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WS 4 NATURAL JUSTICE

Administrative law

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1: Procedural Fairness: a. Introduction:

Right to fair hearing (oral or written) Must be aware of the allegation Be granted adequate time to be able to defend against

the allegation Know rights Process must be open and transparent Must operate by procedural rules (ensuring fair play) Process must be open and transparent Notice of hearing (may be in writing or oral)

b. Adequate Disclosure: 1) Introduction

Right to be heard NJ important in the context Public service employee (Oscar Selgado v AG Belize) Not without limits ( local government not having to

observe strictly the rules of NJ)

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Shazar Distributors v AG Barbados: consultation would be required dependent on the nature of the case

2: The Professions Context: disciplinary process

Informed the accused before hand of the allegation Give opportunity to answer charges Charges must be specific

Re Errole Niles: committee set up to investigate allegations contrary to code of ethics – no requirement to specify charge

3. Immigration: Hearing for licence or work permit

Sparman v Greaves: right to be heard not absolute, no national security issue no right to be heard

4 Public Service Commission Given power under consti= ameanable to JR Power includes: appoint, discipline, remove Must observe NJ

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PSC v Public Service Board of appeal: two applicants dismissed for different reason...no right to be heard regulations provided for summary dismissal

Easton v Guyana: there is presumption of fair hearing except where the right is excluded – police officer discharged has impact on benefits

Persons want to be heard torefute the allegation Clarify the particular circumstance, may/may not exist Right of appeal

5) Educational Institution: Right to be heard where benefit/privilege may be taken

away (Archibald v CLE: no right to be heard in contesting a failing grade),

6 Permits and license: Leading areas of contention in NJ

Bahadur v AGTT: no right to bee heard, transport board had appeal mechanicism; Naraysingh v COP TT: gun license revoked because of a second gun, some hearing necessary)

7) Planning Decisions

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State given power to determine Use of public land Acquisition of private land for public use Imperative that there be a right to be heard(loseing a

benefit) Blake Estate v AG Montseratt: property rights

affected, right to be heard National Trust for Cayman v Planning Appeal Board:

must satisfy fairness, give applicant reasonable chance with the full information, breach of the duty of fairness

C. Hearings Where statute, hearing must be done Operates my rules of NJ and due process Have a right to be heard the right must be balanced: Avoid delay, deliberately or otherwise Avoid any other circumstance that would cause delay in

the proceedings Principle: no one should suffer without properly being

heard RE Langhorne: no breach of NJ because no request

made for adjournment

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Clifford v Graham: maintenance court had granted two adjournment for a DNA that was not done, third adj was denied and it was not unreasonable

Dios Mar Ltd v Planning appeals Tribunal: corporation did not have proper attorney at tribunal but failed to ask the court for an adj to secure one after relying on a lay person

2) Right to Cross Examine: Testing of the facts Constitutes part of fair hearing, but not always necessary (Johnson v Registrar of

Insurance: not registering an underwriter did not require CE, but to convince the registrar otherwise)

Cross examination should be allowed to resolve important issues (Ganga v COP: CE rear and should occur when facts conflict, the central issue or infringes on frank disclosure)

Leading case: (Selgado v AG Belize: courts have duty to act fairly, request made for CE and denied, procedural impropriety)

3) Oral hearings:

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Some statues mandate, but generally not mandated Caribbean statutes seem to always mandate for hearing

Rees v Crane: given the circumstances (imposition of tribunal)oral hearing necessary

Narayinsingh v COP: revoking of gun licence did not necessarily require an oral hearing. Written procedure would suffice, but amounts to hearing

D. Exceptions: Need for urgent action

PA needs to act urgently (Century National Merchant Bank v MOF: temporary assumption of management, no notice or presumed adverse effect)

Preliminary hearings Suspension for investigation Preliminary stage (Nelson v Mayor, St Lucia:

suspended from discharging duty because of discrepancy, distinguished from Rees because he had opportunity to write, Nelson discharging his duty is the source of the discrepancy)

2: The right to reason

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a. Introduction Circumstances that the court would consider to give

reason Should be when requested General rule: no CL obligation to provide reason Caribbean position: adopts CL but may consider it on

case by case basis JRA s 16; AJA s13,14,15: provides that reason must be

provided in a reasonable time – modification of the CL rule

Alexander v Land Surveyor: fairness demands that reason be provided, given on a case by case basis

HINT: HINT: p208 b. CL 1. Public service

Empowered by consti to appoint, remove discipline Should they provide reasons?

