Natural Justice in Legal Decision-Making
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E
The rules of natural justice are the minimum standards of fair decision-
making, imposed by the common law on
persons or bodies who are
under a duty to ‘act judicially’.
Originally, it was applied to courts of justice but now it extend to any
person or body who are deciding on a
specific issue(s) affecting the
right or interests of individuals
where a reasonable citizen would have
a legitimate expectation that the decision-making process would have
a
legitimate expectation
that the decision-making process would be
subject to
some rules of fair procedure
.
Thus, the content of
natural justice is flexible and variable.
What is expected of the decision maker is that
his decision is made
with due regard for the affected parties’ interests and accordingly be
reached without bias and after giving the party/parties the right to
put his / their case.
D
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T
Y
T
O
A
C
T
F
A
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R
L
Y
•
Is incumbent on every decision maker whose decision will affect the
individual interests
.
•
The rules of natural justice only apply when some sort of definite
code
of procedure
must be adopted,
however flexible that code may be &
however much the decision maker is said to be master of his own
procedure.
•
The rules of natural justice are formulated as
•
nemo judex in cause sua
•
no one shall be a judge in his own cause / rule against bias.
•
audi alteram partem
•
right to a fair hearing.
1. NEMO JUDEX IN CAUSE SUA – RIGHT TO A FAIR HEARING
an adjudicator must not have any direct
financial
or
proprietary
interest
in the outcome of the proceed.
He must not be
reasonable suspected
, or show a
real likelihood
of bias.
An adjudicator must not have any direct financial or proprietary
interest in the outcome of the proceed
•
No matter how small the adjudicator’s pecuniary interest may be,
no matter how unlikely it is to affect his judgment,
he is
disqualified from acting & the decision which he has
participated will be set aside
, unless:
•
(i) The
parties are made fully aware of his interest
in the
proceedings & clearly
waived
their right to object to his
participation OR
•
(ii) he is empowered to sit by a
special statutory dispensation
.
•
(iii) in a very exceptional circumstances ie all the available
adjudicators are affected by a disqualifying interest, in which case
they may have to sit as a
matter of necessity.
•
He must not be reasonable suspected, or show a real likelihood
of bias.
Likelihood of bias may arise from a number of causes:
membership of an organization
authority that is a party to the proceedings
a witness for a party to the proceedings
personal animosity or friendship towards a party.
Family relationship with a party
The strict test of disqualification for personal interest is based on
the
principle that public confidence in the administration of
justice must not be impaired by even the smallest suspicion of
judicial impropriety;
the rule looks to the appearance of the
matter to an outsider.
R v Sussex ex parte McCarthy [1924]
•
A magistrates’ clerk retired with the bench to consider a verdict in
a case of dangerous driving where the defendant was convicted.
•
Defendant appealed successfully to have the decision quashed on
the ground that the clerk belonged to a firm of solicitors acting in
a civil proceedings on behalf of the the other party.
Justice must not only be done but be seen to be done.
Test: would a member of the public, looking at the entire
situation as a whole, reasonable suspect that a member of
the adjudicating body would be biased?
In majority of the case, it would suffice if the court were to
ask itself whether a reasonable person viewing all the facts
would think that there was a substantial possibility of bias.
Metropolitan Properties Co Ltd v Lannon [1969]
•
The decision of a
rent assessment committee
was quashed
because the chairman, a solicitor, was acting for his father and
other tenants in a separate dispute against the landlord.
•
Reasonable people would have seen his conduct as unwise and
unjudicial.
Hannam v Bradford Corporation [1970]
•
It was held that it was contrary to natural justice for school
governors to sit as members of a local education authority’s sub-
committee which had to decide whether to confirm a decision of
the governors to dismiss a teacher.
•
This was so even though the relevant governors had been absent
from the meeting of governors which took the decision to
dismiss.
AUDI ALTERUM PARTEM - RIGHT TO A FAIR HEARING
The right to a fair hearing requires at least that nobody be penalized
by a decision affecting his rights or legitimate expectations unless he
has been given
•
(a)
notice
of the case he has to meet &
•
(b) a fair
opportunity to answer the case against him & put his own
case
.
•
Cooper v Wandsworth Board of Works (1863)
a local authority exercised a statutory power to
demolish a house
without giving the owner notice or an opportunity to make
representations on his own behalf
he was awarded damages for
trespass, for the authority had failed to observe a rule ‘of universal
application and founded on the plainese principles of justice’.
The court claimed that it ‘invoked the justice of the common law to
supply the omission of the legislature’ which had failed to give the
property owner any right to be heard.
