Constitutional and Administrative Lecture 24.01.19
What is a fair hearing?
Tucker LJ’s quote in Russell v Duke of Norfolk-administrative law is all about context; differs
in cases; law applied differently.
What is the content of a fair hearing?
Notice of the charge(information of the case against him/her)do you have to be
informed about what’s going to happen to you? “Rule of law requires that a
constitutional state must accord to individuals the right to know of a decision before
their rights can be adversely affected” (Lord Steyn in R v Secretary of State for the
Home Department, ex p Anufrijeva); core requirement of natural justice=have to be
informed. How much information must be given?
1. R v Gaming Board, ex p Benaim and Khaida=B&K applying for a certificate of
fitness to open a casino in London; not given that license by Gaming Board;
reason=they have a history of associating with criminals; when they refused
licence THEY DON’T TELL B&K WHY; cite it’s public interest reasons; go to
court because they want to be able to respond to allegations against them
and to find reasons; need enough info. to respond and courts agree to this;
need to be told the ‘gist’ of the case against them (Denning); don’t need to
know everything; Gaming Board said they didn’t give all the info. to protect
the source (reason wasn’t good enough; don’t need to be given confidential
info); need to be given enough info. to respond/explain their situation/put
up a case in defence; Denning-pragmatic balance; may be good reasons why
you can reveal all of info. In terms of legal certainty-‘gist’ varies from case to
case.
2. L v West London Mental Health Trust=L was a patient in a secure hospital
being moved to a high security hospital; solicitor not given notice about
meeting that was arranged by psychologists to assess whether or not he
should be moved; not allowed to attend/state a case; court ruled it wasn’t a
fair hearing in the division court/high court/court of appeal; judges in court
of appeal said it’s more flexible than that (doesn’t need to be told all info.;
just enough for patient to know what’s going on to know what’s going and
to be able to respond to charge)
3. Bourgass v Secretary of State for Justice-decisions related to solitary
confinement in prison; first decision to put someone in Solitary Confinement
for up to 72 hrs (no issue; natural justice doesn’t require specific process to
be put into place); decision to put them in for longer than 72 hrs was serious
and required a fair hearing; decisions made by panels; Bourgass out into
Solitary Confinement for a long time without being told why; reason first
released in trial (violent and recruiting/radicalising people in prison-
terrorism); did he have to be told of everything? He had to be told the gist;
enough to be able to argue against decision/put forward a case against that
decision; Ministry of Defence didn’t want to provide reasons because they
didn’t want to reveal informants in prison; but had to give him firm reasons
as to why he was serving such a long time in solitary confinement.
Does individual need to be given a hearing? In terms of a hearing, does it need to be
oral/on papers? In practise this is significant; psychologists say if you’re in person
can be more convincing etc.:
What is a fair hearing?
Tucker LJ’s quote in Russell v Duke of Norfolk-administrative law is all about context; differs
in cases; law applied differently.
What is the content of a fair hearing?
Notice of the charge(information of the case against him/her)do you have to be
informed about what’s going to happen to you? “Rule of law requires that a
constitutional state must accord to individuals the right to know of a decision before
their rights can be adversely affected” (Lord Steyn in R v Secretary of State for the
Home Department, ex p Anufrijeva); core requirement of natural justice=have to be
informed. How much information must be given?
1. R v Gaming Board, ex p Benaim and Khaida=B&K applying for a certificate of
fitness to open a casino in London; not given that license by Gaming Board;
reason=they have a history of associating with criminals; when they refused
licence THEY DON’T TELL B&K WHY; cite it’s public interest reasons; go to
court because they want to be able to respond to allegations against them
and to find reasons; need enough info. to respond and courts agree to this;
need to be told the ‘gist’ of the case against them (Denning); don’t need to
know everything; Gaming Board said they didn’t give all the info. to protect
the source (reason wasn’t good enough; don’t need to be given confidential
info); need to be given enough info. to respond/explain their situation/put
up a case in defence; Denning-pragmatic balance; may be good reasons why
you can reveal all of info. In terms of legal certainty-‘gist’ varies from case to
case.
2. L v West London Mental Health Trust=L was a patient in a secure hospital
being moved to a high security hospital; solicitor not given notice about
meeting that was arranged by psychologists to assess whether or not he
should be moved; not allowed to attend/state a case; court ruled it wasn’t a
fair hearing in the division court/high court/court of appeal; judges in court
of appeal said it’s more flexible than that (doesn’t need to be told all info.;
just enough for patient to know what’s going on to know what’s going and
to be able to respond to charge)
3. Bourgass v Secretary of State for Justice-decisions related to solitary
confinement in prison; first decision to put someone in Solitary Confinement
for up to 72 hrs (no issue; natural justice doesn’t require specific process to
be put into place); decision to put them in for longer than 72 hrs was serious
and required a fair hearing; decisions made by panels; Bourgass out into
Solitary Confinement for a long time without being told why; reason first
released in trial (violent and recruiting/radicalising people in prison-
terrorism); did he have to be told of everything? He had to be told the gist;
enough to be able to argue against decision/put forward a case against that
decision; Ministry of Defence didn’t want to provide reasons because they
didn’t want to reveal informants in prison; but had to give him firm reasons
as to why he was serving such a long time in solitary confinement.
Does individual need to be given a hearing? In terms of a hearing, does it need to be
oral/on papers? In practise this is significant; psychologists say if you’re in person
can be more convincing etc.:
