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English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...
, natural justice is
technical terminology Jargon is the specialized terminology associated with a particular field or area of activity. Jargon is normally employed in a particular communicative context and may not be well understood outside that context. The context is usually a partic ...
for the rule against bias (''
nemo iudex in causa sua ''Nemo judex in causa sua'' (or ''nemo judex in sua causa'') (which, in Latin, literally means "no-one is judge in his own cause") is a principle of natural justice that no person can judge a case in which they have an interest. In many jurisdictio ...
'') and the right to a fair hearing (''
audi alteram partem (or ) is a Latin phrase meaning "listen to the other side", or "let the other side be heard as well". It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evid ...
''). While the term ''natural justice'' is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly". 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 whereas 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 In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
rather than replace it.


Background

Natural justice is a
term of art Jargon is the specialized terminology associated with a particular field or area of activity. Jargon is normally employed in a particular communicative context and may not be well understood outside that context. The context is usually a partic ...
that denotes specific procedural rights in the
English legal system English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, bee ...
and the systems of other nations based on it. It is similar to the American concepts of
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. Certain types of private actors (especially professional associations, unions, hospitals, and ...
and procedural
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...
, 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 In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
and moral principles, the use of the term today is not to be confused with the "
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
" of the
Canonists Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
, 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 ''Nemo judex in causa sua'' (or ''nemo judex in sua causa'') (which, in Latin, literally means "no-one is judge in his own cause") is a principle of natural justice that no person can judge a case in which they have an interest. In many jurisdictio ...
'', or "no man a judge in his own cause"), and the right to a fair hearing (''
audi alteram partem (or ) is a Latin phrase meaning "listen to the other side", or "let the other side be heard as well". It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evid ...
'', 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)'' (1999), the
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
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 The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a pers ...
s, and the choice of procedure made by the decision-maker. Earlier, in '' Knight v Indian Head School Division No 19'' (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.


Rule against bias


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 Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 whe ...
, the
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 President of the Civil Division of the Court of Appeal of England and Wales and Head of Civil Justice. As a judge, the Master of ...
, in '' Metropolitan Properties Co (FGC) 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, (7 January 1870 – 5 May 1943) was a politician and judge in the United Kingdom. Background and education Hewart was born in Bury, Lancashire, the eldest son of Giles Hewart, a draper, and Annie Elizabeth Jo ...
, the
Lord Chief Justice of England and Wales Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or ...
, that " 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".


Forms of bias


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 ''Dimes v Grand Junction Canal'' (1852) was a case heard by the House of Lords. The case addresses the point that "Judges must not appear to be biased". Lord Cottenham presided over a previous case in which a canal company brought a case in eq ...
'' (1852), which involved an action between Dimes, a local landowner, and the proprietors of the
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, b ...
, in which the
Lord Chancellor The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. Th ...
, Lord Cottenham, 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 The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
, the
Crown Prosecution Service The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions. The main responsibilities of the CPS are to provide legal advi ...
sought to overturn a quashing order made by the
Divisional Court A divisional court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges.Section 66, Senior Courts Act 1981. Matters heard by a divisional court include some criminal cases in the High Court ...
regarding
extradition Extradition is an action wherein one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdi ...
warrants Warrant may refer to: * Warrant (law), a form of specific authorization ** Arrest warrant, authorizing the arrest and detention of an individual ** Search warrant, a court order issued that authorizes law enforcement to conduct a search for eviden ...
made against the ex-Chilean dictator, Senator
Augusto Pinochet Augusto José Ramón Pinochet Ugarte (, , , ; 25 November 1915 – 10 December 2006) was a Chilean general who ruled Chile from 1973 to 1990, first as the leader of the Military Junta of Chile from 1973 to 1981, being declared President of ...
.
Amnesty International Amnesty International (also referred to as Amnesty or AI) is an international non-governmental organization focused on human rights, with its headquarters in the United Kingdom. The organization says it has more than ten million members and s ...
(AI) was given leave to intervene in the proceedings. However, one of the judges of the case,
Lord Hoffmann Leonard Hubert "Lennie" Hoffmann, Baron Hoffmann (born 8 May 1934) is a retired senior South African–British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009. Well known for his lively decisions and willingness to break w ...
, 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 (UK) Ltd v Bayfield Properties Ltd'' (1999),. the
Court of Appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much ...
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 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'' (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. 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 " ovided 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 The High Court of Singapore is the lower division of the Supreme Court of Singapore, the upper division being the Court of Appeal. It consists of the chief justice and the judges of the High Court. Judicial Commissioners are often appointed ...
decision ''Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board'' (2005), Judicial Commissioner
Andrew Phang Andrew Phang Boon Leong (born 15 December 1957) is a Singaporean judge in the Supreme Court. Early life and education Phang was born in 1957 in Singapore. Phang received his Bachelor of Laws (first class honours) from the University of Sing ...
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 Anant Kulkarni'' (2006),. Judicial Commissioner
Sundaresh Menon Sundaresh Menon (born 26 February 1962) is a Singaporean lawyer and jurist who has been serving as the fourth chief justice of Singapore since 2012, appointed by President Tony Tan. Education Sundaresh graduated from the National University of ...
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 In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...
, 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 The Court of Appeal of Singapore is the nation's highest court and 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, who is ...
had not yet expressed a view as to whether the position taken in ''Tang Kin Hwa'' or ''Shankar Alan'' is preferable.


