1. To promote efficiency in administration.
2. To promote the
rights of individuals in society by checking the abuse of power.
It is therefore important that in running public affairs efficiently, public authorities should have due regard to individual rights. Administrative law has therefore developed a number of safeguards against the possible abuse of power. An individual who is aggrieved or likely to be detrimentally affected by an administration action may obtain redress for his / her grievance and forestall any injustice likely to be done using various methods provided under the law.
Brief background
Natural justice is a legal philosophy used in some jurisdictions in the determination of just, or fair,
processes in legal proceedings. It is sometimes taken as a process of
rational logical deduction. The
concept is very closely related to the principle of natural law (Latin expression of jus naturale) which has been applied as a
philosophical and practical principle in the
law in several common law jurisdictions, particularly the UK and Australia. According to Roman law certain basic legal
principles are required by nature, or so obvious
that they should be applied universally
without needing to be enacted into law by a legislator. The rules or principles of natural justice are now
regularly applied by the courts in both common law and Roman law jurisdictions. Natural justice
operates on the principles that man is basically good,
that a person of good intent should not be harmed, and
one
should treat others as
one would like to be treated.
Definition and principles
Natural justice may be simply defined as the natural sense of what is right and wrong. It has also
been referred to as fair play
in action. (Ridge v Baldwin) It has been recognised since time immemorial that delegation
of functions is accompanied with
designed procedures to reconcile
administration needs with safeguards for the individuals;
this entails among
others principles of natural justice.
In Local Government
Board Vs Arlidge
[1915] AC 120, House of Lords held that the common law rules of natural justice required little more from a department than the carrying
out in good faith of its usual procedures. The brief
facts of this case
were
that a Hampstead council had made
a closing
order in respect of a house which appeared unfit for human habitation. The owner appealed to the local government board as prescribed by the housing and town planning Act. A
public inquiry was held which confirmed the closing order. Arlidge applied to court contending that the decision was invalid because the board did not disclose which official actually decided the
appeal. That Arlidge had not been heard orally by that official and had not seen a report of the inspector
who conducted the inquiry.
While rejecting
the contention, the House of Lord held that parliament having
entrusted judicial duties to the executive body, must be taken to have intended to follow the procedure which was
its
own and was necessary
if it
was capable of doing its work efficiently. So long as the officials dealt with the question referred to them without bias and gave parties adequate opportunity
of presenting the case, the board could follow its own established procedures even though there not of court
of law.
The
right to a hearing in accordance with the rules of natural justice may be expressly provided for
or the courts may imply such an
obligation
exists under
common
law.
There are essentially
two sections to the rules of natural justice; the first being derived from the
Latin maximum "Audi alteram partem" (let the other side be heard). This is the duty
of to
allow persons affected by a decision to have a reasonable opportunity of presenting their case. The essence of this principle is that in certain contexts, prior to a decision being taken in the exercise of
statutory power which may adversely affect the interests of individuals, those individuals
should be alerted to the fact of, and the reasons for, the impending
decision or action, and be permitted reasonable opportunity to make representations.
The second part of the rules of natural justice is derived from the Latin maxim "nemo judex in causa sua" (no one can be the judge in his own cause). The essence of this principle is to disqualify persons having an interest in a matter over which they are presiding, or in respect of which there
may
be an appearance of bias, from taking certain types of decisions, thus rendering void such any
decision taken in breach of
the principle of natural justice. This gives rise to a duty to act fairly, to listen
to arguments, and to reach a decision
in a manner that is untainted
by
bias.
According to A. de Smith in his book Judicial Review of Administrative Action, "...The
governing principle ought to be that authorities empowered to make decisions that are seriously detrimental to the liberty, proprietary
rights, livelihood, status or reputation of individuals
should be required to give prior notice and opportunity
to be heard to those who are directly affected, except where the imposition of such duties would be impracticable or manifestly contrary
to the public interest or Parliamentary intent..."
It should be noted that the principle of natural justice has been embedded in the 1995 Constitution of the
Republic of Uganda and its
one of the non derogable rights.
Art. 42 of the 1995 Constitution
provides that any person appearing before any administrative
official or body has a right to be treated justly and fairly and shall have a right to apply to a court
of law in respect of any administrative decision taken against him / her. This is fortified
by
Art 28 of the 1995
constitution, which provides for a right to a fair hearing. It provides that in the determination of civil rights
and any obligation, or in criminal matter
a person shall be given a fair, speedy and fair hearing before an
independent tribunal
established by law.
Accordingly,
Article
44 of the Constitution provides inter
alia that notwithstanding anything
in the Constitution, there shall be no derogation from the enjoyment of the right
to fair hearing.
The duty to act fairly represents
the
standard of procedural administrative justice with which they will require compliance. In the words of Megarry V-C in McInnes V Onslow Fane [1978] 3
ALLER 211 at 219, ‘…if one accepts that ‘natural justice’ is a flexible
term which imposes different requirements in
different cases, it is capable
of applying to the whole
range of situations indicated by the terms
such
as ‘judicial’, ‘quasi-judicial’ and
administrative.’
As a result, judicial review may
be instituted on grounds of denial of natural justice and in such cases the court will mainly get concerned with the procedure by which the administration authority
reached a particular decision. The principles / rules of natural justice have there origin in common law
but they have also
been
codified under various statutes.
THE RIGHT TO NATURAL JUSTICE ANALYSED
fair hearing
The principle of natural justice is expressed in Latin as “audi alteram partem” which is translated as “hear the other side." Elaborate rules have been laid down to ensure that a party
to any proceedings can be
heard. In Grimshaw V
Dunbar 1
Q.B 408 at 416, Jenkins L.J said,
‘‘…a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent’s case
and
cross-examine his opponent’s witnesses and his own
evidence
before court. …that a litigant who is by
mischance or accidentally absent the common justice demands
that he/she should be allowed to come to the court and
present his
case.’’
Generally it means that no body shall be penalised by a decision of an administrative authority or
tribunal unless he / she
has been given fair opportunity to answer the case against him / her and to put his
/ her own case.
In Annebrit Aslund Vs
Attorney General HC Miscellaneous cause No. 441 of 2004, the applicant who was an employee of URA appeared and testified
before the commission of inquiry
into
allegations of corruption in U.R.A over which lady justice sebutinde had made a report and
submitted to the Minister of finance and economic development. The
application for
judicial
review was brought under
section 3 of the Judicature (Amendment) Act No. 3 of
2002. The applicant claimed that the lady
justice made baseless, biased and false findings that the applicant
was
incompetent to head a
big
financial institution like U.R.A
and prayed court to grant a
declaration that the sebutinde report is a nullity, an order of certiorari removing the
report into the High court in order to quash it and expunge it from archives of public records and an injunction
prohibiting any officer from taking action based on the report. At the hearing three points were raised by counsel for the respondents, that the High court was not clothed with jurisdiction to grant the orders sought, that the application was
misconceived for
want of locus.
