Fairness doctrine

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Fairness_doctrine

The fairness doctrine of the United States Federal Communications Commission (FCC), introduced in 1949, was a policy that required the holders of broadcast licenses both to present controversial issues of public importance and to do so in a manner that fairly reflected differing viewpoints. In 1987, the FCC abolished the fairness doctrine, prompting some to urge its reintroduction through either Commission policy or congressional legislation. The FCC removed the rule that implemented the policy from the Federal Register in August 2011.

The fairness doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters. Stations were given wide latitude as to how to provide contrasting views: It could be done through news segments, public affairs shows, or editorials. The doctrine did not require equal time for opposing views but required that contrasting viewpoints be presented. The demise of this FCC rule has been cited as a contributing factor in the rising level of party polarization in the United States.

While the original purpose of the doctrine was to ensure that viewers were exposed to a diversity of viewpoints, it was used by both the Kennedy and later the Johnson administration to combat political opponents operating on talk radio. In 1969 the United States Supreme Court, in Red Lion Broadcasting Co. v. FCC, upheld the FCC's general right to enforce the fairness doctrine where channels were limited. However, the court did not rule that the FCC was obliged to do so. The courts reasoned that the scarcity of the broadcast spectrum, which limited the opportunity for access to the airwaves, created a need for the doctrine.

The fairness doctrine is not the same as the equal-time rule, which is still in place. The fairness doctrine deals with discussion of controversial issues, while the equal-time rule deals only with political candidates.

Origins

In 1938, a former Yankee Network employee named Lawrence J. Flynn challenged the license of John Shepard III's WAAB in Boston, and also lodged a complaint about WNAC. Flynn asserted that these stations were being used to air one-sided political viewpoints and broadcast attacks (including editorials) against local (and federal) politicians that Shepard opposed. The FCC requested that Shepard provide details about these programs, and to appease the commission, the Yankee Network agreed to drop the editorials. But Flynn created a company called Mayflower Broadcasting and tried to get the FCC to award him WAAB's license; however, the FCC refused. Instead, in 1941, the commission made a ruling that came to be known as the Mayflower Decision which declared that radio stations, due to their public interest obligations, must remain neutral in matters of news and politics, and they were not allowed to give editorial support to any particular political position or candidate.

In 1949, the FCC's Editorializing Report repealed the Mayflower doctrine, which had forbidden editorializing on the radio since 1941, and laid the foundation for the fairness doctrine by reaffirming the FCC's holding that licensees must not use their stations "for the private interest, whims or caprices [of licensees], but in a manner which will serve the community generally." The FCC Report established two forms of regulation on broadcasters: to provide adequate coverage of public issues, and to ensure that coverage fairly represented opposing views. The second rule required broadcasters to provide reply time to issue-oriented citizens. Broadcasters could therefore trigger fairness doctrine complaints without editorializing. The commission required neither of the fairness doctrine's obligations before 1949. Until then broadcasters had to satisfy only general "public interest" standards of the Communications Act.

The doctrine remained a matter of general policy and was applied on a case-by-case basis until 1967, when certain provisions of the doctrine were incorporated into FCC regulations.

In 1969, the United States courts of appeals, in an opinion written by Warren Burger, directed the FCC to revoke Lamar Broadcasting's license for television station WLBT due to the station's segregationist politics and ongoing censorship of NBC network news coverage of the U.S. civil rights movement.

Application of the doctrine by the FCC

In 1974, the Federal Communications Commission stated that the Congress had delegated the power to mandate a system of "access, either free or paid, for person or groups wishing to express a viewpoint on a controversial public issue" but that it had not yet exercised that power because licensed broadcasters had "voluntarily" complied with the "spirit" of the doctrine. It warned that:

Should future experience indicate that the doctrine [of 'voluntary compliance'] is inadequate, either in its expectations or in its results, the Commission will have the opportunity—and the responsibility—for such further reassessment and action as would be mandated.

In one landmark case, the FCC argued that teletext was a new technology that created soaring demand for a limited resource, and thus could be exempt from the fairness doctrine. The Telecommunications Research and Action Center (TRAC) and Media Access Project (MAP) argued that teletext transmissions should be regulated like any other airwave technology, hence the fairness doctrine was applicable (and must be enforced by the FCC). In 1986, Judges Robert Bork and Antonin Scalia of the United States Court of Appeals for the District of Columbia Circuit concluded that the fairness doctrine did apply to teletext but that the FCC was not required to apply it.  In a 1987 case, Meredith Corp. v. FCC, two other judges on the same court declared that Congress did not mandate the doctrine and the FCC did not have to continue to enforce it.

Decisions of the United States Supreme Court

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the U.S. Supreme Court upheld (by a vote of 8–0) the constitutionality of the fairness doctrine in a case of an on-air personal attack, in response to challenges that the doctrine violated the First Amendment to the U.S. Constitution. The case began when journalist Fred J. Cook, after the publication of his Goldwater: Extremist of the Right, was the topic of discussion by Billy James Hargis on his daily Christian Crusade radio broadcast on WGCB in Red Lion, Pennsylvania. Cook sued arguing that the fairness doctrine entitled him to free air time to respond to the personal attacks.

Although similar laws are unconstitutional when applied to the press, the court cited a Senate report (S. Rep. No. 562, 86th Cong., 1st Sess., 8-9 [1959]) stating that radio stations could be regulated in this way because of the limited public airwaves at the time. Writing for the court, Justice Byron White declared:

A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others. ... It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.

Moreover, the court did not see how the fairness doctrine went against the First Amendment's goal of creating an informed public. The fairness doctrine required that those who were talked about be given chance to respond to the statements made by broadcasters. The court believed that this helped create a more informed public. Justice White explained that, without this doctrine, station owners would only have people on the air who agreed with their opinions. Throughout his opinion, Justice White argued that radio frequencies (and by extension television stations) should be used to educate the public about controversial issues in a way that is fair and non-biased so that they can create their own opinions.

The court "ruled unanimously in 1969 that the Fairness Doctrine was not only constitutional but essential to democracy. The public airwaves should not just express the opinions of those who can pay for air time; they must allow the electorate to be informed about all sides of controversial issues." The court also warned that if the doctrine ever restrained speech, then its constitutionality should be reconsidered. Justice William O. Douglas did not participate, but later wrote that he would have dissented because the Constitutional guarantee of Freedom of the press was absolute.

However, in the case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Chief Justice Warren Burger wrote (for a unanimous court):

Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate.

This decision differs from Red Lion v. FCC in that it applies to a newspaper, which, unlike a broadcaster, is unlicensed and can theoretically face an unlimited number of competitors.

In 1984, the Supreme Court ruled that Congress could not forbid editorials by non-profit stations that received grants from the Corporation for Public Broadcasting (FCC v. League of Women Voters of California, 468 U.S. 364 (1984)). The court's 5-4 majority decision by William J. Brennan Jr. stated that while many now considered that expanding sources of communication had made the fairness doctrine's limits unnecessary:

We are not prepared, however, to reconsider our longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required.

After noting that the FCC was considering repealing the fairness doctrine rules on editorials and personal attacks out of fear that those rules might be "chilling speech", the court added:

Of course, the Commission may, in the exercise of its discretion, decide to modify or abandon these rules, and we express no view on the legality of either course. As we recognized in Red Lion, however, were it to be shown by the Commission that the fairness doctrine '[has] the net effect of reducing rather than enhancing' speech, we would then be forced to reconsider the constitutional basis of our decision in that case. (footnote 12)

Use as a political weapon

The fairness doctrine has been used by various administrations to harass political opponents on the radio. Bill Ruder, Assistant Secretary of Commerce in the Kennedy administration, acknowledged that "Our massive strategy [in the early 1960s] was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue." Former Kennedy FCC staffer Martin Firestone wrote a memo to the Democratic National Committee on strategies to combat small rural radio stations unfriendly to Democrats:

The right-wingers operate on a strictly cash basis and it is for this reason that they are carried by so many small stations. Were our efforts to be continued on a year-round basis, we would find that many of these stations would consider the broadcasts of these programs bothersome and burdensome (especially if they are ultimately required to give us free time) and would start dropping the programs from their broadcast schedule.

Democratic Party operatives were deeply involved in the Red Lion case since the start of the litigation. Wayne Phillips, a Democratic National Committee staffer described the aftermath of the ruling, explaining that "Even more important than the free radio time was the effectiveness of this operation in inhibiting the political activity of these right-wing broadcasts".

The use of the fairness doctrine by the National Council for Civic Responsibility (NCCR) was to force right-wing radio stations to air rebuttals against the opinions expressed on their radio stations.

Revocation

Basic doctrine

In 1985, under FCC Chairman Mark S. Fowler, a communications attorney who had served on Ronald Reagan's presidential campaign staff in 1976 and 1980, the FCC released its report on General Fairness Doctrine Obligations stating that the doctrine hurt the public interest and violated free speech rights guaranteed by the First Amendment. The commission could not, however, come to a determination as to whether the doctrine had been enacted by Congress through its 1959 Amendment to Section 315 of the Communications Act.

In response to the 1986 Telecommunications Research & Action Center v. F.C.C. decision, the 99th Congress directed the FCC to examine alternatives to the fairness doctrine and to submit a report to Congress on the subject. In 1987, in Meredith Corporation v. F.C.C. the case was returned to the FCC with a directive to consider whether the doctrine had been "self-generated pursuant to its general congressional authorization or specifically mandated by Congress."

The FCC opened an inquiry inviting public comment on alternative means for administrating and enforcing the fairness doctrine. Then, in its 1987 report, the alternatives—including abandoning a case-by-case enforcement approach, replacing the doctrine with open access time for all members of the public, doing away with the personal attack rule, and eliminating certain other aspects of the doctrine—were rejected by the FCC for various reasons.

On August 4, 1987, under FCC Chairman Dennis R. Patrick, the FCC abolished the doctrine by a 4–0 vote, in the Syracuse Peace Council decision, which was upheld by a panel of the Appeals Court for the D.C. Circuit in February 1989, though the court stated in their decision that they made "that determination without reaching the constitutional issue." The FCC suggested in Syracuse Peace Council that because of the many media voices in the marketplace, the doctrine be deemed unconstitutional, stating that:

The intrusion by government into the content of programming occasioned by the enforcement of [the fairness doctrine] restricts the journalistic freedom of broadcasters ... [and] actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists.

At the 4–0 vote, Chairman Patrick said:

We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country's inception.

Sitting commissioners at the time of the vote were:

• Dennis R. Patrick, chairman, Republican
  (Named an FCC commissioner by Ronald Reagan in 1983)
• Mimi Weyforth Dawson, Republican
  (Named an FCC commissioner by Ronald Reagan in 1986)
• Patricia Diaz Dennis, Democrat
  (Named an FCC commissioner by Ronald Reagan in 1986)
• James Henry Quello, Democrat
  (Named an FCC commissioner by Richard M. Nixon in 1974)

The FCC vote was opposed by members of Congress who said the FCC had tried to "flout the will of Congress" and the decision was "wrongheaded, misguided and illogical". The decision drew political fire, and cooperation with Congress was one issue. In June 1987, Congress attempted to preempt the FCC decision and codify the fairness doctrine, but the legislation was vetoed by President Ronald Reagan. Another attempt to revive the doctrine in 1991 was stopped when President George H. W. Bush threatened another veto.

Fowler said in February 2009 that his work toward revoking the fairness doctrine under the Reagan administration had been a matter of principle (his belief that the doctrine impinged upon the First Amendment), not partisanship. Fowler described the White House staff raising concerns, at a time before the prominence of conservative talk radio and during the preeminence of the Big Three television networks and PBS in political discourse, that repealing the policy would be politically unwise. He described the staff's position as saying to Reagan:

The only thing that really protects you from the savageness of the three networks—every day they would savage Ronald Reagan—is the Fairness Doctrine, and Fowler is proposing to repeal it!

Conservative talk radio

The 1987 repeal of the fairness doctrine enabled the rise of talk radio that has been described as "unfiltered" divisive and/or vicious: "In 1988, a savvy former ABC Radio executive named Ed McLaughlin signed Rush Limbaugh — then working at a little-known Sacramento station — to a nationwide syndication contract. McLaughlin offered Limbaugh to stations at an unbeatable price: free. All they had to do to carry his program was to set aside four minutes per hour for ads that McLaughlin's company sold to national sponsors. The stations got to sell the remaining commercial time to local advertisers." According to The Washington Post, "From his earliest days on the air, Limbaugh trafficked in conspiracy theories, divisiveness, even viciousness" (e.g., "feminazis"). Prior to 1987 people using much less controversial verbiage had been taken off the air as obvious violations of the fairness doctrine.

Corollary rules

Two corollary rules of the doctrine, the personal attack rule and the "political editorial" rule, remained in practice until 2000. The "personal attack" rule applied whenever a person (or small group) was subject to a personal attack during a broadcast. Stations had to notify such persons (or groups) within a week of the attack, send them transcripts of what was said and offer the opportunity to respond on-the-air. The "political editorial" rule applied when a station broadcast editorials endorsing or opposing candidates for public office, and stipulated that the unendorsed candidates be notified and allowed a reasonable opportunity to respond.

The U.S. Court of Appeals for the D.C. Circuit ordered the FCC to justify these corollary rules in light of the decision to repeal the fairness doctrine. The FCC did not provide prompt justification so both corollary rules were repealed in October 2000.

Reinstatement considered

Support

In February 2005, U.S. Representative Louise Slaughter (D-NY) and 23 co-sponsors introduced the Fairness and Accountability in Broadcasting Act (H.R. 501) in the 1st session of the 109th Congress of 2005-2007 (when Republicans held a majority of both Houses). The bill would have shortened a station's license term from eight years to four, with the requirement that a license-holder cover important issues fairly, hold local public hearings about its coverage twice a year, and document to the FCC how it was meeting its obligations. The bill was referred to committee, but progressed no further.

In the same Congress, Representative Maurice Hinchey (D-NY) introduced legislation "to restore the Fairness Doctrine". H.R. 3302, also known as the "Media Ownership Reform Act of 2005" or MORA, had 16 co-sponsors in Congress.