Exceptions to the rule against bias


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 A chancellor is a leader of a college or university, usually either the executive or ceremonial head of the university or of a university campus within a university system. In most Commonwealth and former Commonwealth nations, the 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 asa 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, but
voidable Voidable, in law, is a transaction or action that is valid but may be annulled by one of the parties to the transaction. Voidable is usually used in distinction to void ''ab initio'' (or void from the outset) and unenforceable. Definition The ac ...
. 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 ('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
'', hence making the judgment void. Lord Esher said in ''Allison v General Council of Medical Education and Registration'' (1894)''Allison v General Council of Medical Education and Registration'' 8941 QB 750,
Court of Appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much ...
(England & Wales).
that the participation of a disqualified person "certainly rendered the decision wholly void".


Right to a fair hearing


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'' 964AC 40 was a UK labour law case heard by the House of Lords. The decision extended the doctrine of natural justice (procedural fairness in judicial hearings) into the realm of administrative decision making. As a result, th ...
'' (1963), the scope of the right to a fair hearing was severely restricted by case law following ''Cooper v Wandsworth Board of Works'' (1863).. This was seen in cases such as ''Local Government Board v Arlidge''
915 Year 915 ( CMXV) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Europe * Summer – Battle of Garigliano: The Christian League, personally led by Pope John X, lays s ...
AC 120,
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
(UK); and ''R v Leman Street Police Station Inspector, ex parte Venicoff'' 9203 KB 72, High Court ( Kings Bench) (England & Wales).
In ''R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd.'' (1923),''R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd.''
924 __NOTOC__ Year 924 ( CMXXIV) was a leap year starting on Thursday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Byzantine–Bulgarian War: Forces led by Simeon I, ruler (''knyaz'') ...
1 KB 171, High Court ( Kings Bench) (England & Wales).
Lord Atkin observed that the right only applied where decision-makers had "the duty to act judicially". In natural justice cases this ''
dictum In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal ter ...
'' 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 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 A treasury is either *A government department related to finance and taxation, a finance ministry. *A place or location where treasure, such as currency or precious items are kept. These can be state or royal property, church treasure or i ...
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 From 2000 to 2015, the British Parliament passed a series of Terrorism Acts that were aimed at terrorism in general, rather than specifically focused on terrorism related to Northern Ireland. The timings were influenced by the September 11, 2001 at ...
and the Al-Qaida and Taliban (United Nations Measures) Order 2006 made under the
United Nations Act 1946 The United Nations Act 1946 (9 & 10 Geo. 6 c. 45) is an Act of the Parliament of the United Kingdom which enables His Majesty's Government to implement resolutions under Article 41 of the United Nations Charter as Orders in Council. Thus Parli ...
. The
Supreme Court of the United Kingdom The Supreme Court of the United Kingdom ( initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
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 ('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
'' 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.