The court held as follows,
• That in this case the very fact that the commission of inquiry
Act, Cap 166 states that in a few
instances, summoning witnesses, the commission was to exercise the powers of the High Court, shows that in other
aspects the Commission could not be equated to the High Court even when
presided over by a High court judge. A tribunal appointed under the commission of inquiry Act, is an inferior Court within the meaning
of rule 1 (2) Order XLII A of the Civil Procedure Rules
and
subject to the
control of
the High court through such writs as mandamus, certiorari and
prohibition.
• Held
that
a cause of action
is the fact or combination
of facts that give
rise to the right
of action. The
operational words of section 3 of the Judicature (Amendment) Act No. 3 of 2003 are ‘any
proceedings or matter’ which terms are wide enough to include
proceedings and report
of the commission of inquiry. They do not restrict the cause of action to a final enforceable decision,
therefore a remedy for judicial review is concerned not with the decision of which review is sought but with the decision making process. In this case, the application does not confine
itself to the relief
of certiorari
but also seeks a declaration and an
injunction.
• Held that locus standi refers
to the right to
be heard
in court or other proceedings.
The applicant
was
granted leave to apply for review. Under Order XLIIA of the Civil Procedure Rules,
the court is not to grant leave unless it considers that the applicant has sufficient interest in the matter to which
the application relates.
• Held that
in the instant case there had
been
breach of the
rules of Natural justice and procedure.
Further,
in Ridge Vs Baldwin (1964) AC 40
the plaintiff had (chief
constable of Brighton) had been prosecuted and acquitted on charges of conspiracy
to obstruct the course of justice. The Brighton watch committee which was responsible for enforcing discipline in the police force
purported to dismissed the plaintiff from his post, without
giving him any prior notice or hearing and applied to court contending that his dismissal was invalid. Court held that the decision was
void due to breach of
the principles of
natural justice. Lord Reid stated that ‘…the
principle of audi alteram partem goes back many centuries in our law…an officer cannot lawfully be dismissed without first telling him what
is alleged against him and
hearing his defense or explanation.’
NB. Importance of the
above case
• The significance of Ridge V Baldwin is that it helped to free both the substantive
rules of natural justice
from strict limitations which had been imposed in earlier decisions, in particular from the requirement that the decision-making body
must be under a duty to act judicially and also the remedy of certiorari.
The decision in the case may be compared with that in Nakkuda Ali V Jayaratne [1951] AC 66 (in this case the privy council had held that the controller of textiles in Ceylon had no duty to act judicially
in exercising his power to revoke licences to deal in textiles, this was because at that
time, certiorari could only lie against agencies which were under a duty to act judicially), which
was
disapproved in Ridge V Baldwin. The House of Lords made it clear that this duty
to ‘act
judicially’ arose directly from
the
power of an
agency to ‘determine questions
affecting the rights
of subjects’, i.e. the potential effect of the exercise of the power on the citizen’s interests, generates both audi alteram
partem obligation and
also the applicability of certiorari.
• The application of the
rules of natural justice to cases involving dismissal
from employment has
been extended since Ridge V
Baldwin and has now become a rule of general application.
• The requirements of a fair hearing depend on all circumstances. They
include; a right to notice,
but restrictions may be placed where public interest so requires, the right to legal representation or make
representations, whether in writing
or orally and where an oral hearing
is held, the right to
comment on any evidence presented, where evidence is given
orally by witnesses, the right
to put questions to those witnesses.
In Kaggwa Andrew V Minister of Internal Affairs HC
Misc. Application No. 105 of 2002, court held that the Minister’s decision would be quashed for
the applicant had not been granted a
fair hearing, that this
violated the principle of natural
justice.
In Cooper
Vs The
Wandsworth port
of works (1863), the port of
Worth demolished the
plaintiff's house without giving him prior notice or an opportunity to make representations
on his own behalf. The plaintiff's action succeeded and he
obtained damages for trespass. The court
emphasised that even where the statute applicable, doesn't specifically provide for notice or for an
opportunity to be heard a public authority is
under a duty to
apply the rule of natural justice.
In John Bosco Oryem V Electoral Commission and UNEB, it was held that quasi judicial bodies
have functions akin to a court or an arbitrator. That ‘if interests of an individual are going
to be affected, he must be given a hearing. Where quasi-judicial functions have to be exercised by a board or anybody
of persons, it is necessary and essential
that they must always give a fair opportunity
to those who are parties in the controversy
to correct or contradict any relevant statements prejudicial to their case.
Both
sides have a right to be heard and a decision in breach of
the principles of natural
justice is
void.’
In Eng. Pascal R. Gakyaro Vs Civil Aviation Authority CACA No. 60/2006, Court
of Appeal observed that the principles of natural justice demanded that he be given an opportunity to be heard in his defense for
whatever
worth it might be. That the overall effect of a
denial of natural justice to
an aggrieved party renders the
decision taken void
and of no effect.
In United Reflexologists of Uganda v Stephen Malinga and Anor, the minister of Health banned the practice of reflexology
in Uganda. He claimed that the banning was done in public interest to protect and
promote the health of the
peoples
of Uganda. The applicants claimed they were never
given a fair hearing. It was held that whereas a minister can act in the public interest that doesn’t
mean that those affected by
his decision do not have a right to be heard and should be grouped
together with those
who abuse the law.
This case is very relevant in the promotion of the principles of natural justice as it was to the effect that
the public interest does not trample
the right to be
heard as a principle of natural justice. As such,
the order of certiorari
was
granted quashing
the Minister’s decision.
In Prof Isaiah Omolo Ndiege v Kyambogo University, the applicant claimed the recommendation by the university council of his removal from office, and sending him on forced leave indefinitely before he was given a fair hearing was against the principles of natural justice. The judge granted
orders of judicial review of certiorari, mandamus and prohibition by holding that, the respondent University Council recommended the removal of the applicant from office without
giving him a fair
hearing and the
subsequent decisions to keep him out of office on forced leave indefinitely
were unfair, unreasonable
and unjustifiable.
\
In Denis Bireije v Ag, the applicant was removed from office on allegations of serious misconduct, abuse
of office and engaging in corrupt tendencies among others. The applicant sought a
declaration against the Solicitor General and his minister that his removal was for no cause, null
and
void and an order
that he resumes his office. He submitted
that he was never
warned , reprimanded or subjected to any disciplinary proceedings before being removed from office.
