Natural Justice and Procedural Fairness

This article gives a broad overview of these two valuable concepts. It gives meaning to what many people voice when they are in a process, whether in or outside court, in which a decision is to be made which impacts on them. In 40 years of court work I have found time and again that more than anything else people want to be treated fairly. For more than two decades I have advised and guided solicitors and other professionals through the regulatory maze, and I have done the same with those caught up in the criminal justice system. Whether it’s a regulator or the police, a disciplinary tribunal or a court, those drawn into the process want to know they will be heard and that a fair decision will be made taking into account what they have said.

Thankfully, the law has moved on a lot since I started in 1982, and participants can now expect open fair treatment. Indeed, if courts or other decision makers do not operate fundamental fairness their decisions are usually invalid so it’s in everyone’s interests to get it right. To fail to do so causes damage, brings the decision-making process into disrepute and can be expensive to correct. Lawyers in our jurisdiction can be proud of this. There is recourse and we can rightly deprecate those jurisdictions which operate arbitrarily where participants have little or no recourse.

The historical origins of procedural fairness and natural justice are very old and well established. Court decisions establishing basic principles date back to the mid-19th century. More recently they have become enshrined in various Articles in the ECHR. Such principles trickle down to decision makers of all levels.

It’s a truism to say that as lawyers we often have a strong sense of whether something has been done fairly or not. We know what to do when that sense of fairness is offended against. As solicitors we have a moral compass, and I think we also have a “fairness compass.”

There is no doubt that fairness and natural justice are fundamental rights. The right to know when a decision might be made which impacts, the subject matter and a right to be heard. Courts and others cannot put such rights aside save where statute or rules of court permit something to be done in absence and without notice (for example search warrants, freezing orders and so on where it is in the wider interests of society to make exceptions). These concepts are frequently raised at all levels of decision making at which someone’s interests are to be considered and decided upon.

What in practice do they actually mean?

A basic proposition is that procedural fairness operates to prevent a misconceived or wrong decision being made against someone by ensuring the person affected has proper notice of exactly what is being considered and when. Further, they provide a framework for redress – a reconsideration at its lowest and financial or other redress at its highest. I deal with it regularly as part of my civil and criminal work. Courts have to be scrupulous in the application of procedural fairness.

Procedural fairness is closely linked with natural justice and for practical purposes the two are often inseparable. They feature prominently in my work with the Solicitors Regulation Authority and other regulators, and the Solicitors Disciplinary Tribunal as well as the criminal courts. Everyone caught up in the processes of these bodies has a right to know what’s being considered and to have their say. I like to see them as a kind of check on arbitrary decisions that involve prejudgment or bias, or a closed mind unopen to persuasion. More importantly they operate to require a court or other decision maker to proceed with great care to ensure the person affected has been given adequate notice of the specific subject matter and an opportunity to prepare to address it.

In the criminal courts it is possible to proceed in a defendant’s absence only if he understands that will happen if he doesn’t turn up and as long as he knows specifically of the case against him. The Criminal Procedure Rules require a defendant to specifically confirm he knows a case will go ahead if he doesn’t attend without a good reason. The SDT applies the same principles when Respondents fail to engage or attend. The Tribunal checks carefully to ensure the specific allegations and supporting evidence have been served giving proper notice and time to respond. If it is in doubt it will adjourn. Those prosecuting or investigating are called upon to show they have given proper notice. The imperative to be procedurally fair is paramount.

The SRA has promulgated many sets of rules over recent years and as it investigates it gives time to respond to allegations and evidence. Lawyers argue that sometimes time is often too short, but the basic principle is followed. Internal decisions are made not by an investigator but by an Authorised Decision Maker or Adjudicator, someone detached from the process. This avoids the appearance of bias, another closely linked concept, and separates the investigator or prosecutor from the decision maker. It is universally accepted you cannot have a decision maker with an interest in the outcome involved in making that decision. The only option is recusal.

Tribunals like the SDT take seriously a failure to disclose evidence in good time. They are after all being requested by the regulator to make decisions that affect solicitors’ lives and reputations. The criminal courts expect evidence to be relied upon by either side to be disclosed in a timely way. Participants are entitled to know the case they face and a proper opportunity to address it. To proceed otherwise offends the principle of procedural fairness.

The Investigatory stage is just as important. Letters, for example from the SRA, make clear that no decision has been made when it advances allegations and seeks information and responses. The corporate mind must remain open to persuasion. It cannot prejudge. Linked to this is the need for a clear separation between the decision maker and the subject matter. The decision maker must bring an impartial mind to the process or recuse themselves. Sometimes Magistrates will do this if a defendant is known to them or if there is a personal connection with the proceedings. They openly declare and take no part. They may well be able to make a fair decision, but the fair-minded observer may think otherwise, and this drives the inevitable decision to withdraw.

Most people have an innate sense of fairness and will instinctively know when something unfair has happened. Procedural fairness relates to the fairness of the procedure by which a decision is made, and not the fairness, in a substantive sense, of that decision. A given decision by itself may well be correct, but if the process is wrong it becomes objectionable. The Administrative Court will send cases back to lower criminal or civil courts for rehearing before a differently constituted court on such grounds.

I have started many conversations with clients who complain about being treated unfairly. Sometimes they complain the court heard but didn’t listen or treat them respectfully. Other times they say they knew nothing about proceedings or did not know a particular hearing was going to decide something significant. The unfair process often produces far more emotion than the actual decision. There is a palpable sense of grievance at not being properly involved. I have made many applications to Magistrates’ Courts who have made decisions against defendants in absence when papers containing charges had not been served in time, or at all. For my road traffic work, the first a defendant knows of an adverse decision is the receipt of a letter of conviction and even worse a letter from the DVLA suspending the ability to drive.

When such errors are drawn to the courts attention the decisions are invariably reversed, the case reopened, and a new date fixed to enable full argument to be heard.

The principles do not just apply to courts, but to administrative decision makers at all levels – sporting, social, political and so on. A sound approach is for administrative decision makers to assume that they owe a duty of procedural fairness to a person whose interests, rights or liberties will be affected by the decision. As a consequence, there is a positive duty to afford procedural fairness, and not just to do so when asked. Decision makers must be aware of the need to do this.

A linked basic principle of procedural fairness is that a decision-maker should not judge their own case or have an interest in the outcome. A decision maker should listen to both sides of a case before making a decision. Self-evidently that requires the presence or input of the person affected. If they choose not to participate and as long as they know the precise nature of the subject matter of the proposed decision, that is a different thing altogether.

The right to defend oneself and simply to be heard is a fundamental right not to be compromised on grounds of expediency or otherwise.

David Barton is a Solicitor Advocate specialising in professional regulation and criminal road traffic work. He also specialises in advising and representing solicitors and law firms. He can be found at: www.solicitors-disciplinary-advice.co.uk.