scholarly journals La preuve devant les tribunaux administratifs et quasi judiciaires

2005 ◽  
Vol 21 (3-4) ◽  
pp. 825-853
Author(s):  
Patrice Garant
Keyword(s):  
Common Law ◽  
Administrative Law ◽  
Natural Justice ◽  
Rules Of Evidence ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Administrative Justice

Procedure before quasi-judicial boards and tribunals has recently attracted abundant comment as well as some criticism. In administrative law, rules of evidence form an important part of procedure. In this paper, the author first tries to define what are the sources of the law of evidence before quasi-judicial agencies in Québec : the common law, the two Codes, statutes and regulations. Then follows in two parts an overview of the principal rules that govern the manner in which claims and arguments are brought before tribunals and the extent to which specific provisions or general principles of administrative law allow tribunals themselves to gather evidence required for the purposes of a decision. The paper suggests that administrative justice requires that the tribunal really be « master of the procedure », within the framework of natural justice.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

Reforming the Law of Evidence in Nigeria

2000 ◽  
Vol 44 (1) ◽  
pp. 128-129
Keyword(s):  
Common Law ◽  
Law Reform ◽  
Technological Advances ◽  
The Common ◽  
The Law ◽  
Law Of Evidence

The Nigerian Law Reform Commission has recently published a Report on the Reform of the Evidence Act. This was in response to a government directive to “review and reform our Evidence Act to ensure that its application more effectively facilitates the dispensation of justice in our courts”. The Report notes that the Evidence Ordinance was based on Stephen's Digest of the Law of Evidence and on the common law of England as it was in 1943. Understandably, the Report recognizes that the law of evidence had become outdated, especially in view of technological advances. As it notes:

Understanding Administrative Law in the Common Law World

2021 ◽  
Author(s):  
Paul Daly
Keyword(s):  
Future Development ◽  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Administrative Action ◽  
The Core ◽  
The Common ◽  
The Law ◽  
Pluralist Approach ◽  
Core Features

This book has three goals: to enhance understanding of administrative law; to guide future development of the law; and to justify the core features of the contemporary law of judicial review of administrative action. Around the common law world, the law of judicial review of administrative action has changed dramatically in recent decades, accelerating a centuries-long process of incremental evolution. This book offers a fresh framework for understanding the core features of contemporary administrative law. Through comparative analysis of case law from Australia, Canada, England, Ireland and New Zealand, Dr Daly develops an interpretive approach by reference to four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy. The interaction of this plurality of values explains the structure of the vast field of judicial review of administrative action: institutional structures, procedural fairness, substantive review, remedies, restrictions on remedies and the scope of judicial review, everything from the rule against bias to jurisdictional error to the application of judicial review principles to non-statutory bodies. Addressing this wide array of subjects in detail, Dr Daly demonstrates how his pluralist approach, with the values being employed in a complementary and balanced fashion, can enhance academics’, students’, practitioners’ and judges’ understanding of administrative law. Furthermore, this pluralist approach is capable of guiding the future development of the law of judicial review of administrative action, a point illustrated by a careful analysis of the unsettled doctrinal area of legitimate expectation. Dr Daly closes by arguing that his values-based, pluralist framework supports the legitimacy of contemporary administrative law which although sometimes called into question in fact facilitates the flourishing of individuals, of public administration and of the liberal democratic system.

Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984

1990 ◽  
Vol 49 (1) ◽  
pp. 80-90 ◽  
Author(s):  
C.J.W. Allen
Keyword(s):  
Common Law ◽  
The Other ◽  
Rule Of Thumb ◽  
The Common ◽  
Political Compromise ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal ◽  
The Way

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

scholarly journals The Right to Reasons in Administrative Law

1969 ◽  
pp. 305
Author(s):  
H. L. Kushner
Keyword(s):  
Common Law ◽  
Administrative Law ◽  
Decision Makers ◽  
Natural Justice ◽  
The Law ◽  
The Right

It is generally accepted that there is no common law right to reasons in administrative law. The author reviews the law to determine whether such a right exists and whether it has been changed by the enactment of the Charter of Rights. He questions whether a statutory obligation to give reasons should be enacted. Finally, he looks at the effect of failing to comply with such a requirement. He concludes that although the rules of natural justice and the enactment of s. 7 of the Charter of Rights would support a right to reasons, the courts are reluctant to impose such an obligation on the administrative decision-makers. He feels that the legislatures should require reasons. An administrative decision should be ineffective without reasons if such a requirement were imposed either by the courts or the legislatures.

An Administrative Law Code for Wales: Benefits to Reap and Obstacles to Overcome

2018 ◽  
Vol 40 (3) ◽  
pp. 273-286
Author(s):  
David C Gardner
Keyword(s):  
Common Law ◽  
Radical Change ◽  
Administrative Law ◽  
Legislative Process ◽  
National Assembly ◽  
Form Part ◽  
The Common ◽  
The Law ◽  
Near Future ◽  
Law Commission

Abstract Wales is about to undergo a radical change to the legislative process. In line with the recommendations of the Law Commission in the report Form and Accessibility of the Law Applicable in Wales, Wales will soon see its first modern legal codes. A decision will need to be made on how the law in Wales will be codified and in what areas. This article will seek to provoke discussion and argue that a code bringing together the principles of administrative law should in the near future form part of the codification programme. The article will propose a model of codification that will incorporate current principles of administrative law and supplement those principles for the benefit of the principle of good administrative justice. The article will also discuss the extent to which the National Assembly has legislative competence to make an administrative law code for Wales. Finally, the article will discuss the current common law nature of administrative law in Wales and argue that codification would bring clarity and certainty without removing the safety and flexibility of the common law.