Justice Okumu Wengi held that the decision maker must act in accordance with the law, fairly and
reasonably, an administrative action will be subjected to judicial control for illegality, irrationality
and
procedural impropriety. That the removal of the applicant from office without
the chance to defend himself breached the cardinal rules of natural justice and therefore granted the order for certiorari, to quash
the decision and
a declaration
that
the
applicant was
free to resume
his office.
In Bwowe
Ivan and Ors v
Makerere University. The applicants were students of the respondent
university who were suspended for participating in a strike
in protest about a fees payment policy. They
applied for orders of judicial review of orders of certiorari, mandamus prohibition and
declarations. They contended that they were not afforded a fair hearing and that the disciplinary committee in reaching its decision acted with irrationality, procedural impropriety and was biased.
It
was held that the applicants right to a fair hearing was violated as they were charged under rules
which had not been publicised, they were served with sermons on the same day as the committee sat to try them and hence lacked sufficient time to seek legal representation and to prepare adequately for their defence. That the committee was biased as it was influenced by
the
vice chancellors comments in the media that some students would go home, by the presence of the dean of studies on the committee and also by
participation of police security officers during the disciplinary committee. That the applicants were not given an opportunity to cross examine their accusers. As a result the decisions of the disciplinary committee were quashed and orders sought by applicants
were granted.
The above case is of great relevance towards the promotion of the concept of natural justice. In his ruling judge Benjamin Kabiito stated that the right to a fair hearing is a right protected and
promoted as a fundamental right and freedom under article 28 of the constitution. He went further
and
gave the universal principles for a right to a fair hearing
which include prior notice, right to adjournment, cross
examination, legal representation, and
disclosure of information.
The case of Bwowe further emphasised that a decision arrived at in disregard of the rules of natural justice is null and void ab intio. The decisions of the disciplinary
committee in respect to the applicants
were declared null and void ab initio
Contents
of a right to a fair
hearing
Bwowe Ivan and
Ors v Makerere University,
in his ruling judge Benjamin Kabiito stated that
the
right to a fair hearing is
a right
protected and
promoted as a fundamental
right
and freedom under
article 28 of the constitution. He went further and
gave the universal principles for a right to a fair
hearing which include prior notice, right to adjournment, cross examination, legal representation, and disclosure of information. The case of Bwowe further emphasised that a decision arrived at in disregard of
the rules of natural justice is null
and void ab initio.
In ALEX METHODIOUS BWAYO v DFCU BANK
LIMITED court stated its view to be
that , the basics of a right to
be heard must of necessity include;
1) Notice of allegations against the employee
to be served on him within reasonable
time to allow him prepare his defence.
2) The notice has to set out clearly what allegations against the plaintiff are and what his rights are
at
the oral hearing. Such rights would include the right to
respond to the allegations against him orally or in writing; the right to be accompanied at the hearing and the right to cross-examine the defendant’s witnesses or call witnesses of his own. The plaintiff should be given a chance
to appear and present his case before an impartial
committee in
charge of disciplinary issues
of the defendant.
Court laid down some
principles in Juma & Others Vs Attorney General [2003] EA 461, which
was relied on with approval in Isaac Nsereko Vs MTN HCCS
No. 156 of 2012;
that;
“……. It is an elementary
principle in our system of the
administration of justice
that
a fair hearing, within a reasonable time, is ordinarily a judicial
investigation and listening to evidence
and
arguments, conducted impartially in accordance with the fundamental principles of justice
and
due process of law of which a party has had reasonable motion as to the time, place, and issues or charges, for which he
has
had a reasonable opportunity to prepare, at which he is
permitted to
have the assistance of
a Lawyer of his choice
as he may afford and during which
he
has a right to present his witnesses and evidence
in his favour, a right to cross-examine his
adversary’s witnesses, a right to be appraised of the evidence against him in the matter, so that
he
will be fully aware of the basis of the adverse view of him for the judgment, a
right to argue that
a decision be made in accordance with the law
and evidence.
1.
Notice must be given in adequate terms so that the prospective victim knows the essence of the case he has to meet and can prepare his answer properly. In Desouza Vs Tanga Town council, court held that
notice should include the substance of the allegations of the charge and it must specify the
time
and place where the
hearing is
to take place.
In Kampala University V National Council For Higher Education it was HELD that the right
to be heard is sacrosanct and none derogable under Article 28 (1) and 44 (C) of the Constitution
of Uganda. It
has
been
decided
over again by this court
to this effect. It is now settled that
it
a fundamental principle of justice and procedural fairness that no person is to be condemned
unless that person has been given prior notice of the allegations made against him or her, and
a fair opportunity to be heard.
It is apparent that the rule of natural justice obliges an adjudicator faced with the task of making a choice between two opposing
stories to listen to both sides. He should not base his decision only on hearing one side. Therefore where a prejudicial decision
has
been made by a public authority in the course of exercise
of its statutory authority without according the affected
party a right to
be heard then it has to be
quashed.
2. The parties must be given the opportunity to adequately
present their case. This includes the
right to have the matter
adjourned if injustice would otherwise.
In Kanda Surinder Singh Vs Government of Malaysia (1962) , Lord Denning stated “if the
right to be heard is to be real right which is worth anything, it must carry with it a right in the
accused man to know the case which is made against
him. He must know what
evidence has
been given and what statements have been made affecting him and then he must be given a fair opportunity to correct
or contradict them." See also In
Re M an infant
(1968) I WLR I 1897.
2. The
administrative authority has a duty to afford an oral hearing but in some cases
representations
may be made in writing.
In Chief Constable of the North Wales Police V Evans [1982] 1 WLR 1155 HL, the
Chief constable of North Wales decided that
Evans, a probationer constable
in the force, should
be required to resign or, if he refused, be discharged from the force. Evans resigned but subsequently challenged the decision on the ground that it was taken in breach of natural justice because he was not given an opportunity to offer any explanation. The House of Lords
agreed with the decision of Court
of Appeal that there had been a breach of natural justice, but in the light of comments made in the Court of
Appeal, felt it necessary to make some
comments on the scope of judicial review.
R Vs Local government Board
Exparte Arlidge (1914) I KB 160
R Vs Immigration
tribunal Exparte Mehmed (1977) I WLR 795
4. It also includes allowing
all
witnesses to be called to their respective parties and giving each party to cross examine each party's witness. In Ceylon University Vs Fernando (1960) I WLR
223, Supreme Court held that failure to afford audience or allow witnesses to be questioned / cross
examined breached the principles of natural justice and therefore the report of
the chancellor
was
null and void.
In Dent V Kiambu Liquor licensing Court [1968] EA 80, while noting that licensing courts were not mere executive bodies buts courts from which an appeal would lie to the High Court and must
be conducted in a manner
appropriate to judicial tribunals, held that this requires that there
is a requirement of production of proof of any matter referred to in evidence on oath or affirmation upon which the opposing party may put questions in cross-examination.
