A fundamental principle of natural justice is that no man should be condemned unheard

“A fundamental principle of natural justice is that no man should be condemned unheard”. Discuss

1. Introduction:

“No man should be condemned unheard” or that both the sides must be heard before passing any order. A man cannot incur the loss of property or liberty for an offence by a judicial proceeding until he has a fair opportunity of answering the case against him. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision Is made, but there may be instances where though an authority Is vested with the powers to pass such orders which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatory applied irrespective of the fact as to whether there is any such statutory provision or not.

2. Definition of Natural Justice:

In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general “duty to act fairly”.<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult to prove in practice while imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias.

The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe, the right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights, which is said to complement the common law rather than replace it.

3. Historical Background of Natural Justice:

Natural justice is a term of art that denotes specific procedural rights in the English legal system<href=”#_ftn2″ name=”_ftnref2″ title=””>[2] and the systems of other nations based on it. It is similar to the American concepts of fair procedure and procedural due process, the latter having roots that to some degree parallel the origins of natural justice.

Although natural justice has an impressive ancestryand is said to express the close relationship between the common law and moral principles, the use of the term today is not to be confused with the “natural law” of the Canonists, the mediaeval philosophers’ visions of an “ideal pattern of society” or the “natural rights” philosophy of the 18th century. Whilst the term natural justice is often retained as a general concept, in jurisdictions such as Australia and the United Kingdomit has largely been replaced and extended by the more general “duty to act fairly”. Natural justice is identified with the two constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or “no man a judge in his own cause”), and the right to a fair hearing (audi alteram partem, or “hear the other side”).

4. Fundamental Principles of Natural Justice is “no man should be condemned unheard”:

A person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker. To ensure that these rights are respected, the deciding authority must give both the opportunity to prepare and present evidence and to respond to arguments presenting by the opposite side. When conducting an investigation in relation to a complaint it is important that the person being complained against is advised of the allegations in as much detail as possible and given the opportunity to reply to the allegations.

  1. Right to a Fair Hearing:

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.<href=”#_ftn3″ name=”_ftnref3″ title=””>[3] 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.

Besides promoting an individual’s liberties, the right to a fair hearing has also been used by courts as a base on which to build up fair administrative procedures. It is now well established that it is not the character of the public authority that matters but the character of the power exercised. However, in the United Kingdom prior to Ridge v. Baldwin (1963), the scope of the right to a fair hearing was severely restricted by case law following Cooper v. Wands worth Board of Works (1863). In R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. (1923), Lord Atkins observed that the right only applied where decision-makers had “the duty to act judicially”. In natural justice cases this dictum was generally understood to mean that a duty to act judicially was not to be inferred merely from the impact of a decision on the rights of subjects; such a duty would arise only if there was a “superadded” express obligation to follow a judicial-type procedure in arriving at the decision.<href=”#_ftn4″ name=”_ftnref4″ title=””>[4]

B. Aspects of a Fair Hearing:

a. Prior notice of hearing:

Natural justice allows a person to claim the right to adequate notification of the date, time, place of the hearing as well as detailed notification of the case to be met. This information allows the person adequate time to effectively prepare his or her own case and to answer the case against him or her. In Cooper v. Wands worth, Chief Justice William Erle went so far as to state that the lack of notice and hearing afforded to Cooper could be said to be a form of abuse, as he had been treated as if he did not matter. As Lord Mustill famously held in R. v. Secretary of State for the Home Department, ex parte Doody (1993): “Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

It has been suggested that the requirement of prior notice serves three important purposes:

  • The interest in good outcomes – giving prior notice increases the value of the proceedings as it is only when the interested person knows the issues and the relevant information that he or she can make a useful contribution.
  • The duty of respect – the affected person has the right to know what is at stake, and it is not enough to simply inform him or her that there will be a hearing.
  • The rule of law notice of issues and disclosure of information opens up the operations of the public authority to public scrutiny.

