quoted words of Lord Hewart

Gordon Hewart, 1st Viscount Hewart

Gordon Hewart, 1st Viscount Hewart, PC was a politician and judge in the United Kingdom.-Background and education:...

, the Lord Chief Justice of England and Wales

Lord Chief Justice of England and Wales

The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...

, that "[i]t is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly be seen to be done".

Actual and imputed bias

Bias may be actual, imputed or apparent. Actual bias is established where it is actually established that a decision-maker was prejudiced in favour of or against a party. However, in practice, the making of such an allegation is rare as it is very hard to prove.

One form of imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary or proprietary interest in the outcome of the decision. Once this fact has been established, the bias is irrebuttable and disqualification is automatic – the decision-maker will be barred from adjudicating the matter without the need for any investigation into the likelihood or suspicion of bias. A classic case is Dimes v. Grand Junction Canal Proprietors
Dimes v Grand Junction Canal
Dimes v Grand Junction Canal was a case heard by the House of Lords.The case covers the point that "Judges must not appear to be biased or impartial". Lord Cottenham, the judge who sat over a previous case in which canal company that brought a case in equity against a landowner. Lord Cottenham was...

(1852), which involved an action between Dimes, a local landowner, and the proprietors of the Grand Junction Canal

Grand Junction Canal

The Grand Junction Canal is a canal in England from Braunston in Northamptonshire to the River Thames at Brentford, with a number of branches. The mainline was built between 1793 and 1805, to improve the route from the Midlands to London, by-passing the upper reaches of the River Thames near Oxford...

, in which the Lord Chancellor

Lord Chancellor

The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...

, Lord Cottenham

Charles Pepys, 1st Earl of Cottenham

Charles Christopher Pepys, 1st Earl of Cottenham PC KC was a British lawyer, judge and politician. He was twice Lord Chancellor of Great Britain.-Background and education:...

, had affirmed decrees made to the proprietors. However, it was discovered by Dimes that Lord Cottenham in fact owned several pounds worth of shares in the Grand Junction Canal. This eventually led to the judge being disqualified from deciding the case. There was no inquiry as to whether a reasonable person would consider Lord Cottenham to be biased, or as to the circumstances which led Lord Cottenham to hear the case.

In certain limited situations, bias can also be imputed when the decision-maker's interest in the decision is not pecuniary but personal. This was established in the unprecedented case of R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) (1999). In an appeal to the House of Lords

Judicial functions of the House of Lords

The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...

, the Crown Prosecution Service

Crown Prosecution Service

The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...

sought to overturn a quashing order

Certiorari

Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...

made by the Divisional Court regarding extradition

Extradition

Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...

warrants

Warrant (law)

Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...

made against the ex-Chilean dictator, Senator Augusto Pinochet

Augusto Pinochet

Augusto José Ramón Pinochet Ugarte, more commonly known as Augusto Pinochet , was a Chilean army general and dictator who assumed power in a coup d'état on 11 September 1973...

. Amnesty International

Amnesty International

Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...

(AI) was given leave to intervene in the proceedings. However, one of the judges of the case, Lord Hoffmann

Leonard Hoffmann, Baron Hoffmann

Leonard Hubert "Lenny" Hoffmann, Baron Hoffmann, PC is a retired senior British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009...

, was a director and chairperson of Amnesty International Charity Ltd. (AICL), a company under the control of AI. He was eventually disqualified from the case and the outcome of the proceedings set aside. The House of Lords held that the close connection between AICL and AI presented Lord Hoffmann with an interest in the outcome of the litigation. Even though it was non-pecuniary, the Law Lords took the view that the interest was sufficient to warrant Lord Hoffmann's automatic disqualification from hearing the case. In Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. (1999), the Court of Appeal

Court of Appeal of England and Wales

The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...

warned against any further extension of the automatic disqualification rule, "unless plainly required to give effect to the important underlying principles upon which the rule is based".

Apparent bias

Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its outcome, but through his or her conduct or behaviour gives rise to a suspicion that he or she is not impartial. An issue that has arisen is the degree of suspicion which would provide the grounds on which a decision should be set aside for apparent bias. Currently, cases from various jurisdictions apply two different tests: "real likelihood of bias" and "reasonable suspicion of bias".