In June 2007, Senator Richard Durbin (D-Ill.) said, "It's time to reinstitute the Fairness Doctrine", an opinion shared by his Democratic colleague, Senator John Kerry (D-Mass.). However, according to Marin Cogan of The New Republic in late 2008:

Senator Durbin's press secretary says that Durbin has "no plans, no language, no nothing. He was asked in a hallway last year, he gave his personal view"—that the American people were served well under the doctrine—"and it's all been blown out of proportion."

On June 24, 2008, U.S. Representative Nancy Pelosi (D-Calif.), the Speaker of the House at the time, told reporters that her fellow Democratic representatives did not want to forbid reintroduction of the fairness doctrine, adding "the interest in my caucus is the reverse." When asked by John Gizzi of Human Events, "Do you personally support revival of the 'Fairness Doctrine?'", the Speaker replied "Yes".

On December 15, 2008, U.S. Representative Anna Eshoo (D-Calif.) told The Daily Post in Palo Alto, California that she thought it should also apply to cable and satellite broadcasters, stating:

I'll work on bringing it back. I still believe in it. It should and will affect everyone.

On February 11, 2009, Senator Tom Harkin (D-Iowa) told radio host Bill Press, "we gotta get the Fairness Doctrine back in law again." Later in response to Press's assertion that "they are just shutting down progressive talk from one city after another", Senator Harkin responded, "Exactly, and that's why we need the fair—that's why we need the Fairness Doctrine back."

Former President Bill Clinton has also shown support for the fairness doctrine. During a February 13, 2009, appearance on the Mario Solis Marich radio show, Clinton said:

Well, you either ought to have the Fairness Doctrine or we ought to have more balance on the other side, because essentially there's always been a lot of big money to support the right wing talk shows.

Clinton cited the "blatant drumbeat" against the stimulus program from conservative talk radio, suggesting that it does not reflect economic reality.

On September 19, 2019, Representative Tulsi Gabbard (D-HI) introduced H.R. 4401 Restore the Fairness Doctrine Act of 2019 in the House of Representatives, 116th Congress. Rep. Gabbard was the only sponsor. H.R. 4401 was immediately referred to the House Committee on Energy and Commerce on the same day. It was then referred to the Subcommittee on Communications and Technology on September 20, 2019.

H.R. 4401 would mandate equal media discussion of key political and social topics, requiring television and radio broadcasters to give airtime to opposing sides of issues of civic interest. The summary reads: "Restore the Fairness Doctrine Act of 2019. This bill requires a broadcast radio or television licensee to provide reasonable opportunity for discussion of conflicting views on matters of public importance. The Restore the Fairness Doctrine Act would once again mandate television and radio broadcasters present both sides when discussing political or social issues, reinstituting the rule in place from 1949 to 1987 ... . Supporters argue that the doctrine allowed for a more robust public debate and affected positive political change as a result, rather than allowing only the loudest voices or deepest pockets to win."

Opposition

The fairness doctrine has been strongly opposed by prominent conservatives and libertarians who view it as an attack on First Amendment rights and property rights. Editorials in The Wall Street Journal and The Washington Times in 2005 and 2008 said that Democratic attempts to bring back the fairness doctrine have been made largely in response to conservative talk radio.

In 1987, Edward O. Fritts, president of the National Association of Broadcasters, in applauding President Reagan's veto of a bill intended to turn the doctrine into law, said that the doctrine is an infringement on free speech and intrudes on broadcasters' journalistic judgment.

In 2007, Senator Norm Coleman (R-MN) proposed an amendment to a defense appropriations bill that forbade the FCC from "using any funds to adopt a fairness rule." It was blocked, in part on grounds that "the amendment belonged in the Commerce Committee's jurisdiction."

In the same year, the Broadcaster Freedom Act of 2007 was proposed in the Senate by Senators Coleman with 35 co-sponsors (S.1748) and John Thune (R-SD) with 8 co-sponsors (S.1742) and in the House by Republican Representative Mike Pence (R-IN) with 208 co-sponsors (H.R. 2905). It provided:

The Commission shall not have the authority to prescribe any rule, regulation, policy, doctrine, standard, or other requirement that has the purpose or effect of reinstating or repromulgating (in whole or in part) the requirement that broadcasters present opposing viewpoints on controversial issues of public importance, commonly referred to as the 'Fairness Doctrine', as repealed in General Fairness Doctrine Obligations of Broadcast Licensees, 50 Fed. Reg. 35418 (1985).

Neither of these measures came to the floor of either house.

On August 12, 2008, FCC Commissioner Robert M. McDowell stated that the reinstitution of the fairness doctrine could be intertwined with the debate over network neutrality (a proposal to classify network operators as common carriers required to admit all Internet services, applications and devices on equal terms), presenting a potential danger that net neutrality and fairness doctrine advocates could try to expand content controls to the Internet. It could also include "government dictating content policy". The conservative Media Research Center's Culture & Media Institute argued that the three main points supporting the fairness doctrine — media scarcity, liberal viewpoints being censored at a corporate level, and public interest — are all myths.

In June 2008, Barack Obama's press secretary wrote that Obama (then a Democratic U.S. senator from Illinois and candidate for president) did not support it, stating:

Obama does not support reimposing the Fairness Doctrine on broadcasters ... [and] considers this debate to be a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible. That is why Sen. Obama supports media-ownership caps, network neutrality, public broadcasting, as well as increasing minority ownership of broadcasting and print outlets.

On February 16, 2009, Mark Fowler said:

I believe as President Reagan did, that the electronic press—and you're included in that—the press that uses air and electrons, should be and must be as free from government control as the press that uses paper and ink, Period.

In February 2009, a White House spokesperson said that President Obama continued to oppose the revival of the doctrine.

In the 111th Congress (January 2009 to January 2011), the Broadcaster Freedom Act of 2009 (S.34, S.62, H.R.226) was introduced to block reinstatement of the doctrine. On February 26, 2009, by a vote of 87–11, the Senate added that act as an amendment to the District of Columbia House Voting Rights Act of 2009 (S.160), a bill which later passed the Senate 61–37 but not the House of Representatives. The Associated Press reported that the vote on the fairness doctrine rider was "in part a response to conservative radio talk show hosts who feared that Democrats would try to revive the policy to ensure liberal opinions got equal time." The AP report went on to say that President Obama had no intention of reimposing the doctrine, but Republicans (led by Sen. Jim DeMint, R-SC) wanted more in the way of a guarantee that the doctrine would not be reimposed.

Suggested alternatives

Not to be confused with Unfairness doctrine.

Media reform organizations such as Free Press feel that a return to the fairness doctrine is not as important as setting stronger station ownership caps and stronger "public interest" standards enforcement (with funding from fines given to public broadcasting).

Public opinion

In an August 13, 2008, telephone poll released by Rasmussen Reports, 47% of 1,000 likely voters supported a government requirement that broadcasters offer equal amounts of liberal and conservative commentary, while 39% opposed such a requirement. In the same poll, 57% opposed and 31% favored requiring Internet websites and bloggers that offer political commentary to present opposing points of view. By a margin of 71–20% the respondents agreed that it is "possible for just about any political view to be heard in today's media" (including the Internet, newspapers, cable TV and satellite radio), but only half the sample said they had followed recent news stories about the fairness doctrine closely. The margin of error was 3%, with a 95% confidence interval.