In R V Board of Visitors of Hull Prison, exparte St Germain [1979] 1 WLR 1401,
in this case, following a riot in Hull prison
in 1976, numerous charges of breaches of the prison rules were
heard by the prison’s board of visitors. During
the
hearing, reference was made to a number of statements by
prison officers, who were not available to give evidence, to support the evidence
given by a witness. Seven of the prisoners who were found guilty
of the offences against prison discipline sought an order of certiorari on grounds that the proceedings before the board of visitors
breached the rules of natural justice, to wit, that hearsay evidence was taken into account. While acknowledging
that it is common ground that the board of visitors should base its decisions on
evidence, the issue that arose was such evidence was restricted to that which was admissible in a criminal court
of law?
Geoffrey Lane LJ held that there was no restriction. (This view was also expressed by
the Privy Council in Ceylon University V Fernando [1960] 1WLR 223 at 234). The lord justice stated that,
it is the entitlement of the board to admit hearsay
evidence is subject to the overriding obligation
to provide the accused with a fair hearing. That depending upon the particular facts of a case and the nature of the hearsay evidence provided to the board, the obligation to give the accused a fair
chance to exculpate himself, or a fair opportunity
to controvert the charge or a proper or full
opportunity of presenting
his case and may oblige the board
not only to inform
the accused of
the hearsay evidence but also to give the accused a sufficient opportunity
to deal with that evidence. Further, that depending on the nature of the evidence and
the particular circumstances of the
case, a sufficient opportunity
to deal with the hearsay evidence may well involve cross-examination of
the witnesses whose evidence is initially before the board in the form of hearsay. Accordingly, court
quashed the findings of guilt
based on hearsay evidence by the order
of certiorari.
5. Means that
all relevant information from
whatever source it may come should
be disclosed to a person
who may be prejudiced by its
concealment.
However, does the kind of evidence admissible have any limits? In R Vs Deputy industrial
injuries commissioner Exparte Moore (1965) I QB 456, at 488 Diplock LJ stated that, ‘technical
rules of evidence, however, form no part of the rules of natural justice. The
requirement that a
person exercising quasi-judicial functions must base his decision on evidence means no more than it
must be based upon material which tends logically to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not
spin a coin or consult an astrologer, but he may
take into account any material which, as a
matter of reason, has some probative value in the sense mentioned above, the weight to be attached to it is a matter for the person to whom parliament has entrusted responsibility of deciding the issue.
In R V Army Board of the Defence Council, exparte Anderson
[1991] 3 W.L.R 42, in this case the applicant was a former soldier who alleged that he
had been subjected to
forms of racial abuse which caused him to go absent without leave. The papers relating
to the complaint were seen separately by two members of the army
board who reached individual conclusions that, although there was some truth in the applicant’s claim,
there was no basis for making
an apology to him
or awarding him compensation. The applicant’s request for disclosure of documents
relating to investigations into his complaint was refused, as was his request for
an
oral hearing. He applied
for judicial review. Taylor LJ. Stated that a body required to consider and adjudicate upon an alleged breach of statutory rights and to grant redress when necessary seems to be exercising an
essentially judicial function and as such is required to follow the rules of natural justice. While
refuting the submission of
defendant’s
counsel that
the
Army board’s duty of fairness required
no more than that it should act bona fide, not capriciously
or in
a biased manner, and that it should
afford the complainant a chance to respond to the basic points put against him, noted that the Army
board was bound by
its
procedures achieve a high standard of fairness more than it had asserted. The
Lord Justice
laid down the principles
as follows;
• There must be a proper hearing of the complaint in the sense that the board must consider a single adjudicating body, all the relevant evidence and contentions before reaching
its decisions. That it is unsatisfactory that the members should consider the papers and reach
their individual conclusions in isolation and,
perhaps as here, having
received the concluded
views of another
member.
•
That a hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by
statute are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing.(re-stated in Local Government V Arlidge [1915] AC 120 at 132-133 and Selvarajan V Race Relations Board [1975] 1 WLR
1686 at 1694). That whether
an oral
hearing is necessary will depend
upon the subject matter and circumstances of the
particular case
and
upon the nature
of the decision to be made. That it will also depend upon whether there are
substantial issues of fact which cannot be satisfactorily resolved
on the available written evidence. That this does not mean that, whenever there is a conflict of evidence in the statements taken, an oral
hearing must be held to
resolve
it.
• The opportunity
to have evidence tested by cross-examination is to be observed. But in
this
case, it was within the
discretion of the army. The
discretion whether to
allow it will usually be inseparable from the decision whether to have an oral hearing. That the object
of the latter will be to enable witnesses to be tested in cross-examination, although it would
be possible to have an oral hearing simply to hear submissions.
• That whether oral or not, there must be what amounts to a hearing of any complaint. That in this case it meant the Army board had to give such a complaint investigated, consider all the material gathered, give the complainant an opportunity to respond to it and consider
his response. However an issue
arose as to what was the
obliged to disclose to the complainant to obtain his response? That was it sufficient to indicate the gist of
the any material adverse to his
case or should he be shown all the material seen
by
the board? The Lord
Justice held that the complainant should be shown all the
material seen by the board, apart from any documents for which public interest immunity can be properly claimed. The
board was not making an administrative decision requiring
it to consult interested parties
and
hear their representations. It had the duty to adjudicate on a specific complaint of breach of a statutory right. Except where public interest immunity is established, there is
no reason why on such adjudication the board should consider all material withheld
form the complainant. In this case, the complainant was only shown part of the materials and
court
held that this hampered his response due to lack of full information and thus breached rules
of natural justice.
6. Right to legal
representation
- Pett Vs Greyhound
Racing Association Ltd
(1970) I KB 46
In Enderby Town Football Club Ltd Vs The Football Association
Ltd (1970) 3 WLR 1021,
Court held that denial of legal representation is not necessarily breach of natural justice. Lord Denning MR. at 607 stated thus, ‘Seeing that courts can inquire into the validity of the rule, the question is; is it lawful for the body
to stipulate in its rules that its domestic tribunal shall not permit legal representation? Such a stipulation
is, I think, clearly valid so long as it is construed as
directory and not imperative: for that leaves it open to the tribunal to permit legal representation
in an exceptional case when the justice of the case so requires. But I have some doubt whether it is legitimate to make a rule which is so imperative
in its terms as to exclude
legal representation altogether, without giving the tribunal discretion to admit it, even when the justice of the case so
requires.’
