NATURAL JUSTICE – RIGHT TO A FAIR HEARING

Lecture objectives:
• At the end of this lecture students will be able to:
• Determine whether the court can hear the claim for judicial review (AJR)
• Determine whether there was a breach of natural justice (NJ):
• Has there been a fair hearing?
• Has there been adequate disclosure?
• Has there been adequate legal representation?
• Should reasons be provided?
• Are there any applicable exceptions to the principles of natural justice being applied?

Importance of Natural Justice:

 Promotes fairness in the administration of justice
 Increases trust and confidence in the judicial system – especially with respect to rules
about bias and automatic disqualification
 Provides for the protection of several constitutional rights, such as due process, right to
representation, right to hear particulars of the charge etc

Two types of Natural Justice:

• Right to a fair hearing – Audi Alteram Partem – Both sides must be heard. Thus, a fair
opportunity to present one’s case must be provided, which may, for example, require
access to legal representation.
• The rule against bias – Nemo judex in causa sua – No man should be a judge in his own
cause. This principle invalidates any judgment where there is bias or conflict of interest
or duty.

Entitlement to Procedural Fairness – Right to be Heard:

Ridge v Baldwin [1964]
In 1956 the appellant was appointed chief constable of a borough police force, the
appointment being subject to the Police Acts and regulations. Appellant was acquitted from
charges on two different occasions. After his acquittal the appellant applied to be
reinstated, but on March 7 1958, the watch committee at a meeting decided that he had
been negligent in the discharge of his duties as chief constable and, in purported exercise of
the powers conferred on them by section 191(4) of the Act of 1882, dismissed him from that
office.
Findings – The decision of the respondents to dismiss the appellant was null and void and
that, accordingly, notwithstanding that the decision of the Home Secretary was ‘final and
binding on the parties’ by section 2(3) of the Police Appeals Act, 1927, that decision could
not give validity to the decision of the respondents.
Per Lord Reid, Lord Morris and Lord Hodgson: they were bound to observe the principles of
natural justice by informing the appellant of the charges made against him and giving him
an opportunity of being heard, and that they had not done so.

Alexandra School v Barbados Cricket Association (2004)

Alexandra won a semi-final cricket match, however, they were disqualified for fielding an
ineligible player. The other team was awarded the spot in the final without Alexandra being
given an opportunity to be heard.
Findings – Inniss J stated: “I am surprised that in this day and age the Barbados Cricket
Association would seek to make a finding against one of its members and penalize it without
affording it the opportunity to be heard.”…“Sports especially cricket, plays a pivotal role in
the lives of many Barbadians. Those who administer sporting organizations must recognize
that they must observe the basic principles of natural justice. They cannot deliberate in
secret, and then pronounce their decisions expecting them to be accepted unquestionably.”

Adequate Disclosure – Adequate Notice of Charge:

Annamunthodo v OWTU [1961]
The appellant, a member of a trade union, was charged before the General Council of the
union with offences against certain of the union rules. There was no power under those
particular rules to expel him. The appellant having been convicted of the offences charged,
the General Council purported to expel him under another rule, rule 11(7), under which he
had not been charged. His expulsion was upheld on his appeal under rule 11(7) to the
Annual Conference of Delegates, whose decision under the rule was to be ‘final and
binding’. Rule 11(7) created a separate and distinct offence and should not have been
invoked for the purpose of expelling the appellant unless he had been given notice of the
charge under it and had had a fair opportunity of meeting it.
The decision of the General Council that led to the conviction of the appellant for an offence
against the rules with which he had never been charged must be set aside and the
purported expulsion declared invalid.

Maharaj v AG of Trinidad and Tobago (1976)

Judge was asked to disqualify himself from the cases listed for hearing on 16 th April on the
ground that he had acted unjudicially on the previous occasions. The appellant stated: “You
are guilty of unjudicial conduct having regard to what I said yesterday.” The judge then
charged him with contempt.
Findings – The failure to explain the nature and particulars of the contempt with which the
appellant was charged impaired the legal validity of the contempt charge. Their Lordships
would only add that although the law does not require that anyone charged with contempt
in the face of the court shall necessarily be given the opportunity of consulting solicitors or
counsel before he is dealt with, their Lordships think it unfortunate that in this case the
judge, in his discretion, refused the appellant's request for an opportunity of consulting Dr
Ramsahoye, a senior member of the Bar who no doubt would have given the appellant
excellent advice and also perhaps have persuaded the judge from falling into error.

