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Justice - Judicial Review

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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,

  1. Audi alteram partem (hear the other side) written or oral

  2. 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.

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