Regarding the legal representation
the reviewing court will normally establish procedure, the practice adopted by the tribunal or authority whose decision is reviewed. Thus, where it has been allowing legal representation, it should do so for every
body but where it has not been doing so, the denial
won't
amount to breach of natural
justice.
7. Although not established by
any
legal authority, it has been recommended that a right to a fair
hearing includes disclosure
of the relevant in formation to the party that would be affected by the
decision. (per Wade;
6th
edition; pages 547-50).
R Vs Industrial injuries commissioner .Exparte Moore
( 1965) 1 QB 456
In Ridge Vs Baldwin, Lord Reid stated that before attempting to reach any decision, they should
inform the person of the grounds upon which they propose to act and give him an opportunity of being heard in his own defense.
In Byrne Vs Kinematograph Reuters Society [1958]1 W.L.R 762, Harman J stated requirements
of natural justice as a
person accused should know the nature of the
accusation made
and
should be given opportunity to state his case and
that the tribunal should act in good faith.
Suffice to note that there is no strict specific procedure laid down to be followed under natural justice
while carrying out administrative
duties and functions, but the requirements of fairness depend on the facts of each case. The question that arises is, what then, are the criteria by which to decide the requirements of fairness in any
proceeding? Authoritative guidance as to this was
given by Lord Bridge in Lloyd V McMahon [1987] AC 625 at 702, where he said, ‘…the rules
of natural justice are
not engraved on tablets of stone. What the requirements of fairness demand
when any body, domestic, administrative or judicial, has to make a decision which will affect the
rights of individuals depends on the character of
the decision making body, the
kind of decision it has to make and the statutory or other
framework in which it operates. In particular, it is well
established that when a statute has conferred on any body
the power to make decisions affecting individuals, the courts
will not only require the procedure prescribed by the statute to be followed,
but will readily
imply
so much and no more to be introduced by way of additional procedural
safeguards as will
ensure the attainment of fairness.’
Circumstances
under which the
right to a fair hearing
may be excluded
The
right to a fair hearing is not absolute in administrative proceedings and may
be excluded in the following cases;
1. Where factors such as urgency
come into play e.g. urgent action may be needed to safeguard
public health/ safety in
the case of White Vs Redfern (1879) 5 QB 15. The right
to a
fair hearing was excluded where there was agent need to protect public health and destroy
bad
food that was
exposed for
sale.
2. It may be excluded where considerations of national security must be taken into account.
This should be considered in light of Article 43 of the Constitution. It provides inter alia that, in the enjoyment of the rights and freedoms
prescribed in the constitution, ‘no person shall prejudice the
fundamental or other human rights and freedoms of others or the public interest. It states further that public interest under this article
shall not permit political persecution; detention
without trial and that any
limitation of the enjoyment of the rights and freedoms prescribed by this Chapter
beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.
In Council of Civil Service
Unions Vs Minister for the Civil Service (1895) AC 374, the facts
of this case were as follows;
the Government communications headquarters(GCHQ), a branch of
the civil service responsible
for the security of the
UK military and official communications and
the
provision of signals intelligence for
the government.
Since its formation all the staff
had
been permitted to belong to trade unions. There was an established practice of consultation
between the management and the civil service unions at GCHQ. Following
incidents of industrial action at
GCHQ the Minister for civil service, the Prime Minister, issued an oral instruction to the effect that
the terms and conditions of civil servants at the GCHQ should
be revised to exclude membership of any trade union other than a departmental staff association approved by the Minister. The union applied for judicial review, seeking
a declaration that the Minister had acted unfairly in removing their fundamental right to belong to a trade union without consultation. The case was ruled in favour of the applicants and the Minister appealed to the
Court of Appeal which allowed
his appeal and the appellants appealed to the House
of Lords.
Having held that the courts have power to review the exercise of a power delegated to the decision-
maker under the royal
prerogative, Lord Fraser of Tullybelton stated that, the respondent’s case
is that she deliberately made the decision without
prior consultation because
prior consultation
‘would involve a real risk that it would occasion
the very kind of disruption at GCHQ which was
a threat to national security
and
which it was intended to avoid.’ That the ‘question is one of
evidence. The decision on whether the requirements of national security outweigh the duty of
fairness in a particular case is for the Government and not for courts; the Government alone has access to the necessary information, and in any event the judicial process is unsuitable for reaching
decisions on national security. But if the
decision is successfully challenged, on
ground that it has been
reached
by
a process which
is unfair, then the Government is
under an obligation to produce evidence that
the
decision was in fact based
on national
security.’’ The lordship concluded that
in this particular case the respondent had shown that her decision was one which not only
could reasonably
have been based, but was in fact based, on considerations of national security, which outweighed what would otherwise have been the reasonable expectation on that on the part of the
appellants
for prior consultation.’
In R V Secretary of state for the Home Department, exp Hosenball [1977] 3 ALLER 452, the considerations of national security
were held to limit very
substantially
the
obligations of audi
alteram partem. In this case, Hosenball, a US citizen, challenged a deportation order that had been
made against him by
the Home secretary
deeming his deportation to be conducive to the public
good as being in the interests of
national security. Hosenball challenged
the voluntary
procedure as not conforming to natural justice. In particular Hosenball drew attention to the fact
that he had not been given any detailed information as to the exact allegations against him, and that
the security advisers had information
before them from the intelligence service which they did
not make available to him. Although he had been permitted to make
representations, the value of the opportunity was rather limited because he did not know precisely
the
charges against him
(something that audi alteram partem
would have required). The Court
of Appeal denied that
there had
been any breach of natural
justice.
The
Court contrasted the normal procedural rights afforded to persons against whom serious action
was
to be taken, with the
more limited protection in a case such as this. As Lord Denning MR said in the above case;
‘…this is no ordinary
case. It is a case in which national security
is involved, and our history shows that, when the security of the state is endangered, our cherished
freedoms may have to take second place. Even natural justice may suffer a set-back….spies,
subverters and saboteurs may be mingling among us, putting on most innocent exterior. They may
be endangering
the lives of men in our secret service, as Mr. Hosenball is said to do…If they
are
foreigners they can be deported.’
3. Where an employer summarily dismisses an employee the right of a fair hearing is excluded unless contractual or statutory procedural duties are cast on the employer, the court can only grant
an
employee damages for breach of contract if the dismissal is wrongful but can not declare the
decision to dismiss null
and void.
Mallock
Vs Aberdeen Corporation
(1971) 1 WLR 1578
Musisi Vs Greenlays Bank.
NB. Bearing in mind Art 44; it is not consistent with the constitution, this is done for administrative
expediency.
