Decision Making in the Context of the Administrative Sanctions Procedure

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Decision Making in the Context of the
Administrative Sanctions Procedure

• A programme for Inquiry Members of the Financial
  Service Regulatory Authority
• 19 and 26 May, 2007
• G Brian Hutchinson, BCL LLM DAL FCIArb BL
• Vice Dean, School of Law

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Administrative and Constitutional Aspects

• Reminder on Sources of Law.
• .Public v. Private Law.
• .Appeal v.s Review.
• Judicial Review of Administrative Action

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Judicial Review of Administrative Action

• Reviewable decisions?
• If Any body of persons having legal authority to
  determine questions affecting the rights of
  subjects, and having the duty to act judicially,
  act in excess of their legal authority they are
  subject to the controlling jurisdiction of the
  Kings Bench High Court
• R. v. Electricity Commissioners, Lord Atkin

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Is the Inquiry Judicially Reviewable?

• Suggestion Inquiry is not a court but exercises
  judicial / quasi judicial function.
• Indicia of judicial function
• Lis inter partes (dispute between two parties).
• Resolution lies with body obliged to determine
  dispute in accordance with law or principle
  rather than policy or discretion.
• Resolution is final, subject to appeal, and
  capable of enforcement.
• Indicia of quasi-judicial function
• All the above but may include the exercise of a
  discretion.

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Test for public element

• Public Element Test (Eogan v. UCD)
• Decision requiring resolution arising out of
  private contract not usually capable of review as
  a private law matter rather than public law
  matter in nature, unless
• Decision challenged is made pursuant to a statute.

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Conclusion

• Inquiry falls within ambit of
• Judicial function,
• Quasi judicial function, and
• Public element test.
• Power to issue binding and enforceable
  determinations can affect the interests and
  rights of the parties.

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Thus

• Inquiry must adhere to the principles and rules
  applicable to hearing, conducting and determining
  the rights of persons the rules of fair
  procedures and natural and constitutional
  justice.

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Fundamental Principles of Natural /
Constitutional Justice

• Tribunal / Adjudicators functions, powers and
  obligations attract two fundamental principles
  essential to the proper legal functioning of the
  body.
• Non observance of principles can render
  determinations null and void through judicial
  review proceedings quashing the determination so
  made.

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Principle 1

• Bias (nemo iudex in causa sua principle)
• Decision making body must be impartial.
• Decision making body that lacks impartiality can
  be restrained from hearing matter or have
  decision quashed.
• Bias must be objectionable.

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Types of Bias

• Bias can be manifest
• Personal grievance against a party.
• Behaviour during proceedings displays a lack of
  fairness.
• Bias can be subtle
• Has material interest in the proceedings.
• Relationship or connection with a party to the
  proceedings.

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Establishing Bias

• Establishing Bias
• Allegation or apprehension of bias insufficient.
• Material or pecuniary interest association with
  proceedings may raise inference of bias.
• Test is whether there is reasonable or real
  likelihood of bias.

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Examples

• Examples of Objectionable Bias
• Material or Pecuniary Interest.
• Avoided by member declining to sit / hear the
  proceedings.
• Ill-will or malice.
• May arise from hostile interaction between
  member and party to the proceedings.

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Bias contd

• Ties of relationship or acquaintance with a party
  to the proceedings
• Family,
• Friend,
• Association,
• Legal representative (relative),
• Witness.

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Bias contd

• Prejudging the proceedings
• Difficult to establish where a fair hearing is
  afforded the parties.
• Could arise where Examination official sits on
  the Inquiry.

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Bias contd

• 5. Conducting the hearing improperly
• Preventing the calling of witnesses.
• Preventing presentation of case through numerous
  interruptions.
• Favouring or appearing to favour one side over
  the other.
• Inspecting or authorising the inspection of a
  premises or witness or evidence in the presence
  of one of the parties but not the other.

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Bias contd

• Practical matters to avoid
• Assistance given in preparing case.
• Advice given in preparing case.
• Overtly favouring one party in the course of the
  hearing.
• Overtly prejudicing or disadvantaging one party
  in the course of the hearing.

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Principle 2

• Requirement of a fair hearing (audi alteram
  partem)
• No person should be judged unheard.
• Often referred to as the concept of natural
  justice.
• Also referred to as constitutional justice
  and fair procedures.
• Terms are used interchangeably.

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Requirement of a fair hearing contd

• Purpose of hearing
• Enables decision maker to arrive at a correct
  and just result.
• Enables the party to engage and participate in
  the proceedings.
• Enables the party to appreciate the decision
  of the decision maker having participated in the
  proceedings.