Natural justice applies to anyone who is acting judicially.
Ridge v Baldwin [1964]
•
Chief Constable of Brighton held his office where under the statutory
regulation, he may only be removed on grounds of neglect of duty or
inability.
•
He may not be dismissed in the absence of notification of the charge
and an opportunity to be heard in his defence.
•
The duty to act judicially could be inferred from the
nature of the
decision
to be taken and was not dependent on the nature of the
decision-making body.
•
Since Ridge v Baldwin, the general trend is to extend the application
of the rules of natural justice to any decision-maker who determine
questions affecting the rights or legitimate expectations of individuals.
R v Hull Prison Board of Visitors [1978]
•
Court of Appeal held that prisoners appearing before the Board of
Visitors to answer serious
disciplinary
charges which could result in
severe punishment had the right to a proper hearing.
Natural justice is not just limited to decisions depriving citizens of
existing rights.
Dicta
suggest that a citizen has a legitimate expectation that his
application for a discretionary benefit such as a license or permit
will not be refused
without a chance for him to put his case then
he is entitled to some sort of hearing.
Nonetheless,
this may be a case where the rule applicable is “duty
to act fairly” which is more fluid and less formal than a duty to
observe the rules of natural justice.
Today, it can be assumed that the rules of natural justice will apply in
the following situations:
Where the decision-making body is a court or tribunal.
Where the decision-making body has as its function the holding
and bearing of
inquiries
, or the
determination of disputes
between the parties.
Where a decision-making body is required to determine
questions of
law
or
fact
in individual cases & its decisions will
have a
direct impact on the interests of the individuals
concerned.
When a decision making body is vested with
discretionary
powers
in the exercise of those powers will take a decision
seriously impinging on
individual rights and expectations
. Today,
this may fall under a
duty to act fairly.
Note:
when a body conducts an investigation but has no power to
decide, providing that the investigation is truly only a
preliminary
fact-finding
exercise and there are no circumstances to suggest
that
it would be unfair to prevent the aggrieved individual
putting his case at this stage.
nonetheless,
duty to act fairly will attach to such bodies.
So, the
person who is faced with adverse imputations is entitled
to the opportunity to reply
. ie when a
person’s rights or interests
is affected
.
The requirement of
‘fairness’
would
depend on the facts of each
case
.
The duty to act fairly in such circumstances is a
duty not to
misuse the discretionary powers vested in the investigating
body
, not a duty to attempt to achieve a fair procedure.
What is fair hearing?
When a person has a right to a hearing, he must
•
Know what evidence has been given
•
What statements made against him
•
Be given a fair opportunity to correct or contradict the statements
made against him.
There is
no fixed rule that the right to be heard must be done orally.
In some situation, it can also be done in
writing
.
Nonetheless, there is a rebuttable presumption in favour of the duty to
afford an oral hearing if one is requested.
All relevant information
, including information gathered by the
decision maker on his own initiative or as a result of his own expertise
or consideration of the case,
must be disclosed to persons likely to be
affected by its concealment
, except when full disclosure may injure
the individual affected or the public interest.
R v Gaming Board ex parte Banaim and Khaida [1970] QB
•
Held – the gaming board was not required to disclose its sources
of information suggesting that applicants for gaming licenses had
underworld connections.
R v Secretary of State ex parte Hosenball [1977] WLR
An American journalist sought to have her deportation order
quashed on grounds that his presence in UK was not prejudicial to
national security.
One of the judges said that this was because of the security of the
country.
Hence, Mr Hosenball was deported despite the fact that when he
was afforded an opportunity of appearing before a panel advising
the Home Secretary on his decision to deport, he was given
inadequate information on which to answer the general charge
against him.
In general, whenever an oral hearing is granted, parties must be
allowed to call witness and make submission.
they must have a fair chance to put their case and
an adjournment of the hearing should be granted if necessary to
prevent a party being taken by surprise, but where there are a large
number of parties (as in a public inquiry), the prejudice to one party
must be weighed against the inconvenience to everyone else.
Cross- examination of witness should usually not be prevented &
hearsay evidence should not be allowed if it results in a person being
effectively disabled from answering the points made against him in the
hearsay testimony.
There are no hard and fast rules either on cross-examination or hearsay.
The main point here is that the nature of the decision and process
challenged and whether at the end of the day, the persons affected
did have a
proper opportunity to put their case
.
•
Legal representation
It is said that a party who is entitled to be heard is
prima facie
entitled to be legally represented.
