Judicial Review
There is acceptance
by Parliament and the executive that the courts - The Administrative Court
of the High Court - can review a range of executive powers and this
includes delegated legislation. Other laws and purported decisions
of public authorities are also reviewable.
The rules of natural
justice are a key feature in judicial review proceedings, and have been
developed by the judges as part of the common law and where one or both
have not been complied with, the aggrieved person may seek judicial review
under Part 54 The Civil Procedure Rules 1998. The relief granted
will be an order
a) a mandatory
order;
b) a prohibiting
order;
c) a quashing order;
or
d) an injunction
under section 30 of the Supreme
Court Act 1981
(restraining a person from acting in any office in which he is not
entitled to act).
The overriding
objective of the Civil Procedure rules is to enable the court to “deal
with cases justly”.
The courts and the
executive met head on in M v Home Office [1993].
M was to be deported and sought judicial review of the Home Office
decision. The Home Secretary’s counsel gave the court an undertaking that
this would not happen until after the hearing of the appeal. However, M
was deported. The court ordered that M should be taken off the plane when
it stopped at Paris. The Home Secretary did not consider himself bound by
the order and M was not taken off the plane. The Home Secretary was
held in contempt of court but no punishment imposed. The "rule of law"
requires even government ministers to accept and obey the orders of the
courts. M disappeared shortly after he arrived in Zaire and has never
been heard from again.
In R v
Secretary of State for the Home Department ex p Hickey & Others (1994)
(See the Bridgewater 4 above) it was held that when the Home Secretary
received a petition from someone wishing to have his case referred back to
the Court of Appeal under s 17 of the Criminal Appeal Act 1968 and
the Home Secretary made enquiries and obtained fresh evidence, he was
required in fairness to disclose this to the petitioner. Judicial review
was granted to the applicants who included the ‘Bridgewater Three’.
Natural
justice (procedural propriety)
Natural justice
simply means to act fairly. Natural Justice has little to do with
the philosophy of Natural Law; simply it is an appeal to fairness,
justice, during judicial review proceedings.
Re HK (an
infant)
(1967)
introduced the phrase “act fairly”; it was established that all decision
makers must act fairly.
In Bushell
v Secretary of State for the Environment (1981), Lord
Diplock stated that, “the only requirement ... as to the procedure to be
followed at a local inquiry ... is that it must be fair to all those who
have an interest in the decision that will follow it”.
In Council
of Civil Service Unions v Minister for the Civil Service (1985)
(the GCHQ spy case) Lord Roskill said that natural justice might now be
laid to rest and be ‘replaced ... by a duty to act fairly’. Lord Scarman
spoke of ‘the requirement of natural justice namely the duty to act
fairly’ and observed that this applies to purely administrative acts.
Some courts talk of
the "rules" of natural justice, as opposed to a general duty to act fairly
and so it is not settled whether these are still separate. However, what
is clear is that the courts are not concerned with the merits of a claim
and will not substitute its decision for that of the decision-maker.
Usually cases are sent back to the decision-maker who will be required to
make a new decision in accordance with the recommendations of the court as
to the extent of its legal powers. Thus, the reference to a duty to act
fairly relates to process and not to the merits of a decision.
The "rules of natural justice"
Trials and hearings
must be fair, and there are two parts,
-
Audi alteram
partem
(hear the other side) written or oral
-
Nemo judex in res
sua -
the rule against bias - no man should be a judge in his own cause -
pecuniary or otherwise – if he does it gives rise to automatic
disqualification. This usually applies to civil cases, but
includes having an interest associated with one of the parties in
criminal cases Re: Pinochet [1999] HL
The right
to be heard audi alteram partem
The right to be
heard does not necessarily offer a right to legal representation. A person
should be given adequate prior notice of charges or allegations and a
reasonable opportunity to put his or her case.
In some cases, this
includes the right to call witness, to cross-examine and the right to be
given reasons for decision. These rights can be Statute or Common
Law based.
R v Bern
and Clinche (1798)
Defence must be heard must and he must know of the case against him, and
he must be allowed to state his case.