Effects
of failure to
observe natural justice
The effect is that a decision given in disregard of the principles of natural justice is void. It may
lead to the quashing of the decision and damages may ensue from such proceedings. In Kaggwa
V Minister of Internal Affairs, HC Miscellaneous application No. 105 of 2002, the Minister’s decision was
quashed because the applicant had not
been granted a fair hearing. In Annebrit
Aslund V A.G, HC miscellaneous cause No.
441 of 2004, Katutsi J quashed the URA
report
because it flouted principles of
natural justice.
THE RULE AGAINST BIAS
The second part of the principle of natural justice is derived from the Latin maxim "nemo judex in causa sua" meaning no one can be the judge in his own cause. This gives rise to a duty to act fairly, to listen to arguments,
and to reach a decision in a manner that is untainted by
bias. There can never be a fair trial where the adjudicator has an interest in a case or matter. There are 2 aspects
to the rule against bias;
1. That the adjudicator must not have any direct financial or proprietary interest in the outcome of
the proceedings.
2. An adjudicator
must not be reasonably suspected or show
a real likelihood
of bias.
Financial or pecuniary interest
No
matter how small the adjudicator's pecuniary interest may be or no matter how unlikely it is to affect his
judgement,
he is
disqualified from taking part in making a decision. Any decision
made in such circumstances will be
set
aside. In Leeson V General Council of Medical Education (1889) 43 Ch.D 336, court stated thus, ‘…a person who has judicial duty to perform disqualifies
himself from performing it if he has a pecuniary interest in the decision which he is abut to give
or a bias which renders him otherwise than an impartial judge. If he has a pecuniary interest in the success
of the accusation he must not be a
judge.’
The same principle applies when the pecuniary interest is that of the adjudicator’s wife or other close relatives. Likewise the adjudicating officer should disqualify himself from the proceedings
if he has any substantial pecuniary relation with a party, even if that relation is not directly at issue in the
case. Of course this principle
cannot be carried
to its logical extreme, otherwise all
adjudicators would withdraw from all matters. But in general an adjudicating
officer should be very wary
of participating in a case where his pecuniary relations
with a party might appear to affect his
decision.
In Dimes Vs Proprietors of Grand Junction Canal proprietors (1852) 3 HLC
759, a decree made
by the Lord Chancellor was set aside because he was holder of shares in the company which was a party
to the proceedings. The brief facts were as follows.
Lord Cottenham was Lord
Chancellor of England and held 92 shares in a company called G,.J. Canal worth thousands of
pounds. There was a dispute
between a man called Davies and the company. The company applied
for an injunction restraining Mr.
Davies’ conduct in putting
a bar across the canal, which he claimed to be his property. The application was granted and there was an appeal to Lord Cottenham as Lord Chancellor, the decision was affirmed, Mr. Davies losing his appeal. Lord Cottenham had
not disclosed
that he was a shareholder of the company. T was held by the House of Lords that the
Lord Chancellor was disqualified from acting as a judge in the cause on ground of interest and the
decree was set
aside.
L.C.J., Lord Campell said, ‘‘No one can support that Lord Cottenham could
be, in the remotest
degree influenced by
the
interest that he had in this concern; but it is of the last importance that
the maxim that no man is to be
a judge in his own cause
in which his own cause should be heard is sacred. And that
is not to be confined to
a cause in which
he is a party,
but applies to a cause in which he or she has an interest. ….We have
again and again set aside
proceedings in inferior
tribunals because an individual, who had an interest in a cause, took part in the
decision. And
it will have a most salutary influence on these tribunals when it is known
that this high court of last resort, in a case in which the lord chancellor of England had an interest, considered that this decree was on that account a decree not according to law,
and
was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest
but to avoid the appearance of labouring under
such an influence.’’
Non pecuniary interests
In some cases there may exist some kind of
relationships between the adjudicator and one
of the parties that might lead to a biased
decision. The
test to be applied
are
;
1. Is there a real likelihood
of bias?
2. Is there a reasonable
suspicion
of bias?
NB.
There is no need
to prove actual bias. Examples
of cases where a likelihood
of bias led to the decision being set aside are
hereunder discussed. The locus cluscus on the subject of bias is the
case of Libyan Arab (U) Bank & another
V Adani Vassilads CACA No. 9 of 1985, Odoki JA
(as
he then was quoted article
126 of the Constitution, then
15 (9) )and stated that
the provision lays down the requirements for
a fair trial, that court
must be independent and impartial.
He held that bias may
be established against a person sitting in a judicial capacity on one of the two grounds;
(a) direct pecuniary interest
in the subject matter,
(b) bias in favour of
one side against the
other.
That bias means a real likelihood of
an
operative
prejudice whether conscious or not.
That in considering the possibility of bias it is not the mind of the judge which is considered but the
impression given to reasonable persons. Justice Odoki, JA (as he then was), stated that, ‘there must be reasonable
evidence to satisfy the court that there was a real
likelihood of bias. Objection cannot be taken at everything that
might raise a suspicion in somebody’s mind or anything which
could make fools suspect. There must be something in the nature of real bias, for instance evidence
of proprietary
interest in the subject matter before court or a likelihood of bias based on close association
with one of the parties
as
was the case in Tuman V
R.’
His lordship
held that in this case ‘there is no reasonable evidence to satisfy
me that there was a
real likelihood of bias on the part of
the learned trial judge. There was no evidence
or even suspicion that he had a direct pecuniary
interest in the subject matter of the suit. There was no evidence that he was likely
to favour the respondent against the appellant; and even if the trial judge may have been thought to have formed some opinion before hand on the case, it is not
enough to establish bias. The allegation of bias was a mere conjecture.’ That the appellants should have raised a preliminary objection the trial and even if it were overruled, he should as the trial judge remarked in his judgement have continued with the hearing and made it a ground of
appeal. The
appellants abandoned the hearing
because they suspected that the trial judge had prejudged the case against them before
hand. That the burden of proof lies on the party refusing to continue
trial to satisfy court of appeal that he was justified in his apprehension that it would be futile for
him to continue and that had he done so he would not
have had a fair hearing.
In Brassington V Brassington [194] 3 ALLER 988 at 990, Holroyd Pearson L.J stated thus,
‘Before considering the
effect
of the remarks of which
a complaint is made,
we must observe that only a very strong case indeed could justify a refusal by a party to continue to take part in the trial.
If
a party though aggrieved, continues to present his evidence and arguments he can always reserve
his complaint and appeal against the unfair decision when it has been given. And any remarks which show that the tribunal prejudged the case against him before he had called his evidence will always in this court add very great weight to the substance of the appeal and may in themselves constitute a sufficient ground of appeal. The aggrieved party
will then atleast have shown that he
has a genuine case on which
he either ought
to have or
could have succeeded.
