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Guidelines on the Principles of Natural Justice

The rules of natural justice are the minimum standards of fair decision-making imposed on persons or bodies acting in a judicial capacity. Where the relevant person or body is required to determine questions of law or fact in circumstances where its decisions will have a direct impact on the rights or legitimate expectations of the individuals concerned, an implied obligation to observe the principles of natural justice arises. However, there is in any case an express requirement on the Referee to conduct hearings in accordance with the principles of natural justice
The rules of natural justice consist of the following elements:

1.

The right to fair hearing

 

The right to fair hearing requires that an individual shall not be penalised by a decision affecting his rights or legitimate expectations unless he has been given prior notice of the case against him and a fair opportunity to answer the case against him and to present his own case. Each individual must therefore have the opportunity to present his version of the facts and to make submissions on the relevant principles of the Code and the alleged breaches.
The right to a fair hearing involves the following:

 

a.

Prior notice of the hearing.

     

Natural justice generally requires that the person who has been reported should be given adequate notice of the allegations against him and of the procedure for determining the alleged breaches of the Code so that he may be in a position to make representations on his own behalf, to appear at the hearing, to effectively prepare his own case and to answer the case against him. The time and location of the hearing must also be properly notified to the reported person.
The Code provides that the Referee must inform the Captain or Manager of the reported person of the receipt of a Report alleging a breach of the Code as soon as possible, save in the case of a Report lodged by one or both of the Umpires. However, in this last case, the Umpire is required to inform the Captain or Manager of the reported person. In all these cases, it would be prudent for the Referee to ensure that the reported person is informed as soon as possible of the allegations contained in the Report, and is given details of the alleged breach of the Code and the time and location of the proposed hearing. The Code does not indicate that the Report itself should be given to the reported person.

 

b.

Opportunity to be heard

     

The reported person has a right to attend the hearing and be allowed to present his case. This is confirmed in paragraph 4 (b) (ii) of the section of the Code entitled ‘ICC Referee. Where the Referee is satisfied that the reported person has been given adequate notice of the alleged breach of the Code and of the time and location of the hearing, he may allow the hearing to proceed if the reported person fails to attend. However, it may not be justifiable to proceed if the time or location fixed for the hearing is such that the person cannot reasonably be expected to attend. The Referee should also not proceed with the hearing if the reported person has failed to appear through some misapprehension about the hearing such as its timing or location.

 

c.

The conduct of the hearing

     

Generally when an oral hearing is conducted, the parties must be allowed to call witnesses, make submissions and cross-examine the witnesses called by others. The reported person should be informed of the nature of the alleged breach and be given details of the allegations and evidence against him. Indeed, as mentioned above, the Referee should ensure that the reported person has been given details of the allegations in advance. The reported person must be given a fair opportunity to answer the case against him, of contradicting or correcting all allegations and of adducing evidence in support of his own case.

 

d.

The right to legal representation

     

The Referee would normally be within his rights not to allow legal representation of the reported person or any other person at the hearing, where the potential sanction is not severe. However, if the potential sanction is severe it might be difficult in practice to resist the reported person being legally represented, although there is English case law which suggests that a domestic tribunal can refuse legal representation unless there are complex issues of law involved, which will almost certainly not be the case here. The laws and practices of the local jurisdiction where the hearing takes place will not necessarily be the same as in England.

 

e.

The decision and the reasons for it

     

The Code requires that the Referees decision has to be given as soon as possible but no later than 24 hours after the incident, unless there are exceptional circumstances. In addition, the Referee must inform the reported person of his decision, and having done that, inform (and confirm in writing) the Chief Executive Officer, or his nominee, of his decision.
There is nothing in the Code to indicate whether or not the Referee should give reasons for his decision. It is imagined, however, that it would normally be helpful for everybody if the Referee did so. It would in any case assist others in the determination of future alleged breaches of the Code and its interpretation.

2.

The rule against bias

 

The two main aspects of this rule are that a person adjudicating on a dispute must have no pecuniary or proprietary interest in the outcome of the proceedings and must not reasonably be suspected, or show a real likelihood, of bias.
The rule against bias also provides that a party should not normally be judged by his accuser. Under the provisions of the Code, it is possible for the Referee both to report an alleged breach of the Code and to act in a judicial capacity in deciding whether there was such a breach and if so, the appropriate penalty. The Referee must be able to show that, having reported an incident, he has then conducted a full enquiry into the circumstances involved before making his decision. There should be no suggestion that prior to the commencement of the proceedings he has irrevocably decided the outcome based on the grounds upon which the proceedings have been instigated without hearing contrary evidence.

3.

Judicial Review

 

It should be noted that although the above are guidelines aimed at ensuring a fair hearing concerning alleged breaches of the Code, nevertheless, depending on the circumstances of the case, a decision reached or hearing conducted in breach of the principles of natural justice may be reviewable by the Courts in an action for judicial-review. This is the position in England although the legal position may be different in other countries.

4.

Severe Sanctions

 

If a Referee believes that an exceptionally severe sanction may be imposed on a player, he may feel that he ought himself to take some legal advice in advance about the problems or issues which may arise in the course of the hearing, or thereafter.


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