The number of circumstances in which the implied right can be
excluded makes it more accurate to say that
there is probably a
right to be legally represented when a fair hearing is not
possible without a legal representation.
The
more that a person affected has at stake and the more severe
the potential sanction
then the more likely it is that legal
representation may become a right enforced by the rules of
natural justice.
Sometime, there is an
oral hearing conducted by a small
committee or tribunal but the decision is made by a larger body.
the general rule :
he who decides must also hear.
This requires that those who listen to the evidence and make
recommendations
must deliver to the deciding body an
adequate report on which the body can discharge its obligation
to hear as well as decide.
The stringency of this requirement would
depend on the nature
of the decision-making process under review.
The more closely it resembles a proceeding in a court, the most
strictly the rule will apply.
Natural justice is not intended to be a
precise and uniform code of procedure.
What the court seek to enforce is
substantial justice
.
Duty to act fairly
Some are of the opinion that duty to act fairly is not rationally
distinguishable from the duty to observe the rules of natural
justice.
Judges sometimes uses the terminology interchangeably.
It has been suggested that
although in some situation, there is
no duty to apply the rule of natural justice, yet the decision
maker are under the duty to act fairly.
The duty to act fairly prohibits the decision maker from acting
capriciously.
This usually applies in the following area:
I.
in the area that affects a
large group
as opposed to individuals.
I.
Part and parcel of
everyday administration
.
II.
Made by bodies which are so different in form and function
from those usually subjected to natural justice in that the court
would be happier if
flexible notions of fairness rather then
stretching the rule of natural justice even further.
•
R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators
Association [1972]
The town clerk of Liverpool assured the bodies representing taxi drivers
that
no increase in the number of taxi licenses would be made
without consulting them.
The sub-committee of the council
recommended gradual increase after
hearing representations from lawyers representing the taxi drivers.
An undertaking was given in the council that there will be no increase
until the legislation is passed.
The council was then advised that this restriction acted as an improper
fetter to their discretion and the numbers of taxi licenses increased.
Court of Appeal held:
although the council was exercising an
administrative function in determining the number of taxi-licenses to be
allocated in the city,
the court shall not hesitate to intervene in a suitable
case in ensuring fairness.
This example shows that where
‘the duty to act fairly’
was
preferred to the rules of natural justice as a tool of
judicial
control.
Example of decision-making process which are so far removed
from where the rule of natural justice would apply.
They are
decisions taken in a context where the effect of
requiring fairness to one group or individual must be considered
in the scope of exercising administrative duty.
ADMINISTRATIVE LAW
OF MALAYSIA AND SINGAPORE
MP JAIN
UPDATED BY DR DAMIEN J.CRIMEAN
LEXISNEXIS
3
RD
EDITION
The concept of natural justice sets forth the minimum standards of fair decision-making, applicable to anyone making decisions impacting individual rights. It emphasizes unbiased decision-making, fair procedure, and giving parties a chance to present their case. The duty to act fairly requires decision-makers to avoid bias and ensure a fair hearing. Adjudicators must not have a direct financial interest or show bias in the outcomes.
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Presentation Transcript
NATURAL JUSTICE NATURAL JUSTICE The rules of natural justice are the minimum standards of fair decision- making, imposed by the common law on persons or bodies who are under a duty to actjudicially . Originally, it was applied to courts of justice but now it extend to any person or body who are deciding on a specific issue(s) affecting the right or interests of individuals where a reasonable citizen would have a legitimate expectation that the decision-making process would have a legitimate expectation that the decision-making process would be subject to some rules of fair procedure. Thus, the content of natural justice is flexible and variable. What is expected of the decision maker is that his decision is made with due regard for the affected parties interests and accordingly be reached without bias and after giving the party/parties the right to put his / their case.
DUTY TO ACT FAIRLY DUTY TO ACT FAIRLY Is incumbent on every decision maker whose decision will affect the individual interests. The rules of natural justice only apply when some sort of definite code of procedure must be adopted, however flexible that code may be & however much the decision maker is said to be master of his own procedure. The rules of natural justice are formulated as nemo judex in cause sua no one shall be a judge in his own cause / rule against bias. audi alteram partem right to a fair hearing.
1. NEMO JUDEX IN CAUSE SUA RIGHT TO A FAIR HEARING an adjudicator must not have any direct financial or proprietary interest in the outcome of the proceed. He must not be reasonable suspected, or show a real likelihood of bias.