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Williams v PSC: PSC provided no compelling reasons why they were not giving reason so they have a duty to provide the reason (passed over for promotion): special circumstances that create a duty to give reason: Decisions not appealable, arbitrary and applicant had special interest

2) Nature of the duty: Decisions that affect livelihood may need reason

(Burroughs v Katwaroo: no reasons for revocation of license (gun); courts can infer since none existed; PA acted in bad faith)

3) Courts and tribunals Limited circumstances that reasons may be given However, suggested that reason should be given because

of transparency (1st instance courts/tribunals) James v AG TT: Appeal was unduly affected because

there was no reasoning appended – CA would treat the matter ass fresh, but transparency of the court should be the watchword of the courts

Alexander Williams v AG TT: Duty to provide reasoning is a part of TT Law , failure to makes it difficult for the CA to properly review

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4) The profession Blaze v Architects: no statutory duty to provide reason

except if it affects personal liberty, decisions that are aberrant

5) Planning decisions: Virgin Islands v AG BVI: No statutory duty existed for the

Minister grant reasons for not giving the licence. Reason should be adequate/intelligible

Barbados AJA s13: reason must be provided where it is requested, must be made before, during, after 14 days of the decision made generally no duty except in the above mention

case, court can mandate that reasons be given (Spparman v Greaves: no time limit and is deemed to be where reasonable)

JRA TT s 16: same as AJA but specifies 28 days, where applicant requests

6) Financial Institution: (RE Clegghorn: Central bank had no statutory duty to provide reason for a vesting order)

7) Ministry of education: (Caribbean Book Distributors: No duty to provide for a revised booklist, to burdensome for admin to give reason for everything)

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8) Immigration and National Security: (Burnett v Chief Immigration Officer: reasons must be advanced where persons will be deported – affects personal liberty)

9) DPP: (Tappin v Lucas: Not required to give reasons in accordance with Constitutional duty)

C: Statutory right to reasons 1) AJA Barbados s 13(1): Requires that reasoning be granted

where requested within 14 days after decision to person adversely affected (sparman v Greaves: originally reasons was to be proffered however the section had an exemption for the minister of that duty)

2) JRA TT s 16: Provides statutory basis for reasoning (Polo v Public Services: applicant entitled to reasoning but must apply for it within 28 days of the decision)

3) Rule against Bias: a. Introduction:

Public perception is key, thus decision maker must act with open mindedness

Ability to not be influenced by information before a proceeding

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Rules against bias

Test: Whether right thinking members of the society apprised with the circumstances would conclude that the tribunal was biased (apparent bias)

Actual bias: hard to prove Caribbean follows Uk apparent bias Effect of bias:

Disqualify the decision maker automatically (decision maker has pecuniary /proprietary interest)

Allegations must be supported by evidence b. Automatic disqualification:

Decsionmaker/PA has pecuniary/proprietary interest – bias presumed – disqualification

Ex Robinson: No automatic disqualification because the PSC who served the termination is endowed with such right constitutionally

Meerabux v AG BZE: no automatic disqualification for the chair of the BAC given that he was not a part of the BARS decision to report judge and he was detached from the BAR at the time; Test of apparent bias applied

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Rules against bias

Test of bias more explicit: Automatic disqualification because of

pecuniary/proprietary interest: (Meerebux v AG BZE: whether the chairman of the Council should be AD because of his membership on the BAR wjo lodged the complaint?)

Case which was considered: Pinochet: automatic disqualification expanded to

include judges, where it was seen that there membership on AI subsidiary body can pose a danger to being biased and it promoted the same causes in the same organ that is party to the suit

Meerabux: Lord hope critical of pinochet citing that it did not adequately consider the law as set out in Gough

Gough: test for bias was whether there is a real danger of bias in consideration of the circumstances

Test later reviewed in Re Medicament’s test: Circumstances alleging bias, would the FMO

believe that there is a real possibility of bias Test adjusted in Magill: Fmo considered the facts would say that the tribunal

was biased

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Rules against bias c. Apparent bias 1) Officers of the court: (lynton v Hyman p221: courts

intervene where there is a real likelihood of bias because a disqualified person participated in the process, prejudged matter, interest/private party had access to the adjudication – not the case here

2) Coroners: Re Israel p221: apparent bias exist where it is presumed

that the decision maker may be prejudiced; bias: attitude of the mind that prevents objective determination

Determining who the fair minded observer is: Working knowledge of the law Awareness of legal culture Knowledge of procedure and practices of the court Circumstances he would consider Those surrounding the applicant Powers that coroners retain would not lead to a bias

(powers of arrest)

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Rules against bias

Issuing of witness summons – does not constitute bias

3. Judges Fraser v JLSC: recusal of the judges because of bias was

not accepted given the applicant was imbued in another matter with the same judges which amounted to a waiver of such an objection

4) Judicial and legal services commission: (Rees v Crane: no apparent bias or personal malice on the part of the CJ who was present at the time a complaint was made, assumption against professional cannot be taken lightly.