The real likelihood test centres on whether the facts, as assessed by the court, give rise to a real likelihood of bias. In R. v. Gough (1993), the House of Lords chose to state the test in terms of a "real danger of bias", and emphasized that the test was concerned with the possibility, not probability, of bias. Lord Goff of Chievely

Robert Goff, Baron Goff of Chieveley

Robert Lionel Archibald Goff, Baron Goff of Chieveley PC DCL FBA is a retired British Judge.Lord Goff, High Steward of the University of Oxford, retired in 1998 as Senior Law Lord after more than a decade as a Lord of Appeal in Ordinary in the House of Lords...

also stated that "the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man". However, the test in Gough has been disapproved of in some Commonwealth jurisdictions. One criticism is that the emphasis on the court's view of the facts gives insufficient emphasis to the perception of the public. These criticisms were addressed by the House of Lords in Porter v. Magill
Porter v Magill
Porter v Magill [2002] 2 AC 357 was a House of Lords case which arose out of the Homes for votes scandal involving Dame Shirley Porter.-Background:...

(2001). The Court adjusted the Gough test by stating it to be "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". This case therefore established the current test in the UK to be one of a "real possibility of bias".

On the other hand, the reasonable suspicion test asks whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible. Although not currently adopted in the UK, this test has been endorsed by the Singapore courts

Judicial system of Singapore

The full Judicial power in Singapore is vested in the Supreme Court as well as subordinate courts by the Constitution of Singapore. The Supreme Court consists of the Court of Appeal and the High Court. The Court of Appeal exercises appellate criminal and civil jurisdiction, while the High Court...

.

It has been suggested that the differences between the two tests are largely semantic and that the two tests operate similarly. In Locabail, the judges stated that in a large proportion of the cases, application of the two tests would lead to the same outcome. It was also held that "[p]rovided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, and without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well-informed members of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done". In the Singapore High Court

High Court of Singapore

The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...

decision Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005), Judge of Appeal Andrew Phang

Andrew Phang

Judge of Appeal Andrew Phang Boon Leong is a Judge of the Supreme Court of Singapore.Born in Singapore in 1957, he received his LL.B. from the University of Singapore in 1982, before earning his LL.M. and S.J.D. from Harvard University in 1984 and 1988 respectively...

observed that the real likelihood test is in reality similar to that of reasonable suspicion. First, likelihood is in fact "possibility", as opposed to the higher standard of proof centring on "probability". Secondly, he suggested that real in real likelihood cannot be taken to mean "actual", as this test relates to apparent and not actual bias. He also observed that both the court's and the public's perspectives are "integral parts of a holistic process" with no need to draw a sharp distinction between them.

In contrast, in Re Shankar Alan s/o Anat Kulkarni (2006), Judicial Commissioner

Judicial Commissioner

A Judicial Commissioner in Singapore is appointed to the Supreme Court by the President of Singapore on the advice of the Prime Minister, and has the powers of a Judge. A person may be appointed a Judicial Commissioner if he/she has been a "qualified person" within the meaning of section 2 of the...

Sundaresh Menon

Sundaresh Menon SC is Singapore's Attorney-General. He was sworn in on 1 Oct 2010. Menon graduated with first class honours from the law faculty of the National University of Singapore in 1986 and later obtained his LL.M. from Harvard University. He was appointed Senior Counsel in 2008. He served a...

