Natural justice and its application to multi-tiered proceedings

• Author: Calvin A. Eversley
• Position: LL.M. (Harvard), LL.B. (Hons), LEG., D.P.A/ (Distinction)
• Pages: 71-92

NATURAL JUSTICE AND ITS APPLICATION

TO MULTI-TIERED PROCEEDINGS

Some Perspectives on the Guyana Court of Appeal's

Decision

in the

Barnwell

case*

and

the Judicial

Committee

of

the

Privy Council's

Decision

in the Crane case.

CALVIN A. EVERSLEY***

CONTEXTUAL OVERVIEW

OF

GOVERNING PRINCIPLES

APPLICABLE TO PRELIMINARY PROCEEDINGS

The principles of natural justice are of ancient and highly venerable vintage. As

alluded to by Fortescue J in R. v University of Cambridge,1 these principles of

fundamental justice have their origin in no less a person than God Himself in the

first trial of man ever held.2 Later, we see that God again applies the principles of

natural justice to the second recorded trial in the history of mankind, namely, the

trial of Cain for the murder of his brother, Abel.3

Given such an eminently auspicious and highly authoritative foundation, no

one today, least of all this writer, would seriously contend that any legally

unwarranted or unsupportable abridgement or non-application of its prerequisites

would not amount to an affront to basic and universal concepts of decency and

fairness.

It is manifestly clear, however, from even a casual perusal of the pertinent case

law, that the issue regarding the application of natural justice principles to the

preliminary stage of a multi-tiered proceeding or process, where the affected party

Barnwell v. A.G. of Guyana et al., and Appeal No.84 of 1991.

Rees v. Crane [1994] 2 W.L.R. 476.

LL.M. (Harvard), LL.B. (Hons), LEG., D.P.A/ (Distinction); Senior Lecturer in Law and

Head, Department of Law, University of Guyana; Former Assistant Attorney-General,

USVI Department of Justice; Former Magistrate, Guyana.

1 (1723) 93 E.R.698.

2 The Holy Bible, Authorised King James Version, Genesis Chapter 3, verses 9-19.

3 Ibid., Genesis Chapter 4, verses 9-16.

is entitled to a full hearing at some later stage, is a much more complicated one

than is the case with a single-stage proceeding.

The basis of this complication is founded firstly on the fact that the affected

party has to overcome the argument, and the legal authorities which undergird this

argument, that he would be afforded his full rights to natural justice at a later non-

preliminary stage of the proceedings and, therefore, would not be seriously

prejudiced if such rights were not afforded at the preliminary stage. Another basis

for this complication is the recognition that the proponents of the view opposed to

affording natural justice rights at the preliminary stage of

a

multi-tiered proceeding

would, correspondingly, have to show that their case falls within the ambit of the

authorities which establish the general practice in support of their position.

In the Barnwell case, as will be seen later, the Guyana Court of Appeal, as a

whole, did not adequately discuss and/or apply the legal principles applicable to the

complicating factors mentioned earlier in this article. On the other hand, the

Judicial Committee of the Privy Council (hereinafter referred to as the "Privy

Council") in the Crane case certainly treated the complicating factors

aforementioned in a sufficiently satisfactory manner. For instance, Lord Slynn of

Hadley, who delivered the judgment of the Privy Council, after endorsing the

general practice gleaned from the cases and outlined by Professor de Smith,4 clearly

distinguished the Crane case as falling outside the ambit of the general practice

because the appellants could not "rely on urgency or administrative necessity to

justify not telling the respondent what was being complained of".5 It is interesting

to note that, although Kennard J. A., as he then was, in the Barnwell case,6 referred

to the fact that "the nature of the charge and the exigencies of the moment might

perhaps call for immediate action" in discussing the case of Birrs v. Secretary of

Justice, 7 yet there is no intimation that he or any of the other Justices of Appeal

ever applied the "urgency or administrative necessity" test to that case.

Therefore, as it presently stands in terms of the Barnwell case, one important

question that remains unanswered is whether any of the learned Justices of Appeal

held any duly considered view as to whether the seriousness and circumstances of

the allegation against Barnwell, coupled with the exigencies of ensuring that the

public interest elements relating to protecting the integrity of the judiciary and the

interests of the public were appropriately and timely served, justified his immediate

suspension.

4 De Smith,

Judicial

Review of Administrative Action (4th edn. 1980), p.199.

5 Rees v. Crane, supra, at 488.

6 Per Kennard JA in the Barnwell case, supra, at 9.

7 [1984] 1NZLR 513.