Both sides should
have a fair hearing.
In
Bradford v McLeod
[1986] HCJ (Scotland)
a magistrate was heard on a social occasion saying that striking miners
should not be given legal aid, a miner was later acquitted because the
comments gave the impression of bias.
In R v
Gough [1993] HL a juror was a neighbour of the brother
of the defendant, this gave only the appearance of bias, but as D had
received a fair trial, he had been rightly convicted.
There must be a
reasonable opportunity to test evidence.
In R v
Thames Magistrates'
Court ex parte Polemis
[1974] QBD
a Greek see captain not given time to prepare his defence to an allegation
of polluting docks with oil, he received his summons at 10.30 am the case
being heard at 4pm.
In Chief
Constable of North Wales v Evans [1982] HL the Chief
Constable dismissed a probationary constable on the basis of erroneous
rumours that he had been a “Hippy” had several dogs, and financial
difficulties, none was true, and the PC was not given the opportunity to
refute them.
In R v
Leicester JJ ex p Barrow [1991] CA in order to give
advice an assistance a “McKenzie Friend” was asked to be allowed to sit
with the defendants in a “poll-tax case”, the magistrates refused, they
should not have done so.
In Ridge v
Baldwin
(1964) HL
the watch committee sacked Ridge the chief constable of Brighton after he
had been acquitted on charges relating to corruption. On appeal, he
won because Police Regulations had set down a procedure that should be
followed also because there was a lack of natural justice; he had neither
been told of the reasons for dismissal nor given the opportunity to put
his case to the watch committee.
In Glynn v
Keele University
(1972) QBD
a student was seen sunbathing nude but he was not given a hearing at all,
instead he was sent a letter fining him £10 and was suspended.
Although the student had not suffered any injustice, he should have been
given the opportunity to test the evidence.
Curing
unfair decisions
Judicial Review does
not substitute a new decision; a new hearing is required to “cure” the
unfair one. The review will not question the decision just the
procedure, in this respect Glynn v Keele is probably
a rogue decision as it sought to deal with the decision and not what it
should, and that was to correct the procedure.
The rule
against bias - nemo judex in res sua
Lord Denning in Metropolitan Properties Ltd v
Lannon [1969] CA said,
“The reason is plain enough. Justice must be rooted in confidence: and
confidence is destroyed when right-minded people go away thinking: 'The
judge was biased'.“
The rule against
bias requires that judges and decision maker leaves aside prejudices which
was not demonstrated by the magistrate in R v Bingham Justices ex
p Jowitt (1974) QBD where a magistrate hearing a
speeding case said “My principle in such cases has always been to believe
the evidence of the police officer."
The test of apparent bias has been developed
through a succession of cases. In R v Barnsley Licensing Justices,
Ex p Barnsley and District Licensed Victuallers' Association [1960],
Devlin LJ recognised that
"Bias is or may be an unconscious thing
and a man may honestly say that he was not actually biased and did not
allow his interest to affect his mind, although, nevertheless, he may have
allowed it unconsciously to do so".
Lord Denning MR, in Metropolitan
Properties Co (FGC) Ltd v Lannon [1969] said:
"The court looks at the impression which
would be given to other people. Even if he was as impartial as could be,
nevertheless if right-minded persons would think that, in the
circumstances, there was a real likelihood of bias on his part, then he
should not sit. And if he does sit, his decision cannot stand . . . "
Where a
decision-maker has an interest with a party or witness he should stand
down. Lord Hoffman should have done just that in Re:
Pinochet [1999] HL, because he had a former interest in
Amnesty International, that he should have disclosed because the case
involved exactly the type of activity that Amnesty was engaged in
preventing.
Where there is a
pecuniary interest, the law automatically assumes bias
The rules of natural
justice require that the judge has no interest in the outcome. Judges,
magistrates and juries must not be biased, in Dimes v Grand
Junction Canal (1852) HL the judge Vice Chancellor
Cottenham held shares in the canal, which was a party to the proceedings,
and was therefore biased.