thought that there was a real difference between the reasonable suspicion and real likelihood tests. In his opinion, suspicion suggests a belief that something that may not be provable could still be possible. Reasonable suggests that the belief cannot be fanciful. Here the issue is whether it is reasonable for the one to harbour the suspicions in the circumstances even though the suspicious behaviour could be innocent. On the other hand, likelihood points towards something being likely, and real suggests that this must be substantial rather than imagined. Here, then, the inquiry is directed more towards the actor than the observer. The issue is the degree to which a particular event is not likely or possible. Menon J.C. also disagreed with both Lord Goff in Gough and Phang J.C. in Tang Kin Hwa in that he thought the shift of the inquiry from how the matter might appear to a reasonable man to whether the judge thinks there is a sufficient possibility of bias was "a very significant point of departure". The real likelihood test is met as long as the court is satisfied that there is a sufficient degree of possibility of bias. Although this a lower standard than satisfaction on a balance of probabilities, this is actually directed at mitigating the sheer difficulty of proving actual bias, especially given its insidious and often subconscious nature. The reasonable suspicion test, however, is met if the court is satisfied that a reasonable member of the public could harbour a reasonable suspicion of bias even though the court itself thought there was no real danger of this on the facts. The difference is that the driver behind this test is the strong public interest in ensuring public confidence in the administration of justice. As of September 2011, the Court of Appeal of Singapore

Court of Appeal of Singapore

The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...

had not yet expressed a view as to whether the position taken in Tang Kin Hwa or Shankar Alan is preferable.

Necessity

There are cases in which a disqualified adjudicator cannot be replaced, as no one else is authorized to act. It has been observed that "disqualification of an adjudicator will not be permitted to destroy the only tribunal with power to act". In such cases, natural justice has to give way to necessity in order to maintain the integrity of judicial and administrative systems.

This issue regarding necessity was raised in Dimes. The Lord Chancellor had to sign an order for enrolment in order to allow the appeal to proceed from the Vice-Chancellor

Chancellor of the High Court

The Chancellor of the High Court is the head of the Chancery Division of the High Court of Justice of England and Wales. Before October 2005, when certain provisions of the Constitutional Reform Act 2005 took effect, the office was known as the Vice-Chancellor...

to the House of Lords. It was held that his shareholding in the canal company which barred him from sitting in the appeal did not affect his power to enroll, as no one but him had the authority to do so. It was mentioned this was allowed "for this [was] a case of necessity, and where that occurs the objection of interest cannot prevail".

Waiver

The court normally requests that an objection be taken as soon as the prejudiced party has knowledge of the bias. If an objection is not raised and proceedings are allowed to continue without disapproval, it will be held that the party has waived its right to do so.

Effect of a finding of bias

In Dimes, the judges advised the House of Lords that Lord Cottenham's pecuniary interest made his judgment not void

Void (law)

In law, void means of no legal effect. An action, document or transaction which is void is of no legal effect whatsoever: an absolute nullity - the law treats it as if it had never existed or happened....

, but voidable

Voidable

In law, a transaction or action which is voidable is valid, but may be annulled by one of the parties to the transaction. Voidable is usually used in distinction to void ab initio and unenforceable....

. This advice is not wrong in the context of a judicial act under review, where the judgment will be held valid unless reversed on appeal.

However, in the cases of administrative acts or decisions under judicial review, the court can only intervene on the grounds of ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...

, hence making the judgment void. Lord Esher said in Allison v. General Council of Medical Education and Registration (1894) that the participation of a disqualified person "certainly rendered the decision wholly void".

In general

It has been suggested that the rule requiring a fair hearing is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. However, the rules are often treated separately. It is fundamental to fair procedure that both sides should be heard. The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to answer them, and the opportunity to present their own cases.

Besides promoting an individual's liberties, the right to a fair hearing has also been used by courts as a base on which to build up fair administrative procedures. It is now well established that it is not the character of the public authority that matters but the character of the power exercised. However, in the United Kingdom prior to Ridge v. Baldwin
Ridge v Baldwin
Ridge v Baldwin [1964] AC 40 was a British legal case heard by the House of Lords. The judges hearing the case extended the doctrine of natural justice into the realm of administrative decision making...

(1963), the scope of the right to a fair hearing was severely restricted by case law following Cooper v. Wandsworth Board of Works (1863). In R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. (1923), Lord Atkin

James Atkin, Baron Atkin

James Richard Atkin, Baron Atkin was a lawyer and judge of Australian-Welsh origin, who practised in England and Wales...

observed that the right only applied where decision-makers had "the duty to act judicially". In natural justice cases this dictum
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...

was generally understood to mean that a duty to act judicially was not to be inferred merely from the impact of a decision on the rights of subjects; such a duty would arise only if there was a "superadded" express obligation to follow a judicial-type procedure in arriving at the decision.