White v Dawkins (1976)

The appellant took instructions from a client, the complainant, to file a petition for divorce
on behalf of his daughter and prosecute the matter to decree absolute or dismissal. In due
course the appellant filed a petition which, in two respects, was defective. The Committee
found that the appellant had charged a fee of $800 and that he had been guilty of "gross
neglect or negligence amounting to professional misconduct.” The Committee ordered that
the appellant be suspended from practice for three months and that he refund the $350
paid to him by the client.
Findings – (i) it was not open to the Committee to find that the appellant had been guilty of
gross neglect or negligence since there had been no such charge preferred against him; (ii)
that the Committee had not determined the matters in respect of which the appellant's
client had complained since, with one exception, it had made no findings in respect of the
several allegations made against the appellant by the complainant.

Consultations and Written Representations:

Katwaroo v Burroughs (1982)
Katwaroo, a registered farmer, wanted to obtain a shotgun to deal with pests which were
attacking his crops. He applied to the Commissioner of Police for a licence under the
Firearms Act. Subsequently, K was advised that his application had been accepted and that a
firearm user's licence had been granted to him. Some weeks later, the commissioner wrote
to K and advised him that his firearm user's licence had been cancelled; no reason was
given.
Findings – (1) The court could properly review the exercise of a discretionary power
entrusted to the donee to be exercised as he thought fit. However, if the commissioner was
minded to revoke a firearm user's licence under section 21(d), he was required to do so
because he thought fit on reasonable grounds and he was also required to state his reasons
for revoking it; failure to state the reasons for his decision might give rise to an inference
that the decision had been taken otherwise than in good faith. Therefore, the commissioner
would be required to state the reasons for his decision by a specified date; if he failed to
state them by that date, he would be deemed to have no valid reasons and K would
thereupon automatically be entitled to the restoration of his licence.
Naraynsingh v Commissioner of Police [2004]
Naraynsingh, a man of good character, was the manager of two filling stations in Trinidad.
He held a firearms licence for a Taurus .38 revolver. A .22 revolver and ammunition was
found on the premises. Naraynsingh denied any knowledge of the second revolver and
claimed that it must have either not been discovered at his home or had been planted
there. The Commissioner of Police, acting in accordance with his powers under s.21 of the
Trinidad and Tobago Firearms Act 1970, having given Naraynsingh an opportunity to address
him in writing, cancelled his firearms licence.
Findings – (1) The commissioner was not required to hold an oral hearing before exercising
his power to cancel a firearms licence. He could adopt an exclusively written procedure.
(2) The commissioner was not entitled to reject the appellant's allegation of a ‘plant’
without more, simply on the basis of the material before him. Substantially more in the way
of investigation was required.

Hearings – Oral Hearings:

R v Parole Board ex parte Smith and West [2005]
The claimant in the first case, who had been released on licence after serving half of a three-
year sentence of imprisonment, was recalled to prison by the Secretary of State under
s.39(2) of the Criminal Justice Act 1991 after he had revoked the licence on the ground that
the claimant had breached its conditions. The judge refused the claimant's application for
judicial review of the Parole Board's decision not to give him an oral hearing when deciding
not to recommend his re-release under s.39(5) of the Act.
The claimant in the second case, who had been released on licence after serving two-thirds
of a 6 1/2 -year sentence of imprisonment, was recalled to prison by the Secretary of State
under s.39(2) of the 1991 Act after revocation of the licence on the ground that the claimant
had breached its conditions. After considering the claimant's written representations the
Parole Board decided not to recommend his re-release under s.39(5) of the Act.
Findings –  Allowing the appeals, that in resolving challenges to licence revocations the
Parole Board had a public law duty to act in a procedurally fair manner and to adopt a
procedure that fairly reflected the interests at stake; that whether an oral hearing was
necessary would depend on the circumstances of each case; that it would not be required in
every case but was likely to be called for where facts were in issue that could affect the
outcome or where it might otherwise contribute to achieving a just decision; and that on
the facts of the claimants' cases the board had breached the duty of procedural fairness
owed to them in not offering them oral hearings.