Real likelihood of
bias
In R v
Sussex Justices Ex parte McCarthy (1924) KBD a
magistrates’ clerk was acting in civil proceedings following a road
accident when the other party appeared before the magistrates on a
dangerous driving charge relating to the same incident. It was this
case where the famous phrase
“it
[… ] is of fundamental importance that justice should not only be done,
but should manifestly and undoubtedly be seen to be done.”
was used in an extempore judgement by
Lord Hewart.
During an
adjournment of the inquest concerning the sinking of "The Marchioness",
the coroner was reported as describing some of the relatives of the
deceased as "unhinged" and "mentally unwell"
which
indicated a real
possibility of unconscious bias. A new coroner was order to resume the
decision making process
R v Inner West
London Coroner ex parte Dallaglio
(1994) “The Marchioness”.
Apparent bias
Lord Goff of Chieveley, in R v Gough
[1993], formulated the test of apparent bias in terms a little
different from those now accepted, but echoed (at p 659) Devlin LJ's
observation in the Barnsley Licensing Justices case in
referring to
"the simple fact that bias is such an
insidious thing that, even though a person may in good faith believe that
he was acting impartially, his mind may unconsciously be affected by bias
. . .".
Following the decision of the Court of
Appeal in In re Medicaments and Related Classes of Goods (No 2)
[2001], the accepted test is that laid down in Porter v Magill
[2001] HL, para 103:
"whether the fair-minded and informed
observer, having considered the facts, would conclude that there was a
real possibility that the tribunal was biased".
Legitimate expectation
Legitimate
expectation may arise out of a promise or a regular practice. Expectations
include being consulted, the right to a hearing and to make
representations. Legitimate expectation only concerns procedural
requirements and not substantive ones.
It has been
available from 1969 but was not developed unit the 1980’s.
Basically, it requires that a public body should keep its promises.
1. Express promise
given by decision maker should be honoured
2. Regular past
practice reasonably expected to continue should be allowed to continue.
In Schmidt
v Secretary of State for Home Affairs [1969] CA where
an immigrant had been refused entry to the UK on the grounds that he
belonged to the Scientology movement, Lord Denning (obiter) introduced
principle of legitimate expectation.
Schmidt
was followed in R v Liverpool Corporation ex parte
Liverpool Taxi Operators Association
(1972) QBD
where the corporation did not consult the LTOA despite having agreed that
they would consult them before they issued more licences.
Schmidt was followed again in Attorney General
of Hong Kong v Ng Yuen Shiu (1983) PC it had been
announced that before repatriation illegal immigrants (from Macau (now
part of China) to Hong Kong) would be interviewed and cases “treated on
its merits” in this case it did not happen. Ng was deported without any
opportunity of giving his reasons for remaining in Hong Kong. It was held
that the undertaking gave rise to a “legitimate expectation” that his case
would be considered on its merits.
However, not until
Council of Civil Service Unions v Minister for Civil Service
(1985) HL “The GCHQ spy case” was this third head added by Lord
Diplock. He said we should use the term “procedural propriety”. The
GCHQ case involved a ban on workers joining a trade union; the ban was
issued by the head of the civil service by way of an Order in Council. The
House of Lords held that the employees had a legitimate expectation to be
consulted before such action was taken.
In R v
Secretary of State for the Home Department ex p Khan (1985) CA
K and his wife wished to adopt a child from Pakistan. K obtained from a
Citizens’ Advice Bureau a standard letter from the Secretary of State
stating that he “may exercise his discretion and exceptionally allow a
child to be brought here for adoption” when satisfied on four specified
matters. K’s application was refused and it was shown that the Secretary
of State took into account a matter not mentioned in his letter. The court
held that any change in policy should have resulted in a hearing at which
K could have made representations. The Secretary of State was under a duty
to act fairly and was obliged to reconsider the matter on the basis of his
letter, or if the new policy was to apply, K should have an opportunity of
being heard.
Natural Justice
having started life as a very narrow doctrine with two heads, developed
into three. Today, judges use it regularly to mean any
procedure that is fair. So it is now is a very broad approach.
Some judges talk about the “requirements of natural justice and fairness”
and do not attempt to distinguish them.
