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Procedural Fairness Rule Against Bias & Right To Fair Hearing Problem Question Notes Notes

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PROCEDURAL FAIRNESS
Rule against bias, i.e. impartiality

PQ Approach
After considering common law bias, do not forget Art 6 ECHR if it is relevant on the facts.
For common law bias, always begin with automatic disqualification (for both financial and non-financial interests). If this is not possible, hedge your argument with the FMIO test.
NB. the implication of a determination of bias is that the decision-maker would be disqualified. This has ramifications. For e.g., where on the facts, the statute does not make clear who else would make the decision, this might be a problem.
Why is impartiality important?
(i)

Actual fairness

(ii)

Appearance of fairness. This reflects a key policy objective of preserving public trust in administrative and judicial bodies, such that individuals are willing to co-operate with public authorities to secure effective administration.
 R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256:
Facts: W, represented by firm X, sued M in civil proceedings (Whitworth v McCarthy).
At the same time, M was being prosecuted for a road traffic offence (Crown v McCarthy),
and the clerk to the justices in the magistrates' court was a partner in firm X. He had retired with the justices, but had not been consulted while the justices were coming to their decision. M then sought a quashing order in respect of his conviction on the basis of the clerk's influence.
Analysis: the clerk has not materially influenced the decision of the judges. So actual fairness was not an issue.
Verdict: Successful. While the clerk did not materially influence the outcome, Lord
Hewart CJ made it clear that justice should not only be done, but should manifestly and undoubtedly be seen to be done. Lord Hewart CJ at 258-259: 'It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way.
But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.'
Automatic disqualification i.

Financial interests
 Dimes v The Proprietors of the Grand Junction Canal (1852)
Facts: Lord Cottenham LC granted relief to the respondent company, which he held shares in. It was argued that the validity of his actions was in question and the decision should be set aside.
Verdict: Successful.
Lord Campbell at 793: 'No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern'. But no-one is to be 'a judge in his own cause' (nemo judex in causa sua).

In the past, any financial interest will disqualify a decision-maker.
 R v Rand (1865-66) LR 1 QB 230, Blackburn J at 232:
'any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter'.
 R v Camborne Justices, ex parte Pearce [1955] 1 QB 41, Slade J at 47: 'It is, of course, clear that any direct pecuniary or proprietary interest in the subject-matter of a proceeding, however small, operates as in automatic disqualification. In such a case the law assumes bias.'
Now, however, there is a de minimis exception:
 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, at [10]:
Facts: L was a secured creditor who had given a loan to E. The loan was secured on his property. E's wife claimed she had a share in some of E's property. S was an unsecured creditor who had given another loan to E.
It would help S if E's wife lost her case, because there would be more of E's property for
S to claim out of, if E defaulted on his loan. The judge deciding E's wife's cases was a partner in HS, a client of S.
A diagram of the financial relations in this case:

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

ii. Non-financial interest

Automatic disqualification for non-financial interests. The rule was extended on the basis of
(i) maintaining the appearance of fairness (no space for fine distinctions if we want justice to be seen to be done) and (ii) on the lack of dichotomy between financial and non-financial interests when it comes to the rule "no many should be a party to his own cause".
 R v Bow Street Metropolitan Stipendiary Magistrates, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119
Verdict: decision in Pinochet (no 1) quashed.
Lord Browne-Wilkinson noted that automatic disqualification can extend beyond financial interests at 588: "[A]lthough the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause."
PQ approach: AQ triggered only when (i) a decision-maker is closely connected with a party to a case, and (ii) the decision-maker has a strong commitment to a certain subject matter or cause (Pinochet (No 2)).
NB. Pinochet (No 2) is exceptional and has been heavily criticised.
 Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1
WLR 2416
Facts: Palestinian asylum seeker who came from Lebanon. She was claiming asylum on the basis of her involvement with Palestinian Liberation Organization, she argued her life would be in danger if she returned to Lebanon.
The claimant argued that Lady Cosgrove was biased as she was a member of the
International Association of Jewish Lawyers and Jurists
Verdict: no automatic disqualification. The society was not a party to the case. Lady
Cosgrove has also not necessarily aligned herself to the views of the society.
If unclear, remember that appearance (of justice) matter. In Pinochet (No 2), Lord BrowneWilkinson's decision emphasized the importance of the appearance (rather than the reality) of bias. Because the courts should be concerned with whether justice is seen to be done, there can be no room for fine distinctions, such as the fact that Lord Hoffmann was a director of AICL, not AI. McCarthy: "justice should not only be done but should manifestly and undoubtedly be seen to be done".
FMIO: Perception-based test i.