Formal revocation

In June 2011, the chairman and a subcommittee chairman of the House Energy and Commerce Committee, both Republicans, said that the FCC, in response to their requests, had set a target date of August 2011 for removing the fairness doctrine and other "outdated" regulations from the FCC's rulebook.

On August 22, 2011, the FCC voted to remove the rule that implemented the fairness doctrine, along with more than 80 other rules and regulations, from the Federal Register following an executive order by President Obama directing a "government-wide review of regulations already on the books" to eliminate unnecessary regulations.

Natural justice

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Natural_justice

A tondo of an allegory of justice (1508) by Raphael in the Stanza della Segnatura (Room of the Apostolic Signatura) of the Apostolic Palace, Vatican City

In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly".

The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias, or apparent bias. Actual bias is very difficult to prove in practice whereas imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias. Cases from different jurisdictions currently apply two tests for apparent bias: the "reasonable suspicion of bias" test and the "real likelihood of bias" test. One view that has been taken is that the differences between these two tests are largely semantic and that they operate similarly.

The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe, the right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights, which is said to complement the common law rather than replace it.

Background

The courtroom of the Supreme Court of Canada in Ottawa, Ontario. In 1999, the Court ruled in Baker v Canada (Minister of Citizenship and Immigration) that the requirements of natural justice vary according to the context of the matter arising.

Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. It is similar to the American concepts of fair procedure and procedural due process, the latter having roots that to some degree parallel the origins of natural justice.

Although natural justice has an impressive ancestry and is said to express the close relationship between the common law and moral principles, the use of the term today is not to be confused with the "natural law" of the Canonists, the mediaeval philosophers' visions of an "ideal pattern of society" or the "natural rights" philosophy of the 18th century. Whilst the term natural justice is often retained as a general concept, in jurisdictions such as Australia, and the United Kingdom, it has largely been replaced and extended by the more general "duty to act fairly". Natural justice is identified with the two constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or "no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem, or "hear the other side").

The requirements of natural justice or a duty to act fairly depend on the context. In Baker v Canada (Minister of Citizenship and Immigration) (1999), the Supreme Court of Canada set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the person challenging it, the person's legitimate expectations, and the choice of procedure made by the decision-maker.

Earlier, in Knight v Indian Head School Division No 19 (1990), the Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out acts of a more administrative and specific nature do. Preliminary decisions will generally not trigger the duty to act fairly, but decisions of a more final nature may have such an effect.

Whether a duty to act fairly applies depends on the relationship between the public authority and the individual. No duty exists where the relationship is one of master and servant, or where the individual holds office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the individual cannot be removed from office except for cause. Finally, a right to procedural fairness only exists when an authority's decision is significant and has an important impact on the individual.

Rule against bias

In general

People are barred from deciding any case in which bias exists or bias may fairly be suspected. This principle embodies the basic concept of impartiality, and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially. A public authority has a duty to act judicially whenever it makes decisions that affect people's rights or interests, and not only when it applies some judicial-type procedure in arriving at decisions.

The basis on which impartiality operates is the need to maintain public confidence in the legal system. The erosion of public confidence undermines the nobility of the legal system and leads to ensuing chaos. The essence of the need for impartiality was observed by Lord Denning, the Master of the Rolls, in Metropolitan Properties Co (FGC) Ltd v Lannon (1968): "Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'"

Public confidence as the basis for the rule against bias is also embodied in the often-quoted words of Lord Hewart, the Lord Chief Justice of England and Wales, that "[i]t is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly be seen to be done".

Forms of bias

Actual and imputed bias

A portrait of the Lord Chancellor, Lord Cottenham (Charles Pepys, 1st Earl of Cottenham, 1781–1851), by Charles Robert Leslie. In Dimes v Grand Junction Canal (1852), his Lordship was disqualified from hearing a case as he had a pecuniary interest in the outcome.

Bias may be actual, imputed or apparent. Actual bias is established where it is actually established that a decision-maker was prejudiced in favour of or against a party. However, in practice, the making of such an allegation is rare as it is very hard to prove.

One form of imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary or proprietary interest in the outcome of the decision. Once this fact has been established, the bias is irrebuttable and disqualification is automatic—the decision-maker will be barred from adjudicating the matter without the need for any investigation into the likelihood or suspicion of bias. A classic case is Dimes v Grand Junction Canal (1852), which involved an action between Dimes, a local landowner, and the proprietors of the Grand Junction Canal, in which the Lord Chancellor, Lord Cottenham, had affirmed decrees made to the proprietors. However, it was discovered by Dimes that Lord Cottenham, in fact, owned several pounds' worth of shares in the Grand Junction Canal. This eventually led to the judge being disqualified from deciding the case. There was no inquiry as to whether a reasonable person would consider Lord Cottenham to be biased, or as to the circumstances which led Lord Cottenham to hear the case.

In certain limited situations, bias can also be imputed when the decision-maker's interest in the decision is not pecuniary but personal. This was established in the unprecedented case of R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No.2) (1999). In an appeal to the House of Lords, the Crown Prosecution Service sought to overturn a quashing order made by the Divisional Court regarding extradition warrants made against the ex-Chilean dictator, Senator Augusto Pinochet. Amnesty International (AI) was given leave to intervene in the proceedings. However, one of the judges of the case, Lord Hoffmann, was a director and chairperson of Amnesty International Charity Ltd. (AICL), a company under the control of AI. He was eventually disqualified from the case and the outcome of the proceedings set aside.

The House of Lords held that the close connection between AICL and AI presented Lord Hoffmann with an interest in the outcome of the litigation. Even though it was non-pecuniary, the Law Lords took the view that the interest was sufficient to warrant Lord Hoffmann's automatic disqualification from hearing the case. In Locabail (UK) Ltd v Bayfield Properties Ltd (1999), the Court of Appeal warned against any further extension of the automatic disqualification rule, "unless plainly required to give effect to the important underlying principles upon which the rule is based".

Apparent bias

Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its outcome, but through his or her conduct or behaviour gives rise to a suspicion that he or she is not impartial. An issue that has arisen is the degree of suspicion which would provide the grounds on which a decision should be set aside for apparent bias. Currently, cases from various jurisdictions apply two different tests: "real likelihood of bias" and "reasonable suspicion of bias".

The real likelihood test centres on whether the facts, as assessed by the court, give rise to a real likelihood of bias. In R v Gough (1993), the House of Lords chose to state the test in terms of a "real danger of bias", and emphasized that the test was concerned with the possibility, not probability, of bias. Lord Goff of Chievely also stated that "the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man". However, the test in Gough has been disapproved of in some Commonwealth jurisdictions. One criticism is that the emphasis on the court's view of the facts gives insufficient emphasis to the perception of the public. These criticisms were addressed by the House of Lords in Porter v Magill (2001). The Court adjusted the Gough test by stating it to be "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". This case therefore established the current test in the UK to be one of a "real possibility of bias".

On the other hand, the reasonable suspicion test asks whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible. Although not currently adopted in the UK, this test has been endorsed by the Singapore courts.