In Ridge v. Baldwin, Lord Reid

James Reid, Baron Reid

James Scott Cumberland Reid, Baron Reid, CH, KC FRSE was a Scottish Unionist politician and judge. His reputation is as one of the most outstanding judges of the 20th century....

reviewed the authorities extensively and attacked the problem at its root by demonstrating how the term judicial had been misinterpreted as requiring some additional characteristic over and above the characteristic that the power affected some person's rights. In his view, the mere fact that the power affects rights or interests is what makes it "judicial" and so subject to the procedures required by natural justice. This removal of the earlier misconception as to the meaning of judicial is thought to have given the judiciary the flexibility it needed to intervene in cases of judicial review.

The mere fact that a decision-maker is conferred wide discretion by law is not reason enough for a weakening of the requirements of natural justice. In the United Kingdom context, this is demonstrated by Ahmed v. H.M. Treasury (No. 1) (2010). The Treasury

HM Treasury

HM Treasury, in full Her Majesty's Treasury, informally The Treasury, is the United Kingdom government department responsible for developing and executing the British government's public finance policy and economic policy...

had exercised powers to freeze the appellants' financial assets and economic resources on the ground that it reasonably suspected the appellants were or might be persons who had committed, attempted to commit, participated in or facilitated the commission of terrorism, pursuant to the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006 made under the United Nations Act 1946

United Nations Act 1946

The United Nations Act 1946 was passed by the Parliament of the United Kingdom as a means of putting the job of implementing the resolutions of the United Nations Security Council in the hands of the government rather than Parliament...

. The Supreme Court of the United Kingdom

Supreme Court of the United Kingdom

The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

held that since the Al-Qaida Order made no provision for basic procedural fairness, it effectively deprived people designated under the order the fundamental right of access to a judicial remedy and hence was ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...

the power conferred by the United Nations Act 1946 for the making of the Order.

Article 6 of the European Convention

The right to a fair hearing is also referred to in Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, which states:
Article 6 does not, however, replace the common law duty to ensure a fair hearing. It has been suggested that Article 6 alone is not enough to protect procedural due process, and only with the development of a more sophisticated common law will the protection of procedural due process extend further into the administrative machine. Nonetheless, Article 6 supplements the common law. For example, the common law does not impose a general duty to give reasons for a decision, but under Article 6(1) a decision-maker must give a reasoned judgment so as to enable an affected individual to decide whether to appeal.

Prior notice of hearing

Natural justice allows a person to claim the right to adequate notification of the date, time, place of the hearing as well as detailed notification of the case to be met. This information allows the person adequate time to effectively prepare his or her own case and to answer the case against him or her. In Cooper v. Wandsworth, Chief Justice

Chief Justice of the Common Pleas

The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...

William Erle

Sir William Erle PC QC FRS was an English lawyer, judge and Whig politician.-Early career:Born at Fifehead Magdalen, Dorset, William was the son of the Rev. Christopher Erle of Gillingham, Dorset and Margaret née Bowles, a relative of the poet William Lisle Bowles. His younger brother Peter Erle...

went so far as to state that the lack of notice and hearing afforded to Cooper could be said to be a form of abuse, as he had been treated as if he did not matter. As Lord Mustill

Michael Mustill, Baron Mustill

Michael John Mustill, Baron Mustill PC is a British judge and barrister.The son of Clement William and Marion Mustill was educated in Oundle School and St John's College, Cambridge, where he graduated with a Doctor of Laws in 1992...

famously held in R. v. Secretary of State for the Home Department, ex parte Doody
R v Secretary of State for the Home Department Ex p Doody
R v Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531 was an important English public law case concerning applications for judicial review made by four prisoners serving mandatory life sentences-External links:*...

(1993): "Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

It has been suggested that the requirement of prior notice serves three important purposes:

The interest in good outcomes – giving prior notice increases the value of the proceedings as it is only when the interested person knows the issues and the relevant information that he or she can make a useful contribution.
The duty of respect – the affected person has the right to know what is at stake, and it is not enough to simply inform him or her that there will be a hearing.
The rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

– notice of issues and disclosure of information opens up the operations of the public authority to public scrutiny.

