Fairness and the issues

In some situations, tribunals may be given powers to make orders affecting the rights of parties without the need for an oral hearing. In applications for revocation of parole, under the applicable United Kingdom legislation, but not in many other jurisdictions, including New Zealand (Parole Act 2002, s 65(4)(a)), the Parole Board need not hear orally from the respondent or his counsel. Fairness issues may consequently arise, and they did in R v Parole Board, ex parte Smith and West [2005] UKHL 1 (27 January 2005).

Several points were made in this case:

• Whether absence of an oral hearing affects the fairness of the proceedings depends on the circumstances of each case (Lord Bingham, para 27).
• The requirement that the proceedings be fair is fundamental, and arises from the common law rather than being dependent upon the existence of the ECHR or any other Bill of Rights document (Lord Bingham, para 44; Lord Hope para 74).
• An oral hearing may be of use in more circumstances than merely those where some issue of fact has to be decided. Examples are where explanations or mitigating factors may be relevant, or new relevant facts may be brought to light (Lord Bingham, para 35).
• A risk of unfairness arises if only written submissions are permitted and consequently the respondent is not aware of what the tribunal considers important (Lord Bingham, para 35).
• A danger posed by procedures that are routinely disposed of on the papers is that assumptions will be made that are prejudicial to the respondent and in favour of the case advanced by the authorities (Lord Hope, para 66).

One significant point that will have implications for appellate procedures is the need to alert the appellant to issues that the court may consider to be important. Appellants who are unable to obtain legal representation often file written submissions for the consideration of the appellate court, and these are sometimes focused on entirely irrelevant matters. In such cases, the question arises whether the court should seek further submissions on what appears to it to be significant (to the extent that the court is able to identify what that may be; this may be impossible, especially in the absence of a transcript of the trial judge’s directions to the jury).

Similarly, where a court is hearing oral argument on a question of law, should it inform the parties of points that concern it? Occasionally, one encounters coyness from judges who are shy about showing their hand, and sometimes decisions are made on points that have not been fully addressed in argument. One might even wonder whether it is fair for courts to conclude hearings, and reserve decisions, without their being clear as to what the ultimate decision will be.