An adjudicator must not have any direct financial or proprietary interest in the outcome of the proceed No matter how small the adjudicator s pecuniary interest may be, no matter how unlikely it is to affect his judgment, he is disqualified from acting & the decision which he has participated will be set aside, unless: (i) The parties are made fully aware of his interest in the proceedings & clearly waived their right to object to his participation OR (ii) he is empowered to sit by a special statutory dispensation. (iii) in a very exceptional circumstances ie all the available adjudicators are affected by a disqualifying interest, in which case they may have to sit as a matter of necessity.
He must not be reasonable suspected, or show a real likelihood of bias. Likelihood of bias may arise from a number of causes: membership of an organization authority that is a party to the proceedings a witness for a party to the proceedings personal animosity or friendship towards a party. Family relationship with a party The strict test of disqualification for personal interest is based on the principle that public confidence in the administration of justice must not be impaired by even the smallest suspicion of judicial impropriety; the rule looks to the appearance of the matter to an outsider.
R v Sussex ex parte McCarthy [1924] A magistrates clerk retired with the bench to consider a verdict in a case of dangerous driving where the defendant was convicted. Defendant appealed successfully to have the decision quashed on the ground that the clerk belonged to a firm of solicitors acting in a civil proceedings on behalf of the the other party. Justice must not only be done but be seen to be done. Test: would a member of the public, looking at the entire situation as a whole, reasonable suspect that a member of the adjudicating body would be biased? In majority of the case, it would suffice if the court were to ask itself whether a reasonable person viewing all the facts would think that there was a substantial possibility of bias.
Metropolitan Properties Co Ltd v Lannon [1969] The decision of a rent assessment committee was quashed because the chairman, a solicitor, was acting for his father and other tenants in a separate dispute against the landlord. Reasonable people would have seen his conduct as unwise and unjudicial. Hannam v Bradford Corporation [1970] It was held that it was contrary to natural justice for school governors to sit as members of a local education authority s sub- committee which had to decide whether to confirm a decision of the governors to dismiss a teacher. This was so even though the relevant governors had been absent from the meeting of governors which took the decision to dismiss.
AUDI ALTERUM PARTEM - RIGHT TO A FAIR HEARING The right to a fair hearing requires at least that nobody be penalized by a decision affecting his rights or legitimate expectations unless he has been given (a) notice of the case he has to meet & (b) a fair opportunity to answer the case against him & put his own case. Cooper v Wandsworth Board of Works (1863) a local authority exercised a statutory power to demolish a house without giving the owner notice or an opportunity to make representations on his own behalf he was awarded damages for trespass, for the authority had failed to observe a rule of universal application and founded on the plainese principles of justice . The court claimed that it invoked the justice of the common law to supply the omission of the legislature which had failed to give the property owner any right to be heard.
Natural justice applies to anyone who is acting judicially. Ridge v Baldwin [1964] Chief Constable of Brighton held his office where under the statutory regulation, he may only be removed on grounds of neglect of duty or inability. He may not be dismissed in the absence of notification of the charge and an opportunity to be heard in his defence. The duty to act judicially could be inferred from the nature of the decision to be taken and was not dependent on the nature of the decision-making body. Since Ridge v Baldwin, the general trend is to extend the application of the rules of natural justice to any decision-maker who determine questions affecting the rights or legitimate expectations of individuals. R v Hull Prison Board of Visitors [1978] Court of Appeal held that prisoners appearing before the Board of Visitors to answer serious disciplinary charges which could result in severe punishment had the right to a proper hearing.
Natural justice is not just limited to decisions depriving citizens of existing rights. Dicta suggest that a citizen has a legitimate expectation that his application for a discretionary benefit such as a license or permit will not be refused without a chance for him to put his case then he is entitled to some sort of hearing. Nonetheless, this may be a case where the rule applicable is duty to act fairly which is more fluid and less formal than a duty to observe the rules of natural justice.
Today, it can be assumed that the rules of natural justice will apply in the following situations: Where the decision-making body is a court or tribunal. Where the decision-making body has as its function the holding and bearing of inquiries, or the determination of disputes between the parties. Where a decision-making body is required to determine questions of law or fact in individual cases & its decisions will have a direct impact on the interests of the individuals concerned. When a decision making body is vested with discretionary powers in the exercise of those powers will take a decision seriously impinging on individual rights and expectations. Today, this may fall under a duty to act fairly.
Note: when a body conducts an investigation but has no power to decide, providing that the investigation is truly only a preliminary fact-finding exercise and there are no circumstances to suggest that it would be unfair to prevent the aggrieved individual putting his case at this stage. nonetheless, duty to act fairly will attach to such bodies. So, the person who is faced with adverse imputations is entitled to the opportunity to reply. ie when a person s rights or interests is affected. The requirement of fairness would depend on the facts of each case. The duty to act fairly in such circumstances is a duty not to misuse the discretionary powers vested in the investigating body, not a duty to attempt to achieve a fair procedure.
