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Procedural Fairness Notes

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Procedural Fairness Justifying Fair Procedures

* R v Secretary of State for the Home Department, ex p Doody (HL)

* It is only fair for reasons to be furnished re the refusal to grant parole due to the natural desire of the party affected to understand why he has been unsuccessful and also to allow the same person to challenge errors of fact or reason contributing to the outcome. Natural Justice

* Kioa v Minister for Immigration and Ethnic Affairs (Aus HC) - the principles of natural justice require a different response from an authority depending on the circumstances in which the authority is called on to use its power.

* Fraser v State Services Commission (NZ CA) - the requirements of natural justice depend on the nature of the power being exercised, the effect which its exercise will have on the persons affected by it and the circumstances of the particular case. Constitutional Justice

* International Fishing Vessels v Minister for the Marine (No 2) (SC) Constitutional justice requires reasonable fairness, not the best or most perfect standard of justice.

* McDonald v Bord na gCon (SC) - The Constitution requires that the concept of natural justice be extended beyond the two traditional principles of nemo judex in causa sua and audi alteram partem.

* East Donegal Co-Op Livestock Mart v Attorney General (SC) - the presumption of constitutionality attaching to a statute means that the Oireachtas must be held to have intended that proceedings and adjudications provided for in the statute be exercised according to the principles of natural justice.

* Re Haughey (SC) - Article 40.3 includes a guarantee of the basic fairness of procedures and Mr. Haughey's right to those procedures had been violated by denying him the ability to cross-examine his accusers and address the committee through counsel in his defence.

* S v S (HC) - The provisions of the Constitution protecting the right of access to the courts and the guarantee of fair procedures implicit in Article 40.3 create something akin to the concept of 'due process' found in the American Constitution.

* State (Gleeson) v Minister for Defence (SC) - Distinguished between constitutional justice and natural justice - constitutional justice only took effect where a constitutional right was threatened. There is however a distinct doctrine of constitutionalized natural justice, i.e. common law principles subsumed into or augmented by the provisions of the Constitution.

* State (Furey) v Minister for Defence (SC) - the principles of natural justice have been assimilated by constitutional justice - they are not separate from constitutional justice as posited in Gleeson. Nemo Iudex in Causa Sua

* Addresses the concern that justice must not only be done, but seen to be done - R v Sussex JJ, ex p McCarthy (Div C)

* Perception of impartiality underpins the administration of justice and once a possible perception of bias has been raised reasonably on grounds of pre-existing non-judicial position and actions, constitutional justice will not allow the trial to proceed - Dublin Wellwoman Centre Ltd v Ireland (SC)

* Orange Communications Ltd v Director of Telecommunications Regulation (SC)



Bias: Any relationship, interest or attitude which actually did influence or might be perceived to influence a decision or judgment already given or might be perceived would influence a decision or judgment yet to be given. Three categories of bias

* actual bias - rarely used

* apparent bias where the decision maker has a definite interest (e.g. financial or proprietary) in the outcome of the case

* apparent bias where a reasonable person would apprehend that the decision maker is biased due to interests or relationships external to the main issue

Apparent Bias

* Locabail v Bayfield Properties (HL) - could arise from

* A) personal friendship or animosity between the judge and a member of the public involved in the case,

* B) close acquaintance with such a member of the public, particularly where their credibility might be central to the case,

* C) the judge having dismissed the evidence of a witness who had appeared in a previous case in such terms as to throw doubt on his ability to approach such evidence with an open mind on this occasion,

* D) the judge pronouncing on any question at issue in the case in such extreme and unbalanced terms so as to throw doubt on his ability to try the issue with an objective judicial mind or

* E) real grounds, for any other reason, for doubting the ability of the judge to ignore extraneous consideration, prejudice and predilections and bring an objective judgment to bear on the issues before him.

* Spin Communications v IRTC (SC) - It must be established that there existed some external factor extraneous to and existing before the decision making process which could give rise to a reasonable apprehension that the decision maker might have been biased.

* O'Callaghan v Mahon (SC) - whether a reasonable person, with full knowledge of the circumstances, would consider that there are external factors which would cause the decision-maker to make a particular decision, or would inhibit him from making a decision impartially, as would give rise to a reasonable apprehension of bias. Test for apparent bias

* Traditional test: 'real likelihood' of bias - R (Donoghue) v Cork Co Co ()

* O'Donoghue v Veterinary Council (HC)

* reasonable suspicion of bias

* A member of the council, who had adjudicated on the case, had allowed his name to be used as a nominal complainant on behalf of the Minister for Agriculture.

* A reasonable man would think that an employee of the Minister who really made the complaint would not be impartial in adjudicating on the complaint.