scholarly journals Reconsidering Osmond

2019 ◽  
Vol 8 (1) ◽  
Author(s):  
Charles Noonan
Keyword(s):  
Public Service ◽  
Common Law ◽  
Administrative Law ◽  
Decision Makers ◽  
High Court ◽  
Natural Justice ◽  
The Past ◽  
The Common ◽  
High Court Of Australia ◽  
Made In

Over thirty years has now passed since the High Court of Australia held in Public Service Board (NSW) v Osmond that the common law imposes no obligation on administrative decision-makers to provide reasons for their decisions. Despite this, significant developments made in Australian administrative law since Osmond was decided may in fact cause major difficulties to a rule that has survived the past thirty years largely unscathed. In particular, this paper demonstrates that although the emergence of Li unreasonableness is unlikely to give rise to a common law duty to provide reasons, the principles of natural justice provide a solid doctrinal foundation for the High Court to reconsider the position expressed in Osmond. 

scholarly journals EXTRA-CURIAL STATEMENTS BY A NON- TESTIFYING CO-ACCUSED, THE CANADIAN SUPREME COURT AND CHANGE IN SOUTH AFRICA

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
BC Naudé
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Common Law ◽  
Constitutional Court ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal

In S v Ndhlovu (2002 (2) SACR 325 (SCA)), the court opened the door to the admissibility of extra-curial statements made by a non-testifying accused against a co-accused as hearsay in terms of section 3 of the Law of Evidence Amendment Act (45 of 1988), if the interests of justice so require. However, first the Supreme Court of Appeal and later the Constitutional Court rejected such an approach.It is beyond the scope of this comment to repeat the arguments in favour of a discretionary approach for such statements, but it is submitted that there is scope for disagreement with the findings of both courts.Whitear points out that the provisions dealing with the admissibility of hearsay in the Law of Evidence Amendment Act (45 of 1988) were not declared unconstitutional by any court. The Supreme Court of Appeal found that section 3 of the Law of Evidence Amendment Act (45 of 1988) could not be used to admit the extra-curial statement of an accused against his co- accused because the interests of justice would never allow this. The Constitutional Court found that section 3 did not override the common-law rule prohibiting the admission of extra-curial statements against a co- accused since this would amount to unfair discrimination against an accused implicated by such admissions or confessions. Significantly, because it is stated in section 3 of the Law of Evidence Amendment Act (45 of 1988) that section 3 is subject to the “provisions of any other law”, the court decided that the common-law prohibition should prevail.Previously, however, the Supreme Court of Appeal has held that the “other laws” referred to in the Law of Evidence Amendment Act (45 of 1988) are alternative ways for admitting hearsay, and do not preclude the admissibility of hearsay in terms of section 3, even where there is another law that prohibits it. The court also referred with approval to S v Ndhlovu (supra) where it was explained that the very purpose of section 3 of the Law of Evidence Amendment Act (45 of 1988) was to “supersede the excessive rigidity and inflexibility – and occasional absurdity – of the common law position” by allowing for the admission of hearsay when the interests of justice so require. The admissibility of out-of-court statements by an accused against a co- accused is also dealt with differently in the United Kingdom (our relevant common law) today. Section 114(1)(d) of the Criminal Justice Act of 2003 makes it possible to admit the out-of-court statement of an accused against a co-accused as hearsay. However, the court in R v Y (supra par 57−62) did mention that this does not mean such statements should routinely be admitted without a consideration of the relevant factors mentioned in the Criminal Justice Act of 2003 and that, in the majority of cases, it will not be in the interests of justice to admit such statements, especially those made during police interviews.Even though, under South African law, it is not currently possible to present evidence of an extra-curial statement made by an accused that also implicates a co-accused, the recent judgment by the Canadian Supreme Court in R v Bradshaw (2017 SCC 35) provides insight into how this could possibly happen in future. It is thus useful to consider the Supreme Court’s decision.

Murphy on Evidence

2017 ◽  
Author(s):  
Richard Glover
Keyword(s):  
Teaching Method ◽  
Common Law ◽  
Standard Of Proof ◽  
Online Resource ◽  
Character Evidence ◽  
Unique Approach ◽  
The Common ◽  
The Law ◽  
Law Of Evidence

Murphy on Evidence is firmly established as a leading text for use on undergraduate law courses and in preparation for professional examinations. Frequently consulted by judges and practitioners, and regularly cited in judgments, it has come to be regarded as a work of authority throughout the common law world. The book’s unique approach effectively bridges the gap between academic study of the law of evidence and its application in practice, combining detailed analysis of the law with a wealth of practical information about how it is used in the courtroom. As in previous editions, the author’s teaching method is centred around two realistic case studies—one criminal and one civil—presenting challenging evidence issues and questions for discussion at the end of each chapter. The case study material for this new edition has been further developed with new videos on the Online Resource Centre. Fully up to date with the latest developments in this fast-moving subject, the fifteenth edition of Murphy on Evidence is as indispensable as its predecessors. Topics include: the language of the law of evidence; the judicial function in the law of evidence; the burden and standard of proof; character evidence; and the rule against hearsay.

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