The test
 Porter v Magill (2001)
Facts: Westminster CC adopted a policy of selling council houses to tenants in marginal wards hoping that this would encourage them to vote for the Tories. The auditor investigated the matter and certified that a number of councillors were guilty of wilful misconduct by knowingly adopting and implementing an unlawful policy. IT was argued that the auditor's decision could not stand because it was tainted by apparent bias, caused by a media conference that he had held.
Verdict: Unsuccessful. Lord Hope affirmed that the test for apparent bias was changed.
At 103: "The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased"
In this case, there was nothing in the words used at the press conference (he emphasised that the findings were provisional) to give rise to apparent bias.

ii. How informed is the observer?

There is no general approach: all we have are pockets of knowledge the courts have or have not imputed onto the FMIO.
Re Medicaments: Lord Phillips suggested that the court should have regard only to such information as would be apparent to "ordinary, reasonably well-informed members of the public". Lord Hope noted that the observer can be assumed to have access to "all the facts that are capable of being known by members of the public generally".
However, two cases to be reconciled, where the courts expanded the knowledge of the observer  Taylor v Lawrence (2002): the fair-minded and independent observer would be aware of the legal traditions and culture of the jurisdiction, including the practice of judges and advocates dining together at the Inns of Court and judges and advocates in the same chambers. Facts: The judge was a client of the solicitor who represented one of the parties to the case over which he was presiding. The night before the judgment, the solicitor changed the judge's will at his request, free of charge. Held: no bias.
 Belize Bank Ltd v AG of Belize (2011): the informed observer would be aware of the general structure of the system of appeal, that this is a procedure under which the minister is statutorily authorised to appoint members of the Board,
that there is a limited pool of candidates, and that the appointees are required to take the oath of office. In short, the court was prepared to ascribe a large degree of technical knowledge to the observer. On the facts, there was no appearance of bias where the minister of finance of Belize had made public comments about perceived financial irregularities on the part of a bank but had also exercised his statutory obligation to appoint members of an administrative appeal board to determine an appeal concerning those perceived irregularities.

iii. What are the observer's characteristics? What are her powers of reasoning? How cynical or trusting would she be?

Gillies v Secretary of State for Work and Pensions (2006): the fair-minded observer is neither complacent nor unduly sensitive or suspicious, and that he would be able to distinguish between what is relevant and irrelevant and exercise his judgment to decide what weight should be given to the facts that are relevant. On the facts, it was held that the FMIO would be able to recognise the capacity of the doctor to distinguish between his roles in the Benefits Agency and the Disability Appeal Tribunal (which heard decisions made by the former Agency), and not be improperly influenced by other roles he might have.
However, cf. the particular facts of R v Secretary of State for the Home Department, ex p AlHasan (2005). Facts: A deputy prison governor had been present when it was decided that all inmates on particular wings should be subjected to intrusive searches. Later, his position as adjudicator on a case in which prisoners challenged this decision was challenged. Verdict:
Successful. A fair-minded observer would easily think him predisposed to find the decision lawful given that if he had decided otherwise this would be to acknowledge that the governor should not have confirmed the order and that he was wrong at the start.
Political decision-makers
Political decision-makers may be biased in two ways i.

Personal Bias

If a political decision-maker has a personal interest or connection with the case (e.g. related to one of the parties, financial involvement etc) then the normal rules on bias will apply:
 R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, [2009] 1
WLR 83, Pill LJ at [62]
'There is no doubt that Councillors who have a personal interest, as defined in the authorities, must not participate in Council decisions'.

ii. Political interests

Political considerations that are unconnected with his personal circumstances (e.g. party election manifestos, political comments, etc.)
In PQs, differentiate this from relevancy doctrine. Bias constitutes considerations which, if taken into account, would be so inimical to good administration that (i) there are no circumstances in which they may be legitimately be considered and (ii) even the suspicion that they have operated should result in the invalidity of the decision. Not so with the relevancy doctrine.
Arguably, political interests are not that inimical. They hence should not fall within the rule against

bias.

Instead,

they

are

governed

by

the

common

law

on

predisposition/predetermination.
The modern position is set out in Island Farm. The predisposition/predetermination distinction was put before the eyes of FMIO: would the FMIO have perceived a real possibility of illegitimate predetermination?
 R (Island Farm Development Ltd) v Bridgend County BC (2006)

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