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Requirement of a fair hearing contd

• Factors affecting the need for a fair hearing
• Varies according to the nature of the issue at
  dispute, allegations of wrongdoing and sanctions.
  
• Courts lean towards their own practices and
  procedures.
• Nature of the body making the decision can affect
  the criteria needed for a fair hearing.
• Previous conduct of the decision maker might lead
  to legitimate expectation of consultation and
  engaging in the decision making process.
• Party may not be entitled to a hearing where
  there is a failure to satisfy some preliminary or
  procedural requirement.

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Requirement of a fair hearing contd

• Pre hearing requirements to comply with a fair
  hearing
• Prior Notice
• A party affected by the decision making process
  must be given notice of the hearing.
• The notice must be adequate to enable proper
  preparation for the hearing.
• May impact on a request for granting an
  adjournment.

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Requirement of a fair hearing contd

• Denial of a hearing
• Preventing a party attending the hearing is a
  prima facie breach of the constitutional right to
  a fair hearing and renders the decision made by
  the decision maker subject to judicial review and
  being quashed by an order of certiorari..

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Requirement of a fair hearing contd

• Elements of a fair hearing
• 1. Hearing must be conducted in a fair manner.
• Proper and uninhibited scope to present their
  case.
• Equal treatment to both parties.
• Giving no unfair advantage to one side unless
  one party is not represented.
• Avoid excessive intervention and interruption
  by decision maker.

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Requirement of a fair hearing contd

• Attendance of witnesses
• Party must be allowed give evidence in support
  of their case and must also be allowed have
  witnesses attend and give material evidence of
  that partys behalf.

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Requirement of a fair hearing contd

• 3. Examination of witnesses
• Essential element to a fair hearing.
• Each party has the right to question the
  evidence given by the other party.
• Each party has the right to question the
  evidence given by a witness called to support
  that partys case.

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Requirement of a fair hearing contd

• Legal representation
• No obligation to provide legal representation.
• Cannot prevent a party presenting their case
  through a legal representative or other person.
• Where decision making process expressly provides
  for legal representation such will be strictly
  enforced.

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Jurisdiction and Acting Lawfully

• Inquiry established by Statute.
• Statute gives legal status to Inquiry.
• Inquirys lawful authority to act is governed by
  the statute creating it.
• Tribunal operates lawfully by complying with the
  provisions of the Act.
• Statute confers jurisdiction upon Inquiry to
  determine whether contravention has occurred
• Inquiry can ONLY determine disputes in accordance
  with the provisions of the Statute.

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Jurisdiction and Acting Lawfully contd

• If Tribunal has no jurisdiction, it cannot act or
  if it does so act, acts without lawful authority
  (acting without jurisdiction).
• If Tribunal acts in excess of jurisdiction, the
  decision or action is invalid (acting in excess
  of jurisdiction).
• Want of jurisdiction in either scenario results
  in unlawful authority rendering any decision or
  action invalid.

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Jurisdiction and Acting Lawfully contd

• Acting without or in excess of jurisdiction
• Improperly constituted Inquiry

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Jurisdiction and Acting Lawfully contd

• Non compliance with rules for commencing inquiry
• Both a breach of natural / constitutional
  justice and jurisdictional error invalidating the
  Inquirys jurisdiction.
• Failure to include correct information in the
  notice

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Jurisdiction and Acting Lawfully contd

• Non compliance with jurisdictional limits
• Sanctions
• Sanctions where criminal offences involved

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Jurisdiction and Acting Lawfully contd

• Failing to hold hearing in public? Delicate! If
  Service Provider demands it factors to
  consider.

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Jurisdiction and Acting Lawfully contd

• Infringes natural or constitutional justice
  principles
• Bias.
• Material or Pecuniary Interest.
• Ill-will or malice.
• Ties of relationship or acquaintance with a party
  to the proceedings.
• Prejudging the proceedings.
• Conducting the hearing improperly.

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Jurisdiction and Acting Lawfully contd

• Requirement of a fair hearing
• Prior Notice.
• Denial of a hearing.
• Hearing must be conducted in a fair manner.
• Attendance of witnesses.
• Examination of witnesses.
• Legal representation.

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Jurisdiction and Acting Lawfully contd

• Errors of law
• Interpretation or construction of statute.
• Error in determination of a legal issue.
• Consideration of irrelevant material or
  disregarding relevant material.
• Rigid adherence to policy where a discretion
  exists but is never exercised as a matter of
  policy.
• Error in admission or exclusion of evidence.