Natural justice - Wikipedia, the free encyclopedia

"Justice

must be rooted in confidence and confidence is destroyed when

right-minded people go away thinking:

'The judge was biased.'"

 

Natural justice - Wikipedia, the free encyclopedia: The essence of the need for impartiality was observed by Lord Denning, the Master of the Rolls, in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968): "Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'"

Public confidence as the basis for the rule against bias is also embodied in the often-quoted words of Lord Hewart, the
Lord Chief Justice of England and Wales, that "[i]t is not merely of some importance, but of fundamental importance that
justice should not only be done, but should manifestly be seen to be done".
 

Bias may be actual, imputed or apparent. Actual bias is established where it is actually established that a decision-maker was

prejudiced in favour of or against a party. However, in practice, the making of such an allegation is rare as it is very hard to

prove.

One form of imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary or proprietary interest in

the outcome of the decision. Once this fact has been established, the bias is irrebuttable and disqualification is automatic – the

decision-maker will be barred from adjudicating the matter without the need for any investigation into the likelihood or

suspicion of bias.

 

In certain limited situations, bias can also be imputed when the decision-maker's interest in the decision is not pecuniary but

personal.

 

Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its

outcome, but through his or her conduct or behaviour gives rise to a suspicion that he or she is not impartial. An issue that has

arisen is the degree of suspicion which would provide the grounds on which a decision should be set aside for apparent bias.

Currently, cases from various jurisdictions apply two different tests: "real likelihood of bias" and "reasonable suspicion of

bias".

 

On the other hand, the reasonable suspicion test asks whether a reasonable and fair-minded person sitting in court and

knowing all the relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible.  On the other

hand, the reasonable suspicion test asks whether a reasonable and fair-minded person sitting in court and knowing all the

relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible.  It has been suggested that the

differences between the two tests are largely semantic and that the two tests operate similarly.

 

The court normally requests that an objection be taken as soon as the prejudiced party has knowledge of the bias.  If an

objection is not raised and proceedings are allowed to continue without disapproval, it will be held that the party has waived

its right to do so.

 

It has been suggested that the rule requiring a fair hearing is broad enough to include the rule against bias since a fair hearing

must be an unbiased hearing. However, the rules are often treated separately. It is fundamental to fair procedure that both

sides should be heard.  The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights

or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to answer

them, and the opportunity to present their own cases.

 

It has also been suggested that where a tribunal hearing concerns the individual's reputation or right to livelihood, there is a

greater need for allowing legal representation as this vindicates the idea of equality before the law.

When one refuses legal representation, one cannot expect to receive a higher "standard" of natural justice.

 

It is also not a court's obligation to provide assistance when a party presents his or her case without legal representation.

The onus [of informing the accused of his defence options or what could be more advantageous to his case] does not shift to

the judge (or the Prosecution, for that matter) simply because the accused is unrepresented. That will be placing too onerous

a burden on the judge. Furthermore, the judge will be performing two completely incompatible and irreconcilable roles – one

as the adjudicator, the other as the de facto defence counsel.

 

Historically, uncontrolled public decisions have led to poor outcomes and disrespect for the decision-makers. Such decisions

also lacked the regularity and transparency that distinguish them from the mere say-so of public authorities. On such grounds,

there are obvious benefits for the disclosure of reasons for decisions. First, procedural participation by people affected by a

decision promotes the rule of law by making it more difficult for the public authority to act arbitrarily.   Requiring the giving

of reasons helps ensure that decisions are carefully thought through, which in turn aids in the control of administrative

discretion.  Secondly, accountability makes it necessary for the public authority to face up to the people affected by a

decision. When a public authority acts on all the relevant considerations, this increases the probability of better decision

outcomes and, as such, is beneficial to public interests. Another important benefit is that respect for decision-makers is

fostered, which increases their integrity in the public's eyes.