In Metropolitan Properties Co. F.G.C Ltd V Lannon (199)1Q.B 41, Lord Denning stated that,
‘in considering whether
their
was
a real likelihood of
bias, the court does not look at the
mind
of the justice himself or at the mind of the chairman of a tribunal or whoever it may be who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would or did, in
fact
favour one side at the expense of the other. The court looks at the impression which would be given
to other people. Even if he was impartial as could be, nevertheless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should
not sit and if he does sit, his decision cannot stand. Nevertheless there must appear to be a real likelihood of bias. There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman as the case may be would or did favour one side unfairly.
The court will not inquire whether he did in fact favour
one side unfairly. Suffice it that reasonable
people might think he
did.
The reason is plain enough. Justice
must be rooted in the confidence and
confidence is
destroyed when right minded
people go a way thinking the
judge was biased.’
In Patel V
Joshi [1952]19 EACA 42,
Court of Appeal held that a judge
should not descend into
the area where his vision
may
be clouded by dust of
conflict, but an appellate court
will
refuse a
retrial unless it is convinced that the
vision of the judge had become so clouded-excessive
intervention.
An example
of actual bias is to be found in the Uganda Judicial Code of Conduct
(2003), principle 2.4 provides that a judicial officer shall refrain from participating in any
proceedings in
which the impartiality
of the judicial officer might be reasonably questioned. It states further that
without limiting the generality of the foregoing a judicial officer shall disqualify
himself from
participating in any proceeding where he has personal knowledge of the disputed facts concerning
the proceedings or where a member of the judicial officer’s family is representing a litigant, is a
party, or has an interest in the out come of the matter in
controversy, in the proceedings. In R V
Rand (1966) L.R 1 Q.B. 230, the judge stated that,
‘wherever there is a real likelihood that a judge would,
from kindred or any
other
cause, have a bias in favour of one of the parties, it would be very strong for him to
act.’’
In relation to disqualifying
oneself as a result of the probable bias, it was stated in Leeson V
General
Council of Medical
Education, (1889) 43 Ch.D. 366, that ‘…a person
who has judicial duty to perform disqualifies himself from performing it if he or
she has a pecuniary interest
in the decision that he
or she is an=bout to give or a bias that renders him otherwise than
an impartial
judge. If she or he has a pecuniary interest in the success of the
accusation he or she must not be a judge.’
NB. This equally applies where a judicial officer or chairperson of a tribunal has any
pecuniary relation
with a party, even if that
relation is not directly at issue
in the case.
Note
that mere suspicions should not outweigh and influence the justice of
the case, otherwise the essence of the rule against bias will be lost. As was noted in the Australian case of Re JRL, exparte CJL,
(1986) 161 CLR 342 at 352 Mason J,
sitting in the High Court of Australia, said, ‘Although
it is
important that justice must be seen to be done, it is equally
important that judicial officers
discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they
will have their
case tried by someone
thought to be more likely to decide the case in their favour.’ This is fortified by the Clenae case [1999] VSCA 35 Callaway JA observed thus, ‘As a general rule, it is the duty of a judicial officer to hear and determine
the cases allocated to him or her
head of jurisdiction.
Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application.’
In addition, principle 5.1 of the Judicial Code of
Conduct provides that a judicial officer shall not
in the performance of judicial duties,
by
words or conduct
manifest
bias
or prejudice towards any
person or group on the basis of
unjust discrimination.
The rationale for the apparent strictness of the rule is one of public policy. In Serjeant V Dale
(1877)2Q.BD 558 at 567, court said, ‘‘The law in laying
down this strict rule, has regard, not so much perhaps
to the motives which
might be supposed
to bias the judge, as to the
susceptibilities of the litigant parties. One important object, at all events is to clear away everything which might engender suspicion and distrust of the tribunal, and so to
promote the feeling
of confidence in the administration
of justice which is so essential
to social order and security.’’
Hence, the dictum of Lord Heward C.J in R V Essex JJ. Exparte McCarthy (1924) 1 KB 256,
‘Justice
should not only be done, but be manifestly seen to be done.’ In that case, the
police charged the applicant with dangerous
driving. As is known,
in England, justices of the peace sit with a qualified clerk. At the hearing, the acting clerk happened to be a member of the firm of
solicitors who were acting for someone who was claiming damages from the applicant for personal injuries he
received in the collision. The justices retired to consider their decision and the acting
clerk went out of court with them,
in case they wanted any guidance on the law. The applicant was
convicted. An affidavit
was sworn that the acting clerk was not in fact consulted.
The conviction
was
quashed for, it was held to be improper for the clerk to be present with the justices
when they were
deliberating on their decision, when his firm’s interest in the case was borne in
mind. It was not necessary
to establish bias in fact and the result would have been the same even if the clerk had
not known that his firm was acting professionally.
The test for actual bias is subjective while
the test for perceived bias is objective. Perceived bias refers
to a situation where an impression could be created
to a
reasonable person that the judicial officer is not impartial. It is not the mind of the judge that is considered but rather
the impression given
to reasonable persons. See
Tumaini V Republic [1972] EA44. In Blasio Sengendo & another
V Uganda [1994] IV KALRN 133, Tsekooko J held that inter alia that the inference of bias must be as to what a reasonable man would think given the set of circumstances. That if the
reasonable man would think that the magistrate did favour one side unfairly
at
the expense of
another, then bias is proved.
In Bwowe Ivan and ors v Makerere University; the
judge gave the test for bias as being categorised into two that is actual bias and constructive bias.
Bias was defined as a
state of mind which prevents a
tribunal from making an objective, independent and impartial determination of the issues that it has to resolve
NB. Impartiality is a question of perception and there are three instances a judicial officer should be
alive to;
(i) Perceived conflict of interest. (ii) Behaviour (inside and outside court). (iii) Associations and
activities outside court. Conflict of interest arises where there is probability
of advancing or
promoting the personal or interest of others in a manner which compromises fairness and the entire
judicial
process.
This has already been discussed in the preceding paragraphs.
1. Where the
adjudicator was a member of an
organisation
that
was a party to
the
proceedings.
In Hannam Vs Bradford Corporation 1970) 1 WLR 937, an education sub-committee had confirmed had confirmed the decision by
the
governor f the school to terminate a teacher's employment. Held the decision was quashed by the court because of the fact that the 3 members of the
sub-committee were also governors of
the school gave rise to the possibility of
bias.
2. Where extra-judicial pronouncements
reveal that
an adjudicator was
partisan.
R Vs Halifax justices
exparte Robinson (19120 76 JB 233
Ashumd Vs AG
3. Where there is
personal friendship or hostility towards
one of the parties.