It has been suggested that the differences between the two tests are largely semantic and that the two tests operate similarly. In Locabail, the judges stated that in a large proportion of the cases, application of the two tests would lead to the same outcome. It was also held that "[p]rovided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, and without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well-informed members of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done".

In the Singapore High Court decision Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005), Judicial Commissioner Andrew Phang observed that the real likelihood test is in reality similar to that of reasonable suspicion. First, likelihood is in fact "possibility", as opposed to the higher standard of proof centring on "probability". Secondly, he suggested that real in real likelihood cannot be taken to mean "actual", as this test relates to apparent and not actual bias. He also observed that both the court's and the public's perspectives are "integral parts of a holistic process" with no need to draw a sharp distinction between them.

In contrast, in Re Shankar Alan s/o Anant Kulkarni (2006), Judicial Commissioner Sundaresh Menon thought that there was a real difference between the reasonable suspicion and real likelihood tests. In his opinion, suspicion suggests a belief that something that may not be provable could still be possible. Reasonable suggests that the belief cannot be fanciful. Here the issue is whether it is reasonable for the one to harbour the suspicions in the circumstances even though the suspicious behaviour could be innocent. On the other hand, likelihood points towards something being likely, and real suggests that this must be substantial rather than imagined. Here, then, the inquiry is directed more towards the actor than the observer. The issue is the degree to which a particular event is not likely or possible. Menon J.C. also disagreed with both Lord Goff in Gough and Phang J.C. in Tang Kin Hwa in that he thought the shift of the inquiry from how the matter might appear to a reasonable man to whether the judge thinks there is a sufficient possibility of bias was "a very significant point of departure".

The real likelihood test is met as long as the court is satisfied that there is a sufficient degree of possibility of bias. Although this a lower standard than satisfaction on a balance of probabilities, this is actually directed at mitigating the sheer difficulty of proving actual bias, especially given its insidious and often subconscious nature. The reasonable suspicion test, however, is met if the court is satisfied that a reasonable member of the public could harbour a reasonable suspicion of bias even though the court itself thought there was no real danger of this on the facts. The difference is that the driver behind this test is the strong public interest in ensuring public confidence in the administration of justice. As of September 2011, the Court of Appeal of Singapore had not yet expressed a view as to whether the position taken in Tang Kin Hwa or Shankar Alan is preferable.

Exceptions to the rule against bias

Necessity

There are cases in which a disqualified adjudicator cannot be replaced, as no one else is authorized to act. It has been observed that "disqualification of an adjudicator will not be permitted to destroy the only tribunal with power to act". In such cases, natural justice has to give way to necessity in order to maintain the integrity of judicial and administrative systems.

This issue regarding necessity was raised in Dimes. The Lord Chancellor had to sign an order for enrolment in order to allow the appeal to proceed from the Vice-Chancellor to the House of Lords. It was held that his shareholding in the canal company which barred him from sitting in the appeal did not affect his power to enroll, as no one but him had the authority to do so. It was mentioned this was allowed "for this [was] a case of necessity, and where that occurs the objection of interest cannot prevail".

Waiver

The court normally requests that an objection be taken as soon as the prejudiced party has knowledge of the bias. If an objection is not raised and proceedings are allowed to continue without disapproval, it will be held that the party has waived its right to do so.

Effect of a finding of bias

In Dimes, the judges advised the House of Lords that Lord Cottenham's pecuniary interest made his judgment not void, but voidable. This advice is not wrong in the context of a judicial act under review, where the judgment will be held valid unless reversed on appeal.

However, in the cases of administrative acts or decisions under judicial review, the court can only intervene on the grounds of ultra vires, hence making the judgment void. Lord Esher said in Allison v General Council of Medical Education and Registration (1894) that the participation of a disqualified person "certainly rendered the decision wholly void".

Right to a fair hearing

In general

A hearing of the International Court of Justice in 2006 presided over by its president, Her Excellency Dame Rosalyn Higgins. A fundamental aspect of natural justice is that before a decision is made, all parties should be heard on the matter.

It has been suggested that the rule requiring a fair hearing is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. However, the rules are often treated separately. It is fundamental to fair procedure that both sides should be heard. The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to answer them, and the opportunity to present their own cases.

Besides promoting an individual's liberties, the right to a fair hearing has also been used by courts as a base on which to build up fair administrative procedures. It is now well established that it is not the character of the public authority that matters but the character of the power exercised. However, in the United Kingdom prior to Ridge v Baldwin (1963), the scope of the right to a fair hearing was severely restricted by case law following Cooper v Wandsworth Board of Works (1863). In R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. (1923), Lord Atkin observed that the right only applied where decision-makers had "the duty to act judicially". In natural justice cases this dictum was generally understood to mean that a duty to act judicially was not to be inferred merely from the impact of a decision on the rights of subjects; such a duty would arise only if there was a "superadded" express obligation to follow a judicial-type procedure in arriving at the decision.

In Ridge v Baldwin, Lord Reid reviewed the authorities extensively and attacked the problem at its root by demonstrating how the term judicial had been misinterpreted as requiring some additional characteristic over and above the characteristic that the power affected some person's rights. In his view, the mere fact that the power affects rights or interests is what makes it "judicial" and so subject to the procedures required by natural justice. This removal of the earlier misconception as to the meaning of judicial is thought to have given the judiciary the flexibility it needed to intervene in cases of judicial review.

The mere fact that a decision-maker is conferred wide discretion by law is not reason enough for a weakening of the requirements of natural justice. In the United Kingdom context, this is demonstrated by Ahmed v H.M. Treasury (No. 1) (2010). The Treasury had exercised powers to freeze the appellants' financial assets and economic resources on the ground that it reasonably suspected the appellants were or might be persons who had committed, attempted to commit, participated in or facilitated the commission of terrorism, pursuant to the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006 made under the United Nations Act 1946. The Supreme Court of the United Kingdom held that since the Al-Qaida Order made no provision for basic procedural fairness, it effectively deprived people designated under the order the fundamental right of access to a judicial remedy and hence was ultra vires the power conferred by the United Nations Act 1946 for the making of the Order.

Article 6 of the European Convention

The right to a fair hearing is also referred to in Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, which states:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

Article 6 does not, however, replace the common law duty to ensure a fair hearing. It has been suggested that Article 6 alone is not enough to protect procedural due process, and only with the development of a more sophisticated common law will the protection of procedural due process extend further into the administrative machine. Nonetheless, Article 6 supplements the common law. For example, the common law does not impose a general duty to give reasons for a decision, but under Article 6(1) a decision-maker must give a reasoned judgment so as to enable an affected individual to decide whether to appeal.

Aspects of a fair hearing

Prior notice of hearing

Natural justice allows a person to claim the right to adequate notification of the date, time, place of the hearing as well as detailed notification of the case to be met. This information allows the person adequate time to effectively prepare his or her own case and to answer the case against him or her. In Cooper v Wandsworth, Chief Justice William Erle went so far as to state that the lack of notice and hearing afforded to Cooper could be said to be a form of abuse, as he had been treated as if he did not matter. As Lord Mustill famously held in R v Secretary of State for the Home Department Ex p Doody (1993): "Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

It has been suggested that the requirement of prior notice serves three important purposes:

• The interest in good outcomes – giving prior notice increases the value of the proceedings as it is only when the interested person knows the issues and the relevant information that he or she can make a useful contribution.
• The duty of respect – the affected person has the right to know what is at stake, and it is not enough to simply inform him or her that there will be a hearing.
• The rule of law – notice of issues and disclosure of information opens up the operations of the public authority to public scrutiny.