* R v Gough (HL)

* allegations of a bias against a juror

* Real danger preferred to real likelihood test

* Court should act on possible rather than probable cases of bias

* Locabail v Bayfield Properties (CA)

* Reasonable suspicion test may be closer to requirements of the European Convention on Human Rights than the real danger test

* However in the vast majority of cases the result will be the same - provided the court personifying the reasonable man takes an approach based on





common sense, without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary reasonably well-informed member of the public, the test is sound. Radio Limerick One v IRTC (SC)

* The Commission was required by legislation to consist of people engaged in the media, which meant that in some cases it would not have the level of impartiality that would be required of a court of justice - this would not however vitiate its conclusions provided it reached them in good faith, having given the affected persons the protection of natural justice and fair procedures.

* It must however take all practical steps to free itself, not only of actual bias, but of the appearance of bias. Orange Communications v Director of Telecommunications Regulation (SC) reasonable apprehension test authoritatively recognised. Bula v Tara Mines (SC)

* whether a reasonable person in the circumstances would have a reasonable apprehension that the applicant would not receive a fair trial of the issues.

* A business or professional relationship that is sufficiently close and related to the subject matter of the proceedings may result in disqualification.

* If a judge was to be disqualified due to a prior client/counsel relationship there must be an additional factor which would give rise to a reasonable apprehension of bias and the link must be cogent and rational.

* There is a distinction between the reasonable apprehension test of Irish jurisprudence and the real danger test of R v Gough Rooney v Minister for Agriculture (SC)

* Case involved a farmer seeking a declaration that he was constitutionally entitled to compensation for the slaughter of his TB-infected cattle

* The case was heard in front of the Supreme Court on which O'Flaherty J sat, who had advised the IFA in the past.

* Prior client/counsel relationship will not generally disqualify a decision-maker

* An expression of a view of law as a legal adviser does not, without more, afford a basis to assume that that person will not later consider the matter with an impartial and unprejudiced mind to the same question of law in different circumstances.

Automatic disqualification

* Dimes v Grand Junction Canal Co.(HL)

* The Lord Chancellor heard a case involving a company in which he had a shareholding.

* Held, that these circumstances disqualified him from hearing the action and his judgment was set aside.

* This was done despite it being accepted that he had not been influenced by his position as shareholder.

* Dublin and County Broadcasting v IRTC (HC) - The Commission member had sought to divest himself of his shares, had bona fide believed he had done and most people would have believed this was the position - thus he was qualified to hear the action.

* R v Bow St. Metropolitan Stipendiary Magistrates, ex p Pinochet Ugarte (No. 2) (HL) * Once a judge has shown himself a party to a cause or having a relevant interest in its subject matter, he is disqualified without an investigation into whether there was likelihood or suspicion of bias.

* In this case, Lord Hoffman was disqualified due to his being a director of the Amnesty International Charitable Trust, whose beneficiary, Amnesty International, was a party to the proceeding, rendering him a judge in his own

cause. This case was unusual, because until then automatic disqualification only applied to cases of pecuniary or proprietary interest. Locabail v Bayfield Properties (CA) * Any expansion of the automatic disqualification rule beyond the bounds of now existing authority would inevitably limit the power of the judge and any reviewing court to take account of the facts and circumstances of the particular case.

* There may however be cases where an extension to the rule would be required to give effect to the principles underlying the rule. Orange Communications v Director of Telecoms Regulation (SC)

* Keane CJ:

* A review of English cases revealed that pecuniary or proprietary interest and, in some cases, even a non-pecuniary interest would result in automatic disqualification.

* All other cases call for an application of the test of reasonable apprehension of bias (though this is not expressly linked to the question of automatic disqualification)

* Geoghegan J

* Presumption of bias arises where there is a proprietary or some other definite personal interest in the outcome of the case.




Different standards depending on the decision maker

* O'Brien v Bord na Mona (SC) - bodies exercising an administrative function are subject to a laxer standard than those exercising a judicial function. There are certain functions which cannot practicably carried out with an air of judicial independence. An order for compulsory acquisition was held in this case to be one of those functions.

* Huntsgrove Developments v Meath Co Council (HC) * Beyond the duty to act fairly, an administrative tribunal need not adhere to the maxim nemo iudex causa sua.

* To impugne the decision, the applicants would have to show a real likelihood of actual bias on the part of the respondents.

* The provision of money by a third party company to allay the costs of carrying out a revision of the county development plan was not enough to establish this when the review carried out did not show that the third party was favoured.

* Carroll v Law Society of Ireland (HC) - The standard for domestic disciplinary tribunals is arguably not as strict as those imposed on courts, given their different functions - however a situation must not arise where a reasonable man would have reasonable fear that such a body was biased in making a determination on his case.

* Corcoran v Holmes (SC) - A decision making body, in particular a disciplinary body, ought not be allowed carry out its statutory functions if a reasonable person whose action was being considered would have a reasonable apprehension that the tribunal would be biased against him.

* Radio One Limerick v IRTC (SC) * Application of the nemo iudex maxim varies depending on whether the body concerned is a court or an administrative body exercising a quasi-judicial function.

* It is acceptable that there are times when bodies in the latter category have not the strict appearance of impartiality that would be expected of the courts.

* This case is a particularly good example, the statute creating the respondents requiring some of them at least to represent media interests, thus making the

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