5) Magistrates: Panday v Vigil: Fmo must consider the circumstances if

the allegation and then determine where there is a real possibility of bias

Panday v Espinet: Fmo would get all the information before making a decision

6) The applicable test Curry v AG Bahamas: Which test should apply?

Deemed to be bound by AG Bahamas v Miller (which meant they were bound by there own decision)

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Rules against bias CA rejected the Magill test (based on ECHR)

accepted Gough test Ventose believed they were wrong because they

could not be bound by there own judgements Meerbux: used the Magill test which considered:

FMO principle Circumstances: Nature of the tribunal Consti making it compulsory for the President of

the bar to convene meeting Exception: whether the minutes of the bar should

be reviewed JRA s 5 Bias

TUTORIAL: revision of cases 21.3.13 4: Tribunals and Inquiries a. Introduction

whether they operate by principles of NJ b. Inquiries:

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Tribunals and Inquiries

1. Introduction: George v McIntyre:

Set up for vital public matters Has exceptional inquisitorial powers and procedures Evidence of the inquiry cannot be used elsewhere

2. Appointment of COI Must be for public purpose (Tudor v Forde: COI void,

appointment had no designated purpose; Bermuda Light and power v Hewlett: CPI could investigate company because it existed for a public purpose)

Statute Based 3. Representation by counsel: (Prince v De La Bastide: COI

does not determine Ps rights, P entitle to declaratory relief (vindication:, commissioners plays different roles)

4. Evidence: COI can find for contempt for non compliance of orders

( AG v Bannister: Respondent in contempt, refused to take oath)

5. Cross examination: (Seaga v Isaacs: No automatic right to cross examine, left to discretion of the Commissioners)

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Tribunals and Inquiries 6. Standard of review (Brancker v Thompson: COI acted in

excess of jurisdiction by issuing a notice of allegations) 7) Natural Justice:

George v McIntyre: Cardinal rules of COI

Satisfaction of the commission that the person before it is the one they propose to investigate

Persons called must be aware of the allegations Adequate time and notice must be given, for a

proper defence (Small v Belgrave: No breach of NJ, applicant was served with adequate notice and accompanying evidence)

Practical and reasonable witnesses should be heard

Opportunity to cross examine evidence that may affect the person

8. Rules against Bias: (Lionel v AG St Lucia: apparent bias test (see earlier slide) and reasonable suspicion test.

9.Public Hearing: Proceedings are public (Tudor v Forde: hearings are

public but COI determine what evidence will be heard in Camera)

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Tribunals and Inquiries

10. Standing of the COI: Usually not a claimant in JR (DFC commission, Belize: no

standing. Assertions made must be resisted by the person against who it was made

11: Mandatory/Directory (99 & 236) Non compliance of rules makes matters void/voidable Procedural irregularity does not invalidate process

(Joachim v AG SVG: immaterial indiscretion in the investigation of shipyard project by GG did not render exercise unlawful)

c. Tribunals 1. Locus Standi (MOHA & H v Permanent police tribunal:

Minister no locus standi because he does not have sufficient interest)

2. Error of law: Court have jurisdiction over inferior tribunals (Linton v

Hyman: magistrate presumed to be biased...if court made decision in error of law on which it depended, it went outside of its jurisdiction)

3. Rule against Bias: (Grant v Teacher’s appeal Board: test off the fair minded observer (see earlier slides)

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Tribunal and inquiries

4: Abdication: (National trust Cayman v Planning appeal: delegation of duty was unlawful as it gave the responsibility of compliance to another)

5. Irrelevant Consideration: (AJA & JRA 5) Same as JR Considering factors that has no bearing on the matter

at hand (astephan v Dominca AG: consideration of a revised treaty would have been irrelevant in granting a import license given that Dominica had not sign the treaty.

6. Right to a fair hearing: Tribunal must practice rules of a fair hearing (Small v

Belgrave: no breach of NJ, applicant was granted adequate notice with accompanying evidence)