The British courts have held it is not enough for an affected person to merely be informed of a hearing. He or she must also be told what is at stake.

b. Opportunity to be heard:

Every person has the right to have a hearing and be allowed to present his or her own case. Should a person not attend the hearing, even with adequate notice given, the adjudicator has the discretion to decide if the hearing should proceed. In Ridge v. Baldwin, a chief constable succeeded in having his dismissal from service declared void as he had not been given the opportunity to make a guard. In another case, Chief Constable of the North Wales Police v. Evans (1982), a chief constable required a police probationer to resign on account of allegations about his private life which he was given no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful. However, this requirement does not necessarily mean the decision-maker has to meet the complainant face to face “Natural justice does not generally demand morality”. It has been suggested that an oral hearing will almost be as good as useless if the affected person has no prior knowledge of the case. In Lloyd v. McMahon (1987), an oral hearing did not make a difference to the facts on which the case was based. Giving judgment in the Court of Appeal of England and Wales, Lord Justice Harry Woolf held that an oral hearing may not always be the “very pith of the administration of natural justice”. It has also been suggested that an oral hearing is only required if issues concerning deprivations of legal rights or legally protected interests arise.

C. Right to legal representation:

There is no inherent common law right to legal representation before a domestic tribunal. A tribunal has the discretion to admit either a legally qualified or unqualified counsel to assist the person appearing before it, based on the facts of the case.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]When assessing whether a party should be offered legal assistance, the adjudicator should first ask whether the right to be heard applies, and, secondly, whether counsel’s assistance is needed for an effective hearing given the subject matter, bearing in mind the consequences of such a denial.

In R. v. Secretary of State for Home Department, ex parte Tarrant (1983), Webster J. set out six factors to be considered when deciding whether to allow representation by counsel, namely:<href=”#_ftn6″ name=”_ftnref6″ title=””>[6]

  • The seriousness of the charge and the potential penalty;
  • Whether any points of law are likely to arise;
  • Whether the prisoner is capable of presenting his own case;
  • whether they are any procedural difficulties faced by prisoners in conducting their own defense;
  • Whether there is reasonable speed in making the adjudication; and
  • Whether there is a need for fairness between prisoners or between prisoners and prison officers.

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. This was enunciated in Singapore in Ho Paul v. Singapore Medical Council (2008). Dr. Ho, who had been charged with professional misconduct, chose to appear before the Council in person and declined to cross-examine the Council’s key witness. Subsequently, he argued that he should have been warned of the legal implications of not being legally represented. The High Court rejected this argument and held he had suffered no prejudice. Dr. Ho had been given a fair opportunity of presenting his own case and, most importantly, had not been deprived of his right to cross-examine the witnesses.

d. The decision and reasons for it:

Currently, the principles of natural justice in the United Kingdom and certain other jurisdictions do not include a general rule that reasons should be given for decisions. In R.v. Northumberland Compensation Appeal Tribunal, ex parte Shaw (1951), Denning L.J. stated: “I think the record must contain at least the document which initiates the proceedings, the pleadings, if any; and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision.”<href=”#_ftn7″ name=”_ftnref7″ title=””>[7] It has been stated that “no single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions”.

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.

5. Conclusion:

In the present day, without affording hearing by an unbiased and impartial authority that must act objectively and must also give out his mind, as to what weighed in decision making process, by incorporating reasons to support the decision or, to say so, by giving a speaking order. This is necessary for a society, which is governed by Rule of law. How substantive laws are applied and rights are determined is a question not less important, to say it again, the principles of -natural justice are great humanizing principles intended to invest law with fairness to secure justice and to prevent miscarriage of justice. And no man should be condemned unheard.