The British courts have held it is not enough for an affected person to merely be informed of a hearing. He or she must also be told what is at stake; in other words, the gist of the case.

Opportunity to be heard

Every person has the right to have a hearing and be allowed to present his or her own case. Should a person not attend the hearing, even with adequate notice given, the adjudicator has the discretion to decide if the hearing should proceed. In Ridge v. Baldwin, a chief constable

Chief Constable

Chief constable is the rank used by the chief police officer of every territorial police force in the United Kingdom except for the City of London Police and the Metropolitan Police, as well as the chief officers of the three 'special' national police forces, the British Transport Police, Ministry...

succeeded in having his dismissal from service declared void as he had not been given the opportunity to make a defence. In another case, Chief Constable of the North Wales Police v. Evans (1982), a chief constable required a police probationer to resign on account of allegations about his private life which he was given no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful. Likewise in Surinder Singh Kanda v. Government of the Federation of Malaya
Surinder Singh Kanda v. The Government of the Federation of Malaya
Surinder Singh Kanda v. The Government of the Federation of Malaya 28 MLJ 169.- Background :Officer Surinder Singh Kanda " was supplied with a report of the board of inquiry. The question arose whether the hearing by adjudicating officer was vitiated by Insp...

(1962), a public servant facing disciplinary proceedings was not supplied with a copy of a prejudicial report by a board of inquiry which the adjudicating officer had access to before the hearing. The Privy Council

Judicial Committee of the Privy Council

The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

held that the proceedings had failed to provide him a reasonable opportunity of being heard.

However, this requirement does not necessarily mean the decision-maker has to meet the complainant face to face – "Natural justice does not generally demand orality". It has been suggested that an oral hearing will almost be as good as useless if the affected person has no prior knowledge of the case. In Lloyd v. McMahon (1987), an oral hearing did not make a difference to the facts on which the case was based. Giving judgment in the Court of Appeal of England and Wales, Lord Justice

Lord Justice of Appeal

A Lord Justice of Appeal is an ordinary judge of the Court of Appeal of England and Wales, the court that hears appeals from the High Court of Justice, and represents the second highest level of judge in the courts of England and Wales-Appointment:...

Harry Woolf

Harry Woolf, Baron Woolf

Harry Kenneth Woolf, Baron Woolf, PC, FBA, , born 2 May 1933, was Master of the Rolls from 1996 until 2000 and Lord Chief Justice of England and Wales from 2000 until 2005. The Constitutional Reform Act 2005 made him the first Lord Chief Justice to be President of the Courts of England and Wales...

held that an oral hearing may not always be the "very pith of the administration of natural justice". It has also been suggested that an oral hearing is only required if issues concerning deprivations of legal rights or legally protected interests arise.

Conduct of the hearing

When deciding how the hearing should be conducted, the adjudicator has to ask whether the person charged has a proper opportunity to consider, challenge or contradict any evidence, and whether the person is also fully aware of the nature of the allegations against him or her so as to have a proper opportunity to present his or her own case. In Secretary of State for the Home Department v. AF (2009), Lord Phillips of Worth Matravers

Nicholas Phillips, Baron Phillips of Worth Matravers

Nicholas Addison Phillips, Baron Phillips of Worth Matravers, KG PC is the President of the Supreme Court of the United Kingdom. Before 1 October 2009 his title was Senior Lord of Appeal in Ordinary. He was Master of the Rolls from 2000 to 2005 and Lord Chief Justice of England and Wales from 2005...

said:
However, when a hearing requires the balancing of multiple polycentric

Polycentricity

Polycentricity is a concept in Canadian administrative law. According to the Supreme Court of Canada in Pushpanathan v. Canada, "a polycentric issue is one which involves a large number of interlocking and interacting interests and considerations."...

issues such as natural justice and the protection of confidential information for national security reasons, both the concerns of public security and the right to a fair trial must be adequately met. It was held by the House of Lords in AF, applying the decision of the Grand Chamber of the European Court of Human Rights

European Court of Human Rights

The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

A. v. United Kingdom (2009), that a person accused of terrorism against whom a control order

Control order

A control order is an order made by the Home Secretary of the United Kingdom to restrict an individual's liberty for the purpose of "protecting members of the public from a risk of terrorism". Its definition and power were provided by Parliament in the Prevention of Terrorism Act 2005...

has been issued must be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate

Special advocate

In the United Kingdom a Special Advocate is a lawyer usually a barrister or advocate, sometimes a solicitor, who has special rights of audience in accessing evidence that is otherwise restricted due to national security concerns...

