Saturday, 30 June 2012


On this topic one could write a book , and so I have decided to restrict this article to a topic , which lawyers define as procedural fairness .

Following the procedures laid down in the club’s constitution and regulations is one thing , but to do so in a manner and way that meets the broad requirements of natural justice is another. Indeed, in a leading Australian case Kioa v West, the judge equated natural justice to procedural fairness , which could be divided into two categories : one is simply referred to as the bias rule , and the other the hearing rule.

Bias will always feature in small private/voluntary clubs where cosy and close relationships are commonplace. The reality here is that everyone knows each other, having strong opinions on who they like and dislike. Obviously, bias is always present when malice rears its ugly head. Then of course  bias can always be established when negative attitudes and/or intent a have been expressed by committee members in writing about a particular member ,  long before the incident which triggered his/her disciplinary .

Committee members will either be involved in the fact finding or decision making process , but they must all endeavour to be impartial , as  this is a fundamental requirement of being a fair juror. Although bias can be either conscious or unconscious , it must never be seen as unreasonable ,  if courts are to be satisfied that the requirements of procedural fairness have been met.

However, in circumstances where the alleged wrongdoer has not been present at his/her own  hearing, the opportunity to perceive or witness bias has been denied. This increases the likelihood that prevailing negative attitudes and animosity towards him go unchallenged. He/she is unable to ask for the removal of biased committee members , which means the onus in effect falls on such people to remove themselves from the disciplinary proceedings. A situation that very rarely ever happens.

Proving bias becomes that much easier when committee members come to the disciplinary hearing with a personal interest , or opinion already formed in their minds, . Indeed , the law requires committee members to approach their duties with an open mind , which simple means open to persuasion . In an American case Marshall v Maguire (1980 ) , a biased panellist , whose prejudice clearly gave rise to prejudgement, was deemed to have cast a shadow on the university’s entire disciplinary process. Consequently, the court had no option but to overturn the rulings of both the original and appellate hearings. An appropriate test for establishing bias in the UK was laid down in Porter v Magill (2001) as follows :  " whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased ".

It also has to noted that in the heated atmosphere of emotionally charged club committee rooms there is very little chance that impartial decisions can ever be reached. Biased committee members often utilise their passion and determination to steer home their personal agendas . Moreover , when strong allegiances and alliances dominate a committee group, the influence of bias becomes that much greater. Misplaced loyalties and the desire to conform and appease those in the driving seat  , enable these powerful figures  to put down and dismiss any dissenting voices with ease.

Nevertheless , the fact remains courts will continue to review each case solely upon its particular circumstances . The key question now appears to be “ what does the duty to act fairly require in the circumstances of this particular case ? “. However , when expulsions are on the agenda  the damage to the individual is so serious that the circumstances now require far greater care taken by the committee  . This suggests that every effort must be made to act fairly , which can only mean taking reasonable steps to remove bias wherever it is seen to be lurking .

( In my next instalment ,  I shall be discussing the hearing rule )

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