Books and Articles:

Bernard Schwartz (1953), “Administrative Procedure and Natural Law”, Notre Dame Lawyer 28 (2): 169, cited in Shauer, “English Natural Justice and American Due Process”, p. 51, n. 24

Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180, 143 E.R. 414, Court of Common Pleas (England). This was seen in cases such as Local Government Board v. Arlidge [1915] A.C. 120, H.L. (United Kingdom); and R. v. Leman Street Police Station Inspector, ex parte Venicoff [1920] 3 K.B. 72, H.C. (K.B.) (England & Wales)

Chief Constable of the North Wales Police v. Evans [1982] UKHL 10, [1982] 1 W.L.R. 1155, H.L. (United Kingdom)

David Phillip Jones; Anne S. de Villars (2009), “Natural Justice and the Duty to be Fair”,Principles of Administrative Law (5th ed.), Carswell, pp. 208–223 at 209, ISBN 978-0-7798-2126-6

Ex parte London Electricity Joint Committee Co. (1920), Ltd., p. 205

Ex parte Shaw, p. 352

Frederick F. Shauer (1976), “English Natural Justice and American Due Process: An Analytical Comparison”, William and Mary Law Review 18 (1): 47–72 at 47

Ho Paul v. Singapore Medical Council [2008] 2 S.L.R.(R.) 780, H.C. (Singapore)

J.R.S. Forbes (2006), “Natural Justice: General”, Justice in Tribunals (2nd ed.), Sydney: The Federation Press, pp. 100–118 at 103, ISBN 978-1-86287-610-1

Keith Frank Goodfellow (1971), Administration under Law: A Report by JUSTICE, London: Stevens, p. 23, ISBN 978-0-420-43710-5

Kioa v. West (1985) 159 C.L.R. 550 at 583, High Court (Australia): “[I]t has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression ‘natural justice’ has been associated, perhaps too closely associated, with procedures followed by courts of law.”

Kok Seng Chong v. Bukit Turf Club [1992] 3 S.L.R.(R.) 772, H.C. (Singapore)

L. Goodhart (1953) (PDF), English Law and the Moral Law, London: Stevens, p. 65,OCLC 1812603, cited in De Smith’s Judicial Review, p. 321

Lloyd v. McMahon [1987] 1 A.C. 625, C.A. (England & Wales) and H.L. (United Kingdom)

Lord Woolf; Jeffrey Jowell; Andrew Le Sueur, eds. (2007), “Procedural Fairness: Introduction, History and Comparative Perspectives”, De Smith’s Judicial Review (6th ed.), London: Sweet & Maxwell, pp. 317–354 at 321, ISBN 978-0-421-69030-1.

R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 K.B. 338, C.A. (England & Wales)

R. v. Secretary of State for Home Department, ex parte Tarrant [1985] 1 Q.B. 251, Divisional Court (England & Wales)

Re Siah Mooi Guat [1988] 2. S.L.R.(R.) 165 at 178–179, para. 34, H.C. (Singapore)

Thio Li-ann (1999), “Law and the Administrative State”, in Kevin Y[ew] L[ee] Tan, The Singapore Legal System (2nd ed.), Singapore: Singapore University Press, pp. 160–229 at 192–193, ISBN 978-9971-69-213-1.

[1] Ridge v. Baldwin [1963] UKHL 2, [1964] A.C. 40, H.L. (United Kingdom)

Timothy [Andrew Orville] Endicott (2009), Administrative Law, New York, N.Y.: Oxford University Press, p. 110, ISBN 978-0-19-927728-5

Web References:

http://en.wikipedia.org/wiki/Natural_justice (accessed 09 March 2013) http://en.wikipedia.org/wiki/Article_6_of_the_European_Convention_on_Human_Rights (accessed 11 March 2013)

[1] Retrieved from http://en.wikipedia.org/wiki/Natural_justice (accessed 09 March 2013)

[2] Frederick F. Shauer (1976), “English Natural Justice and American Due Process: An Analytical Comparison”, William and Mary Law Review 18 (1): 47–72 at 47

[3] Wade & Forsyth, p. 402

[4]De Smith’s Judicial Review, p. 330

[5]Kok Seng Chong v. Bukit Turf Club [1992] 3 S.L.R.(R.) 772, H.C. (Singapore)

[6]Ex parte Tarrant, pp. 285–286.

[7]Ex parte Shaw, p. 352