Hearings – Right to Call Witnesses:

R v Clarke (1976)
The appellant was charged and convicted for the crime of robbery with violence. He was
unrepresented by counsel at his trial, and on appeal, complained that he was not informed
by the trial judge of his right to call witnesses to testify on his own behalf when, as a matter
of fact, he had witnesses who could have done so if he had been told of that right.
Findings – (i) that it is the constitutional right of every person who is charged with a criminal
offence to be afforded such facilities as would enable him to obtain the attendance of
witnesses for examination on his own behalf before the court;
(ii) that an accused person must be at no disadvantage in obtaining the attendance of his
witnesses because, according to the Constitution, he is to have the self-same conditions as
those applying to prosecution witnesses for the procuring of witnesses for his trial;
(iii) that the Court of Appeal regards the matter of informing the accused of his right to call
witnesses as one ex debito justitiae (legal entitlement, not discretionary), and any officer of
the court present in court should remind the judge, if needs be, of his duty to do so.
Hearings – Right to Cross-Examination:
Chin v Chin [2001]
The breakdown in the marital relationship between the parties led to property disputes.
Although the Court of Appeal was, in their Lordships' respectful view, directing its attention
to the right issue, the Court of Appeal, in the absence of any factual findings made at the
trial and there having been no cross-examination at the trial, was in no better position than
Panton J had been to assess the respective credibility of the parties. The normal and proper
function of an appellate court is that of review. An appellate court can, within well-
recognised parameters, correct factual findings made below. But where the necessary
factual findings have not been made below and the material on which to make those
findings is absent, an appellate court ought not, except perhaps with the consent of the
parties, itself embark on the fact-finding exercise.
Findings – To allow the judgment of Downer JA to stand would, in their Lordships' view, be
unfair to Mr Chin. Mr Chin has given evidence which, if believed, contradicts Mrs Chin's
case. He is entitled to ask for his credibility to be judged after cross-examination of himself
and Mrs Chin. Mrs Chin's position is no different.
Accordingly their Lordships have concluded that the case must be remitted for a re-hearing
in the Supreme Court. Directions for the cross-examination of Mr Chin and Mrs Chin should
be given.  

Hearings – Right to An Adjournment:

Aris v Chin (1972)
The appellant a solicitor was absent, but sent a medical certificate stating that he would be
unable to do any heavy work for six weeks. The hearing was postponed to 19 June on which
date the appellant appeared before the Committee and produced another medical
certificate recommending two weeks' leave of absence from his duties. On JT advising the
Committee that she would be leaving Jamaica permanently on 29 June the Committee
postponed the hearing of her complaint to 26 June and told the appellant that JT's evidence
would be taken on 26 June whether he was able to be present or not and that if he could
not be present he should take steps to be legally represented. On 26 June, the appellant was
present but not legally represented. JT's evidence was taken, the appellant declined the
Committee's invitation to cross-examine her and her case was closed. The appellant
thereupon asked the Committee to adjourn the matter to enable him to give evidence when
he felt better. This request was refused and the Committee reserved its decision.
Findings – On 1 July the Committee gave its decision on the respondent's complaint, namely,
that the appellant was guilty of professional misconduct and that his name should be
removed from the roll of solicitors. On his appeal against the Committee's decision the
appellant argued that by refusing his application for postponement of the hearing of the
respondent's complaint of 26 June the Committee had denied him a full and fair opportunity
of being heard in answer to that complaint.
Findings – per  Smith JJ  and Robinson JJ (Fox JA, dissenting), that by its refusal on 26 June
of the appellant's application for a postponement of the hearing of the respondent's
complaint the Committee had denied the appellant a full and fair opportunity of being heard
in answer to that complaint, and that its order removing his name from the roll of solicitors
could not be allowed to stand;
Fox JA – the Committee was required to observe that principle in the maxim audi alteram
partem, ‘hear both sides’. But, the doctrine of that maxim does not imply that there must
always be a hearing, or a hearing of both sides, but only that each party must be afforded an
adequate opportunity of advancing his case. In short, natural justice is nothing more than
fair play.