The British courts have held it is not enough for an affected person to merely be informed of a hearing. He or she must also be told what is at stake; in other words, the gist of the case.

Opportunity to be heard

Every person has the right to have a hearing and be allowed to present his or her own case. Should a person not attend the hearing, even with adequate notice given, the adjudicator has the discretion to decide if the hearing should proceed. In Ridge v Baldwin, a chief constable succeeded in having his dismissal from service declared void as he had not been given the opportunity to make a defence. In another case, Chief Constable of the North Wales Police v Evans (1982), a chief constable required a police probationer to resign on account of allegations about his private life which he was given no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful. Likewise in Surinder Singh Kanda v Federation of Malaya (1962), a public servant facing disciplinary proceedings was not supplied with a copy of a prejudicial report by a board of inquiry which the adjudicating officer had access to before the hearing. The Privy Council held that the proceedings had failed to provide him a reasonable opportunity of being heard.

However, this requirement does not necessarily mean the decision-maker has to meet the complainant face to face—"Natural justice does not generally demand orality". It has been suggested that an oral hearing will almost be as good as useless if the affected person has no prior knowledge of the case. In Lloyd v McMahon (1987), an oral hearing did not make a difference to the facts on which the case was based. Giving judgment in the Court of Appeal of England and Wales, Lord Justice Harry Woolf held that an oral hearing may not always be the "very pith of the administration of natural justice". It has also been suggested that an oral hearing is only required if issues concerning deprivations of legal rights or legally protected interests arise.

Conduct of the hearing

When deciding how the hearing should be conducted, the adjudicator has to ask whether the person charged has a proper opportunity to consider, challenge or contradict any evidence, and whether the person is also fully aware of the nature of the allegations against him or her so as to have a proper opportunity to present his or her own case. In Secretary of State for the Home Department v AF (2009), Lord Phillips of Worth Matravers said:

The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed.

However, when a hearing requires the balancing of multiple polycentric issues such as natural justice and the protection of confidential information for national security reasons, both the concerns of public security and the right to a fair trial must be adequately met. It was held by the House of Lords in AF, applying the decision of the Grand Chamber of the European Court of Human Rights A v United Kingdom (2009), that a person accused of terrorism against whom a control order has been issued must be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate. If this requirement is satisfied, a fair hearing can be conducted without detailed disclosure of confidential information that might compromise national security. On the facts of the case, a special advocate was not permitted further contact with an applicant or his ordinary legal representatives except with permission of the Special Immigration Appeals Commission (SIAC) after viewing confidential (or "closed") materials.

The House of Lords recognized that although a special advocate's usefulness is stymied somewhat from having no further instructions after viewing such materials, if the SIAC decides to issue a control order predominantly on the basis of non-confidential (or "open") materials, an applicant cannot be regarded as having been denied an opportunity to challenge the reasonableness of the government's beliefs and suspicions about him. If the evidence against the applicant is largely closed but allegations contained in open material are sufficiently specific, an applicant should be able to provide his legal representatives and special advocate with information to refute it (such as an alibi, if the open material alleges he was at a certain place during a certain period) without having to know the detail or sources of the closed evidence. However, if the evidence revealed to the person consists only of general assertions and the case against him is based solely or to a substantive extent on undisclosed adverse evidence, the fair hearing rule under natural justice will not be satisfied.

In such cases, there are strong policy considerations supporting the principle that a trial procedure can never be considered fair if a person is kept in ignorance of the case against him or her. First, since the grounds for a reasonable suspicion that a person is involved in terrorist activity can span from incontrovertible evidence to an innocent misinterpretation of facts which can be explained away by the person, in many cases it is impossible for courts to be sure that the disclosure of the evidence will make no difference to the applicant. Secondly, resentment will be felt by the person and his family and friends if sanctions are imposed without any proper explanation of the grounds and when, due to the non-disclosure of information, the person is put in a position where he is unable to properly defend himself. As Lord Phillips put it, "if the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust".

The right to be heard in answer to charges before an unbiased tribunal is illustrated in the Singapore case Tan Boon Chee David v. Medical Council of Singapore (1980). During a disciplinary hearing, council members were either not conscientious about their attendance or did not attend the whole course of proceedings. This meant they did not hear all the oral evidence and submissions. The High Court held that this had substantially prejudiced the appellant and constituted a fundamental breach of natural justice. On the other hand, mere absence from a hearing does not necessarily lead to undue prejudice. It was held in Re Teo Choo Hong (1995) that the function of a lay member of a lawyers' disciplinary committee was to observe and not cast a vote or make a judgment. Thus, the appellant had not suffered undue prejudice.

On the basis of reciprocity, if one side is allowed to cross-examine his legal opponent at a hearing, the other party must also be given the same opportunity. In addition, when a tribunal decides a case on a basis not raised or contemplated by the parties, or decides it without regarding the submissions and arguments made by the parties on the issues, this will amount to a breach of natural justice. However, a genuine bona fide mistake by an adjudicator in omitting to state reasons for not considering a submission is not enough to be a breach of natural justice. This may occur when the submissions were accidentally omitted, or were so unconvincing that it was not necessary to explicitly state the adjudicator's findings.

Right to legal representation

There is no inherent common law right to legal representation before a domestic tribunal. A tribunal has the discretion to admit either a legally qualified or unqualified counsel to assist the person appearing before it, based on the facts of the case. When assessing whether a party should be offered legal assistance, the adjudicator should first ask whether the right to be heard applies, and, secondly, whether counsel's assistance is needed for an effective hearing given the subject matter, bearing in mind the consequences of such a denial.

In R v Secretary of State for Home Department, ex parte Tarrant (1983), Webster J. set out six factors to be considered when deciding whether to allow representation by counsel, namely:

• the seriousness of the charge and the potential penalty;
• whether any points of law are likely to arise.;
• whether the prisoner is capable of presenting his own case;
• whether there are any procedural difficulties faced by prisoners in conducting their own defence;
• whether there is reasonable speed in making the adjudication; and
• whether there is a need for fairness between prisoners or between prisoners and prison officers.

It has also been suggested that where a tribunal hearing concerns the individual's reputation or right to livelihood, there is a greater need for allowing legal representation as this vindicates the idea of equality before the law.

When one refuses legal representation, one cannot expect to receive a higher "standard" of natural justice. This was enunciated in Singapore in Ho Paul v. Singapore Medical Council (2008). Dr. Ho, who had been charged with professional misconduct, chose to appear before the council in person and declined to cross-examine the council's key witness. Subsequently, he argued that he should have been warned of the legal implications of not being legally represented. The High Court rejected this argument and held he had suffered no prejudice. Dr. Ho had been given a fair opportunity of presenting his own case and, most importantly, had not been deprived of his right to cross-examine the witnesses.