Aspects of a fair hearing


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
William Erle William is a male given name of Germanic origin.Hanks, Hardcastle and Hodges, ''Oxford Dictionary of First Names'', Oxford University Press, 2nd edition, , p. 276. It became very popular in the English language after the Norman conquest of Eng ...
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 John Mustill, Baron Mustill, PC, FBA (10 May 1931 – 24 April 2015) was an English barrister and judge. He was a Lord of Appeal in Ordinary from 1992 to 1997. Life and career The son of Clement William and Marion Mustill, he was ed ...
famously held in '' R v Secretary of State for the Home Department Ex p Doody'' (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 The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannic ...
– 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 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 Federation of Malaya'' (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 A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mo ...
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),''Lloyd v McMahon'' 9871 AC 625,
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
(UK).
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 Harry Woolf 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.''Kay Swee Pin v. Singapore Island Country Club'' 0082 S.L.R.(R.) 802 at 806, para. 7. In ''Secretary of State for the Home Department v AF'' (2009),.
Lord Phillips of Worth Matravers Nicholas Addison Phillips, Baron Phillips of Worth Matravers, (born 21 January 1938) is a British former senior judge. Phillips was the inaugural President of the Supreme Court of the United Kingdom, holding office between October 2009 and Oc ...
said: However, when a hearing requires the balancing of multiple
polycentric Polycentric is an English adjective, meaning "having more than one center," derived from the Greek words ''polús'' ("many") and ''kentrikós'' ("center"). Polycentricism (or polycentricity) is the abstract noun formed from polycentric. They may r ...
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 The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
''A v United Kingdom'' (2009), that a person accused of terrorism against whom a
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 ...
has been issued must be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate. 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 The Special Immigration Appeals Commission (also known by the acronym SIAC) 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 t ...
(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 An alibi (from the Latin, '' alibī'', meaning "somewhere else") is a statement by a person, who is a possible perpetrator of a crime, of where they were at the time a particular offence was committed, which is somewhere other than where the crim ...
, 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 In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...
'' mistake by an adjudicator in omitting to state reasons for not considering a submission is not enough to be a breach of natural justice.''SEF Construction Pte. Ltd. v. Skoy Connected Pte. Ltd.''
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1 S.L.R. 733 at 757, para. 58.
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),''R v Secretary of State for Home Department, ex parte Tarrant''
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1 QB 251,
Divisional Court A divisional court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges.Section 66, Senior Courts Act 1981. Matters heard by a divisional court include some criminal cases in the High Court ...
(England & Wales).
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 there 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, also known as equality under the law, equality in the eyes of the law, legal equality, or legal egalitarianism, is the principle that all people must be equally protected by the law. The principle requires a systematic r ...
. 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),''Rajeevan Edakalavan v. Public Prosecutor'' 9981 S.L.R.(R.) 10, H.C. (Singapore). the accused had appeared in person before a magistrate and had entered a
plea In legal terms, a plea is simply an answer to a claim made by someone in a criminal case under common law using the adversarial system. Colloquially, a plea has come to mean the assertion by a defendant at arraignment, or otherwise in response ...
of guilt. He later petitioned the High Court for criminal revision, arguing that as the magistrate had not informed him of the defences 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 of the Constitution of Singapore 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),''R v Northumberland Compensation Appeal Tribunal, ex parte Shaw''
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1 KB 338,
Court of Appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much ...
(England & Wales).
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.


See also

*
Doctrine of bias in Singapore law Bias is one of the grounds of judicial review in Singapore administrative law which a person can rely upon to challenge the judgment of a court or tribunal, or a public authority's action or decision. There are three forms of bias, namely, a ...
*
Fundamental justice In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as ...
*
Judicial review in English law Judicial review is a part of UK constitutional law that enables people to challenge the exercise of power, usually by a public body. A person who contends that an exercise of power is unlawful may apply to the Administrative Court (a part of the ...


Notes


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