AG of Grenada v Gairy (1994)

The High Court of Grenada ordered that the respondent should be compensated for the
unlawful confiscation of his property. After the respondent had opened his case, counsel for
the appellant sought a four-month adjournment to allow him to be briefed and to obtain a
valuation report; the adjournment was granted. Nevertheless, the arbitration was thereafter
continually frustrated by the appellant's apparent lack of readiness. The next hearing was
held on 14 December, when counsel for the appellant sought an adjournment of three
months on the ground that he was not ready; this was refused. No evidence was adduced
on behalf of the appellant and the arbitrator concluded that none would be forthcoming; he
visited the property and made an award on the basis of the evidence available.
Findings – the appellant had been granted four months in which to prepare his case and
even after that and after the respondent's witness had given evidence the appellant had
been allowed a further adjournment of one week; the arbitrator was entitled to conclude
that it was unlikely that the appellant would provide any evidence; in the circumstances, the
refusal of the adjournment had not been unreasonable.

The Right to Reasons:

• There is no common law right to reasons, but an implied duty to give reasons to uphold
natural justice
• Some Commonwealth Caribbean jurisdictions have a statutory right to provide reasons –
s.13-15 Administrative Justice Act of Barbados; s15-16 Judicial Review Act of Guyana;
and s.16 Judicial Review Act of Trinidad and Tobago.
• Each case is decided independently.
• Natural Justice can require reasons to be given where a decision appears irrational,
procedurally wrong or grossly unfair.
• The modern trend is towards openness, fairness and transparency.

The Right to Reasons – Process:

• Where a person is adversely affected, they have a right to request reasons
• Request must come within specified period (14 days – Bdos, GY; 28 days – TT)
• Must be in writing
• Response must be delivered in accordance with stipulations in respective laws – time
frame, format etc
R v Higher Education Funding Council ex parte Institute of Dental Surgery [1994]
The Higher Education Funding Council, a body responsible for the funding of research in
higher education decided to allocate research grants by rating each institution on a scale of
1 to 5, according to the quality of its research, on the basis of a research assessment
exercise. The applicant was notified that it was to be rated at level 2 by a circular which set
out briefly how the exercise had been conducted but gave no reasons as to why the
applicant had had its level of rating reduced from that which it had previously enjoyed. The
decision to place the applicant at level 2 would reduce its research grant by approximately
£270,000.
Findings – Dismissing the application, academic judgments were not in the class of cases
where the nature and impact of the decision itself, required that reasons to be given as a
routine aspect of procedural fairness, but were in a class where some factor would be
required to show that in the circumstances of the particular decision, fairness required
reasons to be given; that where the decision which was sought to be impugned was on the
evidence no more than an informed exercise of academic judgment, fairness alone would
not require reasons to be given; that despite the importance of the decision to the
applicant, the combination of openness in the run up to the decision with the prescriptively
oracular character of the decision itself made the council's allocation of grades inapt for the
giving of reasons; and that there was nothing inexplicable about the decision itself, which
could not have occurred within a lawfully conducted evaluation, so as to oblige the council
to furnish reasons.

R v University of Cambridge ex parte Evans [1998]

I consider it arguable, therefore, both that the categories derived from authority in the
Institute of Dental Surgery case are incomplete, and that even within them there may be
exercises of academic judgment which, though never patently aberrant, are nevertheless of
sufficient importance to the individual to require that reasons be given for them
In essence the issue of ‘why that particular outcome’ may require a reason, even though
‘how the outcome is determined’ is known.

R v Feggetter ex parte Wooder [2003]

The claimant was a convicted mental patient compulsorily detained at a secure hospital. His
responsible medical officer decided that he should receive anti-psychotic medication,
despite his refusal to consent. The claimant applied for judicial review seeking, inter alia, a
declaration that as a general requirement of fairness a SOAD should always provide a
patient with written reasons when certifying under s.58 that he should be given medication
against his will.
Findings – A decision to administer medical treatment to a competent non-consenting adult
under s.58 of the 1983 Act, though made by a doctor in the exercise of his clinical judgment
and not by a tribunal following a more formal process, nevertheless fell into that category of
cases involving personal liberty where fairness required reasons to be given as of right; clear
written reasons on the substantive points on which he had formed his clinical judgment to
certify treatment should have been provided.