What is fair hearing? When a person has a right to a hearing, he must Know what evidence has been given What statements made against him Be given a fair opportunity to correct or contradict the statements made against him. There is no fixed rule that the right to be heard must be done orally. In some situation, it can also be done in writing. Nonetheless, there is a rebuttable presumption in favour of the duty to afford an oral hearing if one is requested. All relevant information, including information gathered by the decision maker on his own initiative or as a result of his own expertise or consideration of the case, must be disclosed to persons likely to be affected by its concealment, except when full disclosure may injure the individual affected or the public interest.
R v Gaming Board ex parte Banaim and Khaida [1970] QB Held the gaming board was not required to disclose its sources of information suggesting that applicants for gaming licenses had underworld connections. R v Secretary of State ex parte Hosenball [1977] WLR An American journalist sought to have her deportation order quashed on grounds that his presence in UK was not prejudicial to national security. One of the judges said that this was because of the security of the country. Hence, Mr Hosenball was deported despite the fact that when he was afforded an opportunity of appearing before a panel advising the Home Secretary on his decision to deport, he was given inadequate information on which to answer the general charge against him.
In general, whenever an oral hearing is granted, parties must be allowed to call witness and make submission. they must have a fair chance to put their case and an adjournment of the hearing should be granted if necessary to prevent a party being taken by surprise, but where there are a large number of parties (as in a public inquiry), the prejudice to one party must be weighed against the inconvenience to everyone else. Cross- examination of witness should usually not be prevented & hearsay evidence should not be allowed if it results in a person being effectively disabled from answering the points made against him in the hearsay testimony. There are no hard and fast rules either on cross-examination or hearsay. The main point here is that the nature of the decision and process challenged and whether at the end of the day, the persons affected did have a proper opportunity to put their case.
Legal representation It is said that a party who is entitled to be heard is prima facie entitled to be legally represented. The number of circumstances in which the implied right can be excluded makes it more accurate to say that there is probably a right to be legally represented when a fair hearing is not possible without a legal representation. The more that a person affected has at stake and the more severe the potential sanction then the more likely it is that legal representation may become a right enforced by the rules of natural justice.
Sometime, there is an oral hearing conducted by a small committee or tribunal but the decision is made by a larger body. the general rule : he who decides must also hear. This requires that those who listen to the evidence and make recommendations must deliver to the deciding body an adequate report on which the body can discharge its obligation to hear as well as decide. The stringency of this requirement would depend on the nature of the decision-making process under review. The more closely it resembles a proceeding in a court, the most strictly the rule will apply.
Natural justice is not intended to be a precise and uniform code of procedure. What the court seek to enforce is substantial justice.
Duty to act fairly Some are of the opinion that duty to act fairly is not rationally distinguishable from the duty to observe the rules of natural justice. Judges sometimes uses the terminology interchangeably. It has been suggested that although in some situation, there is no duty to apply the rule of natural justice, yet the decision maker are under the duty to act fairly. The duty to act fairly prohibits the decision maker from acting capriciously.
This usually applies in the following area: I. in the area that affects a large group as opposed to individuals. I. Part and parcel of everyday administration. II. Made by bodies which are so different in form and function from those usually subjected to natural justice in that the court would be happier if flexible notions of fairness rather then stretching the rule of natural justice even further.
R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association [1972] The town clerk of Liverpool assured the bodies representing taxi drivers that no increase in the number of taxi licenses would be made without consulting them. The sub-committee of the council recommended gradual increase after hearing representations from lawyers representing the taxi drivers. An undertaking was given in the council that there will be no increase until the legislation is passed. The council was then advised that this restriction acted as an improper fetter to their discretion and the numbers of taxi licenses increased. Court of Appeal held: although the council was exercising an administrative function in determining the number of taxi-licenses to be allocated in the city, the court shall not hesitate to intervene in a suitable case in ensuring fairness.
This example shows that where the duty to act fairlywas preferred to the rules of natural justice as a tool of judicial control. Example of decision-making process which are so far removed from where the rule of natural justice would apply. They are decisions taken in a context where the effect of requiring fairness to one group or individual must be considered in the scope of exercising administrative duty.
ADMINISTRATIVE LAW OF MALAYSIA AND SINGAPORE MP JAIN UPDATED BY DR DAMIEN J.CRIMEAN LEXISNEXIS 3RD EDITION