. If this requirement is satisfied, a fair hearing can be conducted without detailed disclosure of confidential information that might compromise national security. On the facts of the case, a special advocate was not permitted further contact with an applicant or his ordinary legal representatives except with permission of the Special Immigration Appeals Commission

Special Immigration Appeals Commission

The Special Immigration Appeals Commission is a superior court of record in the United Kingdom established by the Special Immigration Appeals Commission Act 1997 that deals with appeals from persons deported by the Home Secretary under various statutory powers, and usually related to matters of...

(SIAC) after viewing confidential (or "closed") materials. The House of Lords recognized that although a special advocate's usefulness is stymied somewhat from having no further instructions after viewing such materials, if the SIAC decides to issue a control order predominantly on the basis of non-confidential (or "open") materials, an applicant cannot be regarded as having been denied an opportunity to challenge the reasonableness of the government's beliefs and suspicions about him. If the evidence against the applicant is largely closed but allegations contained in open material are sufficiently specific, an applicant should be able to provide his legal representatives and special advocate with information to refute it (such as an alibi

Alibi

Alibi is a 1929 American crime film directed by Roland West. The screenplay was written by West and C. Gardner Sullivan, who adapted the 1927 Broadway stage play, Nightstick, written by Elaine Sterne Carrington, J.C...

, if the open material alleges he was at a certain place during a certain period) without having to know the detail or sources of the closed evidence. However, if the evidence revealed to the person consists only of general assertions and the case against him is based solely or to a substantive extent on undisclosed adverse evidence, the fair hearing rule under natural justice will not be satisfied.

In such cases, there are strong policy considerations supporting the principle that a trial procedure can never be considered fair if a person is kept in ignorance of the case against him or her. First, since the grounds for a reasonable suspicion that a person is involved in terrorist activity can span from incontrovertible evidence to an innocent misinterpretation of facts which can be explained away by the person, in many cases it is impossible for courts to be sure that the disclosure of the evidence will make no difference to the applicant. Secondly, resentment will be felt by the person and his family and friends if sanctions are imposed without any proper explanation of the grounds and when, due to the non-disclosure of information, the person is put in a position where he is unable to properly defend himself. As Lord Phillips put it, "if the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust".

The right to be heard in answer to charges before an unbiased tribunal is illustrated in the Singapore case Tan Boon Chee David v. Medical Council of Singapore (1980). During a disciplinary hearing, council members were either not conscientious about their attendance or did not attend the whole course of proceedings. This meant they did not hear all the oral evidence and submissions. The High Court held that this had substantially prejudiced the appellant and constituted a fundamental breach of natural justice. On the other hand, mere absence from a hearing does not necessarily lead to undue prejudice. It was held in Re Teo Choo Hong (1995) that the function of a lay member of a lawyers' disciplinary committee was to observe and not cast a vote or make a judgment. Thus, the appellant had not suffered undue prejudice.

On the basis of reciprocity, if one side is allowed to cross-examine his legal opponent at a hearing, the other party must also be given the same opportunity. In addition, when a tribunal decides a case on a basis not raised or contemplated by the parties, or decides it without regarding the submissions and arguments made by the parties on the issues, this will amount to a breach of natural justice. However, a genuine bona fide mistake by an adjudicator in omitting to state reasons for not considering a submission is not enough to be a breach of natural justice. This may occur when the submissions were accidentally omitted, or were so unconvincing that it was not necessary to explicitly state the adjudicator's findings.