Stefan v General Medical Council [1999]

A doctor had been subject to suspension of her registration for varying periods following
decisions of the Health Committee of the General Medical Council that her fitness to
practise was impaired. In February 1998 her case came before the Health Committee again
and the committee concluded that her registration should be suspended indefinitely. The
only reason given for the decision was that "the committee have carefully considered all the
information presented to them and continue to be deeply concerned about your medical
condition. The committee have again judged your fitness to practise to be seriously impaired
and have directed that your registration be suspended indefinitely.”
Findings – in the light of its judicial character, the framework in which it operated and the
provision of a right of appeal against its decisions there was a common law obligation to
give at least a short statement of the reasons for its decisions; it should be such as to tell the
parties in broad terms why the decision was reached.
Lord Clyde: Turning to the particular circumstances of the present case their Lordships are
persuaded that there was a duty at common law upon the committee in the present case to
state the reasons for their decision. In the first place there is the consideration that the
decision was one which was open to appeal under the statute.
Secondly, a consideration of the whole procedure and function of the committee prompts
the conclusion that the procedures which it follows and the function which it performs are
akin to those of a court where the giving of reasons would be expected.
Thirdly, the issue was one of considerable importance for the practitioner.
Fourthly, Dr Stefan has repeatedly asked for an explanation of the committee's view and for
the diagnosis which they have reached of her condition.
Fifthly, this was the first time that an indefinite suspension was decided upon.

Gupta v General Medical Council [2001]

G and her husband were both registered medical practitioners in a practice in London. In
1996 the husband's name was removed from the register following a finding by the
Professional Conduct Committee of the General Medical Council that he had been guilty of
serious professional misconduct. General Medical Council, announced that it had found
three of the four charges proved but gave no indication of the reasons for its findings. It
then directed that G's name be erased from the register.
Findings –  dismissing the appeal, that there was no general duty on the Professional
Conduct Committee of the General Medical Council to give reasons for its decisions on
matters of fact, particularly where its decision depended essentially on resolving questions
of the credibility of witnesses.
Lord Rodger: their Lordships affirmed the existence of a duty to give a general explanation
for the committee's decisions on questions of serious professional misconduct and of
penalty. By contrast, they rejected the existence of any such duty to give reasons for the
committee's decision on the matters of fact in that case.

Rey v Government of Switzerland [1999]

The applicant was charged in Switzerland with commercial fraud, falsification of accounts
and bankruptcy offences and he absconded to The Bahamas. The evidence would be
sufficient to warrant the applicant's trial for those offences if they had been committed in
The Bahamas, committed him to custody to await his extradition. Pursuant to section 11(1)
he applied to the Supreme Court of The Bahamas for habeas corpus. The judge dismissed
the application holding, inter alia, that the applicant was not entitled to be discharged under
section 11(3) on the ground that it would be unjust or oppressive to extradite him.
Findings – There was no general duty on magistrates in extradition cases to give reasons in
relation to all disputed issues of fact and law and in the proceedings for the extradition of
the applicant the principle of fairness did not require the magistrate to give reasons on all
the contested issues; and that neither the magistrate's failure to give reasons with regard to
disputed issues of fact nor the issue of three separate warrants to proceed had rendered
the extradition proceedings unlawful.

Right to Legal Representation:

Thornhill v AG of Trinidad and Tobago [1981]
After a shooting incident, the appellant was arrested and taken to a police station. Several
requests were made for him to be given the opportunity of communicating with his lawyer
but these requests were initially refused. The only reason for the refusal was that the police
thought that if the appellant were advised of his right not to reply to their questions, they
would be less likely to obtain confessions from him as to previous crimes which it was
suspected that he had committed. It was three days after his arrest and after an identity
parade that the appellant was permitted to communicate with the lawyer.
Findings – that section 2(c)(ii) of the Constitution of 1962 secured the right of a detained
person to access to a lawyer without delay.