In White
Vs Kuzych 1951)
AC 585, the respondent a
member of the appellant trade union
was found guilty on charges alleging breach of Art 2 of Bye laws of the union including committing
acts
discreditable to it in publicly opposing established policies of the union by campaigning against the
closed shop principle. He (...............) was provided with an option of an appeal after exhausting al remedies from the findings in the report and the resolution of his expulsion that he
had
not been validly expelled from the membership. He claimed that the decision was biased and breached natural
justice and even
intimidation. Court held that
the conclusion reached was a
decision even if it was tainted with / by bias or prejudice or arrived at in defiance of natural justice
and even if the voting of some members might have been
reached/ affected by intimidation.
In R V Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [2000] 1
AC 119, Lord Browne-Wilkinson stated thus, ‘‘…the fundamental principle is that a man may
not be a judge in his own cause. This principle as developed by courts has two very similar but not
identical implications. First it may be applied literally; if a judge is in fact a party to the litigation or has financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way
his conduct or behaviour may give rise to a suspicion that he is not
impartial, for example because of
his friendship with a party….’’
According to De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th edition (1995) at p.525, once it is shown that the judge is himself a party
to the cause, or has relevant interest in its subject matter, he is disqualified without any
investigation into whether there was a likelihood or suspicion of bias. The mere
fact of his interest is sufficient to disqualify
him unless he has made sufficient
disclosure.
4. Where a person
is likely to be a witness
in the proceedings,
he
can not be a judge.
Ndegwa Vs Nairobi liquor licensing court.
NB. The test of likelihood
or reasonable
suspicion of bias must be applied realistically.
In
Sikabuza Vs The Director of Survey, the applicant's licence had been cancelled by the survey
licence board on grounds of professional misconduct, he appealed on the basis that the composition of
the board did not meet the standards of natural justice. The composition of whom were surveyors and 3 other members, 2 of whom were surveyors. The applicant contended that the 2 surveyors on the
board were his competitors in the business and were therefore sitting in judgement of their own cause. Court held that the mere fact that an interested party sits on the disciplinary body, which applies professional standards does not necessarily conflict with the maxim that no man be judged
in his own cause.
Similar reasoning
was
applied in the case. Re-s- a barrister (1981) QB 683, where court held
that a solicitor could adjudicate in a matter brought by the council of the
law society.
The need to apply the test realistically also means that political affiliations of the adjudicators are usually not
taken into
account.
Where it is found that there is a real likelihood or a reasonable suspicion of bias, the adjudicator is
disqualified from presiding
over the matter. The rational for such disqualification is based on the principle that public confidence in the administration of justice must not be impropriety. The rule
looks to the appearance of the matter to an outsider.
According to the case of R Vs Sussex Justices Exparte McCarthy (1924) 1 KB 256, the
issue of appearance of the matter to an outsider is not that would a member of the public looking on the
situation as a whole reasonably
suspect that a member of the adjudicating body would be biased. The
court must ask itself whether a reasonable person viewing the facts would think that there is a
substantial possibility of bias
therefore the question is
not whether the judge is
likely to be biased
but whether he is likely to
be seen as biased.
Consider this hypothetical case and answer the question: The adjudicator applies for a job with an organisation one of whose members is going to be called as an expert witness
by one of the parties to the proceedings. Would
the
adjudicator be disqualified
for bias?
The
answer is to be found in Re- medicaments and related classes of goods (2001) 1 WLR 700,
this was a matter relating to the prices of certain medicines before the restrictive practices court of
England. An administrative tribunal with the membership consisting of a high court judge and lay people who were also experts in accountancy and economics was constituted. During
the
hearing one of the members of the tribunal, a doctor(R) approached an economic consultancy
firm to ask if
they would consider employing her. She later realised that
one of the directors of the firm
a Mr. B was an expert witness on
behalf of the applicant in
the case. She said she had forgotten this at
the time of making the application; she consulted
the presiding judge and other members of the
tribunal and sent a statement to both parties advising them
of the situation. In the statement, she said that because of her involvement in the case
as
a member of the tribunal and Mr. B's involvement as an expert witness her application for the vacancy
could not be pursued until the
conclusion of
the case. Never the
less, the respondent appealed on
grounds that there was a
reasonable suspicion of bias. The H.O.L held that in applying
the test for bias, it would in deed appear to an ordinary person that there was a likelihood of bias and that on those grounds doctor
R should have disqualified
herself from presiding over
the matter.
Lord Phxillips, MR. in the above case stated that the test
is the reasonable apprehension test
and noted that it is by far the most appropriate test for protecting the appearance of impartiality. Lord Phillips
distinguished the test of real likelihood and reasonable apprehension/suspicion and preferred the latter. He stated that, ‘…the premise on which the decisions in this court are based is that
public confidence in the administration of justice is more likely
to be maintained if the court adopts a test that reflects a reaction of the ordinary reasonable member of the public to the
irregularity in question. References to the reasonable apprehension of the lay observer, the fair minded observer, the fair-minded, informed lay observer, fair-minded people,
the reasonable or
fair-minded observer,
the parties or pubic,
and the reasonable
person abound in the decisions of the court. They indicate that it is the court’s view of the public view, not the court’s own view,
which is determinative. If
public confidence in the administration of justice is to be maintained, the approach that is taken by a fair-minded and informed members of the public cannot be ignored.
His lordship concluded
that ‘…the court must first ascertain all the circumstances which have a
bearing on the suggestion that
the judge was biased.
It
must then ask whether those
circumstances would
lead a fair-minded and informed
observer to conclude
that there was a real possibility, or real danger, the two
being the same,
that the tribunal was biased. The material circumstances will include the explanation given by
the judge under review as to his knowledge or appreciation of
those circumstances. Where that explanation is accepted by the applicant for review it can be
treated as accurate. Where it is not accepted, it becomes one further
matter to be considered from the
viewpoint of the fair-minded observer. The court does not have to rule whether the explanation
should be accepted or
rejected.
Rather it has to decide whether or
not the fair-minded observer
would consider that there was a real
danger
of bias notwithstanding the explanation advanced.’
NB.
Sometimes it is proposed
that the question upon which
the court must reach its own factual conclusion is this, is there a real danger of injustice having occurred as a result of bias? By ‘real’ is meant not without
substance. A real danger clearly involves more than
a minimal risk, less than a
probability.
It is submitted that injustice will occur as a result of bias if the decision-maker unfairly
regarded with
disfavour the case of a party
to the issue under consideration by him. I would take ‘unfairly regarded with disfavour’ here
to mean ‘was pre-disposed or prejudiced against one party’s case
for reasons unconnected with the merits of the issue.’ It should
be noted that this kind of approach
was
criticised in the Re Medicaments case above.
Court noted therein that
it is the hypothetical rather than the actual test of the likelihood of
bias to be applied.
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