Right to legal representation

There is no inherent common law right to legal representation before a domestic tribunal. A tribunal has the discretion to admit either a legally qualified or unqualified counsel to assist the person appearing before it, based on the facts of the case. When assessing whether a party should be offered legal assistance, the adjudicator should first ask whether the right to be heard applies, and, secondly, whether counsel's assistance is needed for an effective hearing given the subject matter, bearing in mind the consequences of such a denial.

In R. v. Secretary of State for Home Department, ex parte Tarrant (1983), Webster J. set out six factors to be considered when deciding whether to allow representation by counsel, namely:

the seriousness of the charge and the potential penalty;
whether any points of law are likely to arise.;
whether the prisoner is capable of presenting his own case;
whether they are any procedural difficulties faced by prisoners in conducting their own defence;
whether there is reasonable speed in making the adjudication; and
whether there is a need for fairness between prisoners or between prisoners and prison officers.

It has also been suggested that where a tribunal hearing concerns the individual's reputation or right to livelihood, there is a greater need for allowing legal representation as this vindicates the idea of equality before the law

Equality before the law

Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....

.

When one refuses legal representation, one cannot expect to receive a higher "standard" of natural justice. This was enunciated in Singapore in Ho Paul v. Singapore Medical Council (2008). Dr. Ho, who had been charged with professional misconduct, chose to appear before the Council in person and declined to cross-examine the Council's key witness. Subsequently, he argued that he should have been warned of the legal implications of not being legally represented. The High Court rejected this argument and held he had suffered no prejudice. Dr. Ho had been given a fair opportunity of presenting his own case and, most importantly, had not been deprived of his right to cross-examine the witnesses.

It is also not a court's obligation to provide assistance when a party presents his or her case without legal representation. In Rajeevan Edakalavan v. Public Prosecutor (1998), the accused had appeared in person before a magistrate and had entered a plea

Plea

In legal terms, a plea is simply an answer to a claim made by someone in a civil or criminal case under common law using the adversary system. Colloquially, a plea has come to mean the assertion by a criminal defendant at arraignment, or otherwise in response to a criminal charge, whether that...

of guilt. He later petitioned the High Court for criminal revision, arguing that as the magistrate had not informed him of the defences

Defense (legal)

In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...

available to him, his plea had been equivocal. The Court held:
In Singapore, the right to legal representation is contingent on the nature of the inquiry. However, since Article 12

Article 12 of the Constitution of Singapore

Article 12 of the Constitution of the Republic of Singapore guarantees to all persons equality before the law and equal protection of the law. The Article also identifies four forbidden classifications – religion, race, descent and place of birth – upon which Singapore citizens may not be...

of the Constitution of Singapore

Constitution of Singapore

The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...

guarantees equal protection under the law, it has been suggested that greater weightage should be accorded to this procedural right when balancing it against the competing demand of efficiency.

The decision and reasons for it

Currently, the principles of natural justice in the United Kingdom and certain other jurisdictions do not include a general rule that reasons should be given for decisions. In R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw (1951), Denning

Alfred Denning, Baron Denning

L.J. stated: "I think the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision." It has been stated that "no single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions".

Historically, uncontrolled public decisions have led to poor outcomes and disrespect for the decision-makers. Such decisions also lacked the regularity and transparency that distinguish them from the mere say-so of public authorities. On such grounds, there are obvious benefits for the disclosure of reasons for decisions. First, procedural participation by people affected by a decision promotes the rule of law by making it more difficult for the public authority to act arbitrarily. Requiring the giving of reasons helps ensure that decisions are carefully thought through, which in turn aids in the control of administrative discretion. Secondly, accountability makes it necessary for the public authority to face up to the people affected by a decision. When a public authority acts on all the relevant considerations, this increases the probability of better decision outcomes and, as such, is beneficial to public interests. Another important benefit is that respect for decision-makers is fostered, which increases their integrity in the public's eyes.

Background

In general

Actual and imputed bias

Apparent bias

Necessity

Waiver

Effect of a finding of bias

In general

Article 6 of the European Convention

Prior notice of hearing

Opportunity to be heard

Conduct of the hearing

Right to legal representation

The decision and reasons for it

See also

Cases

Books