Robinson v R [1985]
The defendant was arrested in August 1978 and charged with murder. He did not apply for
legal aid. One of the defendant's counsel applied for permission for them both to withdraw
because they had not been fully paid, and for an adjournment for a legal aid assignment.
The judge offered the defendant legal aid, but he declined it. Both applications were refused
by the judge who feared that the witness might not be available if the hearing was
adjourned. The defendant's counsel withdrew and the trial continued without the
defendant being legally represented.
Findings – the right, under the provisions of the Constitution of Jamaica to legal
representation of choice was not an absolute right in that it was not necessary for an
adjournment always to be granted in order to ensure that any defendant in a criminal
matter who desired legal representation was duly represented; that in exercising his
discretion whether or not to grant an adjournment for that purpose the judge had to
consider other relevant matters including the present and future availability of witnesses,
and since the absence of legal representation was caused by the conduct of the defendant's
counsel and also by the defendant's failure to ensure that they were paid within a
reasonable time before trial or otherwise to apply in advance for legal aid, the judge's
refusal to adjourn the trial to enable the defendant to instruct an alternative legal
representative did not deprive the defendant of his fundamental right under section 20(6)(c)
of the Constitution to be permitted to defend himself by a legal representative of his own
choice, even though as a result he was unrepresented at his trial for a capital offence; and
that, in all the circumstances, no miscarriage of justice had occurred and the defendant had
been properly convicted of murder.

Exceptions – Public Interest Risk:

CCSU v Ministry for the Civil Service [1985]
The main functions of Government Communications Headquarters ("GCHQ") were to ensure
the security of military and official communications and to provide the Government with
signals of intelligence. On 22 December 1983, the Minister for the Civil Service gave an
instruction, purportedly under article 4 of the Civil Service Order in Council 1982, for the
immediate variation of the terms and conditions of service of the staff with the effect that
they would no longer be permitted to belong to national trade unions.
Findings – it was for the executive and not the courts to decide whether, in any particular
case, the requirements of national security outweighed those of fairness; and that the
evidence established that the minister had considered, with reason, that prior consultation
about her instruction would have involved a risk of precipitating disruption at GCHQ and
revealing vulnerable areas of operation, and, accordingly, she had shown that her decision
had in fact been based on considerations of national security that outweighed the
applicants' legitimate expectation of prior consultation.

Exceptions – Prompt Action:

R v Secretary of State for Transport ex parte Pegasus Holdings [1988]
On about 8 April 1987, the respondent Secretary of State granted a permit to T, a Romanian
organisation, under article 83 of the Air Navigation Order 1985 permitting it to take on
board and discharge passengers at points in the United Kingdom. Four of the pilots failed
the flying test part of the examination, and the fifth, though he passed the flying test, failed
the air law written paper. The Secretary of State, stating that he doubted and had cause to
inquire into the ability of any of T's pilots to comply with the requirements of the Romanian
Civil Aviation Authority in operating the aircraft for the purposes of the permit, forthwith
provisionally suspended it.
Findings – While the rules of natural justice required that a person affected by an
administrative action should have a reasonable opportunity of presenting his case,
comparatively little was required in a situation of emergency where the safety of aircraft
and passengers was concerned and in the case of a merely provisional suspension. The
Secretary of State had been bound to exercise his power of suspension reasonably and with
regard to a proper balance between any adverse effects that his decision might have on the
parties affected by it and the purpose that he sought to achieve, he had not acted
irrationally in suspending the permit.

Exceptions – Legislative Process:

Bates v Lord Halisham [1972]
The committee's function was not quasi-judicial or administrative but was to make or refuse
to make a legislative instrument under delegated powers, and considerations of natural
justice or fairness did not affect the legislative process, whether primary or delegated.

Exceptions - Preliminary Investigations:

Rees v Crane [1994]
The respondent, a judge of the High Court of Trinidad and Tobago, held office subject to the
fundamental right to the protection of the law recognised by section 4(b) of the Constitution
of the Republic of Trinidad and Tobago 1976 and he could only be removed from office for
inability to perform the functions of his office, whether from infirmity of mind or body or
any other cause, or for misbehaviour. The Chief Justice of Trinidad and Tobago decided not
to include him on the roster of judges who were to sit in court for the following term. The
respondent was not told the complaints against him or given an opportunity to answer
them.
Findings – The decision of the Chief Justice to exclude the respondent from the roster, with
no indication when he would be permitted to sit in court again, was not merely an
administrative arrangement within the Chief Justice's competence but constituted an
indefinite suspension which he had no power to impose and which could not be corrected
retrospectively by the order of suspension made by the President.
Although in preliminary or initiating proceedings the person concerned generally had no
right to be heard, particularly if he was entitled to be heard at a later stage, that was not a
rigid rule; that, notwithstanding that the  procedure for removing a judge from office under
section 137 had three stages only the first of which was before the commission and at the
two later stages the judge had a right to know of and to answer the complaints made
against him, the commission had a duty to act fairly in deciding whether a complaint had
prima facie sufficient basis in fact and was serious enough to warrant making a
representation to the President; that, in view of the seriousness of the allegations and the
suspicions both for the present and the future raised by a decision to suspend a judge which
a subsequent revocation of the suspension would not necessarily dissipate and in all the
circumstances, the commission had not treated the respondent fairly in failing to inform him
at that stage of the allegations made against him or to give him a chance to reply to them in
such a way as was appropriate, albeit not necessarily by an oral hearing; and that,
accordingly, the commission had acted in breach of the principles of natural justice and had
contravened the respondent's right to the protection of the law, including the right to
natural justice.

Huntley v AG [1995]
By s.7(2) of the Offences against the Person (Amendment) Act 1992 the case of every person
who, at the date of the commencement of the Act, was already under a sentence of death
for murder, was to be reviewed by a judge of the Court of Appeal of Jamaica with a view to
determining whether the murder to which the sentence related was to be classified as
capital or non-capital murder.
A person whose case had been classified as capital murder had the right to have the
classification reviewed by three judges of the Court of Appeal of Jamaica and to appear or
be represented by counsel at the review. The appellant had been convicted of murder
before the commencement of the Act of 1992 and his offence was classified by the judge
under s.7(2) as capital murder, giving him the right to seek a review under s.7(4). The
appellant, however, issued a notice of motion under s.25 of the Constitution of Jamaica
seeking a declaration that the classification process contravened, inter alia, s.20(6) of the
Constitution, by denying a person charged with a criminal offence the opportunity to be
heard in the proceedings, and was therefore unconstitutional and null and void.
Findings – (1) That when considering fundamental rights and freedoms, the court would
look at the substance and reality of what was involved; that in reality the classification
process under s.7 of the Act of 1992 was a limited exercise whereby the judge would review
the record of the trial and ask whether, on the evidence available at the trial, a properly
directed jury could have reached any conclusion other than that the murder had been
capital murder; that since the process did not involve a determination of guilt or innocence,
it was not comparable to charging a person with a criminal offence;
(2) That although the common law requirements of procedural fairness required that a
person convicted of murder before the commencement of the Act of 1992 should be
allowed to make representations prior to a capital murder classification being made, the
legislature had established a two-stage process whereby the conviction was first to be
determined expeditiously by a single judge, and thereafter, if classified as capital murder, to
be reviewed by three judges, with the convicted person having the right to make
representations at the second stage after having received the single judge's reasons for the
initial classification;
The desirability of expedition outweighed any advantages which the convicted person might
receive as a result of being able to make representations at the first stage as well as the
second; and that, accordingly, the initial classification by the single judge of the appellant's
murder as capital murder would stand.

Practical Application of Fairness:

The claimant, Nizam Mohammed, was appointed chairman of the Police Service
Commission. Following statements made by the claimant concerning the ethnic composition
of the leadership of the Police Service, he was invited to an unspecified meeting with the
President. During the meeting, the President provided the claimant with various sources of
information pertaining to the incident and advised the claimant that he (the President) had
to consider whether the revocation of his (the claimant’s) appointment was warranted. The
claimant requested time for his lawyers to provide a legal opinion. The President asked for
the opinion to be forwarded by the morning of Monday 4 April.
The claimant was removed from office by the President under s.122A(1)(d) and (f) of the
Constitution of Trinidad and Tobago at around 10:30am on Monday 4 April. The claimant
challenged his removal from office on the grounds that it was contrary to the principles of
natural justice and therefore, procedurally flawed. The claimant asked for declarations that
his rights under s.4(b) and s.5(2)(e) of the Constitution were contravened given that he was
not afforded reasonable opportunity to address the case against him.

RECAP:
Natural justice ensures fairness for parties involved in proceedings. But, it is not unlimited in
scope, it must be balanced with competing considerations:
• Entirety of procedure or function of public body
• Nature of issue
• Consequences of issue
• Expediency