It is also not a court's obligation to provide assistance when a party presents his or her case without legal representation. In Rajeevan Edakalavan v. Public Prosecutor (1998), the accused had appeared in person before a magistrate and had entered a plea of guilt. He later petitioned the High Court for criminal revision, arguing that as the magistrate had not informed him of the defences available to him, his plea had been equivocal. The Court held:

The onus [of informing the accused of his defence options or what could be more advantageous to his case] does not shift to the judge (or the Prosecution, for that matter) simply because the accused is unrepresented. That will be placing too onerous a burden on the judge. Furthermore, the judge will be performing two completely incompatible and irreconcilable roles—one as the adjudicator, the other as the de facto defence counsel.

In Singapore, the right to legal representation is contingent on the nature of the inquiry. However, since Article 12 of the Constitution of Singapore guarantees equal protection under the law, it has been suggested that greater weightage should be accorded to this procedural right when balancing it against the competing demand of efficiency.

The decision and reasons for it

Currently, the principles of natural justice in the United Kingdom and certain other jurisdictions do not include a general rule that reasons should be given for decisions. In R v Northumberland Compensation Appeal Tribunal, ex parte Shaw (1951), Denning L.J. stated: "I think the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision." It has been stated that "no single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions".

Historically, uncontrolled public decisions have led to poor outcomes and disrespect for the decision-makers. Such decisions also lacked the regularity and transparency that distinguish them from the mere say-so of public authorities. On such grounds, there are obvious benefits for the disclosure of reasons for decisions. First, procedural participation by people affected by a decision promotes the rule of law by making it more difficult for the public authority to act arbitrarily.

Requiring the giving of reasons helps ensure that decisions are carefully thought through, which in turn aids in the control of administrative discretion. Secondly, accountability makes it necessary for the public authority to face up to the people affected by a decision. When a public authority acts on all the relevant considerations, this increases the probability of better decision outcomes and, as such, is beneficial to public interests. Another important benefit is that respect for decision-makers is fostered, which increases their integrity in the public's eyes.

Trial in absentia

From Wikipedia, the free encyclopedia

Trial in absentia is a criminal proceeding in a court of law in which the person who is subject to it is not physically present at those proceedings. In absentia is Latin for "in (the) absence". Its meaning varies by jurisdiction and legal system.

In common law legal systems, the phrase is more than a spatial description. In these systems, it suggests a recognition of a violation of a defendant's right to be present in court proceedings in a criminal trial. Conviction in a trial in which a defendant is not present to answer the charges is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem (hear the other party).

In some civil law legal systems, such as that of Italy, absentia is a recognized and accepted defensive strategy. Such trials may require the presence of the defendant's lawyer, depending on the country.

Europe

Signatories to the European Convention on Human Rights

Member states of the Council of Europe that are party to the European Convention on Human Rights are bound to adhere to Article 6 of the convention, which protects the right to a fair trial.

Trials in absentia are banned in some member states of the EU and permitted in others, posing significant problems for the fluidity of mutual recognition of these judicial judgments. The executing member state possesses some degree of discretion and is not obliged to execute a European Arrest Warrant if the country that is making the request has already tried that person in absentia.

Conditions under which trials in absentia must be recognised include: if the person can be said to have been aware of the trial; if a counsellor took their place at the trial; if they do not request an appeal in due time; and if they are to be offered an appeal. 

The framework decision on the European Arrest Warrant provides for the legal guarantees relevant to trials in absentia. While the framework decision explicitly refers to Article 6 of the European Convention on Human Rights, its purpose is not to harmonise national laws on trials in absentia but to provide terms for the non-recognition of a European Arrest Warrant and other cooperative tools. The framework decision provides detailed conditions and requirements on which a trial in absentia can be considered compatible with Article 6, the right to a fair trial.

According to Pieter Cleppe of the think-tank Open Europe, in parts of Europe, in absentia trials essentially give defendants the ability to appeal twice—asking for a retrial at which they would be present and then potentially appealing the second verdict.

There are some guarantees in the legal system that make sure that it's fair, that the rights of the defense are not being violated, while still making sure that justice is being done. In absentia judgments are common ... you can criticize that, but it's quite common.

— Pieter Cleppe, Open Europe

The Council of Europe has made commentary on judgments that are made in absentia. The Committee of Ministers, in Resolution (75) 11, of 21 May 1975, stated that an individual must first be effectively served with a summons prior to being tried. In this sense, the ministers are emphasizing that it is not the presence of the accused at the hearing that is of importance, rather the focus should be on whether or not the individual was informed of the trial in time.

In a 1985 judgement in the case Colozza v Italy, the European Court of Human Rights stressed that a person charged with a criminal offence is entitled to take part in the hearings. This entitlement is based on the right to a fair trial and the right to a defence, both of which are required by the convention (articles 6(1) and 6(3)). Furthermore, the court stressed that a person convicted in absentia shall be entitled to a fresh trial once he becomes aware of the proceedings:

When domestic law permits a trial to be held notwithstanding the absence of a person "charged with a criminal offence" who is in Mr. Colozza’s position, that person should, once he becomes aware of the proceedings, be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge.

— European Court of Human Rights, Colozza vs. Italy

Belgium

The Human Rights Committee (HRC) examined Monguya Mbenge v. Zaire (1990) in which the applicant was sentenced to death while exiled in Belgium and was only able to learn of the case against him through the media. Due to these circumstances, the committee found that a number of the applicant's procedural rights had been violated, especially in consideration of the fact that the Zairean authorities had hardly attempted to contact the applicant despite possible knowledge of the applicant's address. This highly impeded the applicant's capacity to prepare any form of defense. Failed evidence to support the case that a court had tried to inform the accused of proceedings against him/her provides the committee with the opinion that the right to be tried in one's presence was violated.

Czech Republic

Under Article 8(2) of the Charter of Fundamental Rights and Basic Freedoms of the Czech Republic, which has the same legal standing as the Czech Constitution, no one may be prosecuted or deprived of their liberty except on grounds and in a manner specified by law.

In general, the Czech Criminal Procedural Code requires the presence of the defendant in any criminal proceedings. The code recognizes the following exemptions from this rule, when criminal proceedings may be conducted without the presence of the person charged:

• Where a defendant has died (involving the continuation or reopening of proceedings in order to clear a deceased defendant's name).
• Where a defendant is unknown:
  • This may arise before charges against a person are brought, normally in respect of pre-trial proceedings. For example, if police conclude that a crime has been committed and that action needs to be taken to identify the perpetrator, such as the interrogation of a witness or an identity parade, such an action is taken in the presence of a judge because the rights of the (still unidentified) criminal suspect cannot otherwise be adequately protected during the evidence gathering. Normally, a defendant enjoys the right to be present or represented by an attorney during the interrogation or identity parade. But where the defendant is not yet identified, in order to secure full legality and impartiality, a judge is present. This ensures the admissibility of the resulting evidence will not be successfully challenged during the trial. Typically, this situation might involve a dying witness, not expected to be available later for cross-examination at a trial by or on behalf of the defendant.
  • When confiscating property involved in criminal case from an unknown owner, the property confiscated will remain the property of the unknown owner pending a trial and a court decision to transfer the property confiscated to the state. An example could arise where the property to be confiscated might endanger people, property or society, or might be used for commission of a felony. Typically, this concerns prohibited weapons or ammunition, explosives, narcotics, poisons, etc., seized by the police without, at the time of the seizure, knowing the owner's identity.
• Where a defendant is known:
  • Where an accused person is evading proceedings by being either abroad or in hiding, the proceedings may be conducted in absentia. The proceedings are then officially started by the formal delivery of charges to the defendant's attorney. If the defendant does not have an attorney, the court will appoint one. An attorney must in these circumstances be appointed throughout the entire proceedings, and will have all the defendant's rights. All documents intended for the defendant will be delivered to the attorney and the court must take "appropriate measures" to announce the trial publicly. Where the absent defendant subsequently appears during the trial, the proceedings shall continue in the normal way. The defendant may request that any evidence that had been presented in his absence be presented again; where this is not possible, he will be shown records of it and may comment on it. Where the case has ended with an enforceable judgment, the convicted party may request a fresh trial within eight days of the delivery of the judgment to him. The fresh trial may not lead to an outcome that would be less favorable to the defendant than the outcome of the previous in absentia trial.

Apart from the aforementioned cases of in absentia proceedings in the narrow sense, the defendant may also be absent during the trial under following circumstances:

• When the defendant fails to appear for the trial: only if
  • the indictment was duly delivered and
  • the defendant was duly summoned for the trial (i.e. is not in hiding) and
  • the defendant has already been formally questioned during pre-trial proceedings (whether or not they elected to remain silent) and
  • the defendant has been alerted about their right to study the case file and to put forward motions for investigation and
  • the court determines that, despite the defendant's absence from the trial, the case can be reliably decided and the purposes of the trial achieved.
• When the defendant requests that the trial takes place in their absence: if the defendant is being held on remand, a simple failure to appear is not permitted: the defendant must formally request that the proceedings to take place in their absence.
• When the defendant is disrupting the proceedings: trial in absentia is possible only on basis of a formal ruling of, and subject to previous warning by, the court, and only for the necessary period of time. Immediately after allowing the defendant back into the courtroom, the presiding judge must convey the essential content of the proceedings taken in the defendant's absence, so as allow them to comment on it.

Italy

Italy is one of several countries in Europe that allow trials in absentia, and they are a regular occurrence.

In Maleki v Italy (1997), the United Nations Human Rights Committee held that the Italian policy on trials in absentia was a breach of the right to fair trial under Article 14 of the International Covenant on Civil and Political Rights. Italy argued that where a defendant in absentia is represented by court-appointed counsel and where he or she has an opportunity to be re-tried, the right to a fair trial will not be violated. The committee disagreed, describing Italy's position as:

clearly insufficient to lift the burden placed on the State party if it is to justify trying an accused in absentia. It was incumbent on the court that tried the case to verify that [Maleki] had been informed of the pending case before proceeding to hold the trial in absentia. Failing evidence that the court did so, the [HRC] is of the opinion that [Maleki's] right to be tried in his presence was violated.

In 2009, a former CIA station chief and two other Americans were tried and convicted in absentia by a Milan appeals court for the abduction of Egyptian terror suspect Osama Hassan Mustafa Nasr. The decision meant that 26 Americans tried in absentia for the abduction were found guilty.

The trial of American Amanda Knox for the 2007 murder of British student Meredith Kercher highlighted the issue of Italy's willingness to try defendants in absentia. In 2013 Italy's highest court, the Court of Cassation, decided to annul Knox's appeal (alongside the co-accused, Italian Raffaele Sollecito), thus overturning their previous acquittals, declaring the acquittal as "full of deficiencies, contradictions and illogical conclusions".

As Amanda Knox remained at her home in the United States, her appeal was heard in absentia, in Florence, Italy. On 30 January 2014 her guilty verdict was re-instated for the murder of Kercher and her sentence set at 28 years and six months imprisonment.

In the case of Goddi v. Italy, the European Court of Human Rights held that the failure of Italy's judiciary to inform the officially appointed lawyer of the applicant in regards to the correct date of the trial hearing deprived the applicant of an effective defence, and therefore Article 6 (3) (c) had been violated.

Certain case law supports the notion that in some circumstances representation by counsel at the trial will not be enough to make an in absentia conviction conclusive enough for the establishment of probable cause. In Gallina v Fraser, the appellant Vincenzo Gallina was convicted in absentia according to established Italian procedure for two robberies. The verdict in Gallina has been since interpreted to suggest that the presence of legal counsel alone is, in certain cases, insufficient to give an in absentia conviction that establishes probable cause.

United States

For more than 100 years, courts in the United States have held that the United States Constitution protects a criminal defendant's right to appear in person at their trial, as a matter of due process, under the Fifth, Sixth, and Fourteenth Amendments.

In 1884, the Supreme Court of the United States held that

the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution.

— Hopt v. Utah 110 US 574, 28 L Ed 262, 4 S Ct 202 (1884).

A similar holding was announced by the Arizona Court of Appeals in 2004 (based on Arizona Rules of Criminal Procedure):

A voluntary waiver of the right to be present requires true freedom of choice. A trial court may infer that a defendant's absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, the right to be present, and had received a warning that the proceeding would take place in their absence if they failed to appear. The courts indulge every reasonable presumption against the waiver of fundamental constitutional rights.

— State v. Whitley, 85 P.3d 116 (2004) (Depublished Opinion).

Although United States Congress codified this right by approving Rule 43 of the Federal Rules of Criminal Procedure in 1946 and amended the Rule in 1973, the right is not absolute.

Rule 43 provides that a defendant shall be present

• at the arraignment,
• at the time of the plea,
• at every stage of the trial including the impaneling of the jury and the return of the verdict and
• at the imposition of sentence.

However, the following exceptions are included in the Rule:

• the defendant waives his or her right to be present if he or she voluntarily leaves the trial after it has commenced,
• if he or she persists in disruptive conduct after being warned that such conduct will cause him or her to be removed from the courtroom,
• a corporation need not be present, but may be represented by counsel,
• in prosecutions for misdemeanors, the court may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence with his or her written consent, and
• the defendant need not be present at a conference or argument upon a question of law or at a reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure.

Indeed, several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through disruptive behavior, or through his or her voluntary absence after trial has begun.

In 1993, the Supreme Court revisited Rule 43 in the case of Crosby v. United States. The Court unanimously held, in an opinion written by Justice Harry Blackmun, that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.

This case requires us to decide whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning. We hold that it does not. ...The Rule declares explicitly: "The defendant shall be present...at every stage of the trial...except as otherwise provided by this rule" (emphasis added). The list of situations in which the trial may proceed without the defendant is marked as exclusive not by the "expression of one" circumstance, but rather by the express use of a limiting phrase. In that respect the language and structure of the Rule could not be more clear.

However, in Crosby, the Rehnquist Court reiterated an 80-year-old precedent that

Where the offense is not capital and the accused is not in custody, ...if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present." Diaz v. United States, 223 U.S. at 455 [1912] (emphasis added).

Examples

See also: Category:People convicted in absentia

Examples of people convicted in absentia are:

• Charles I of England was removed from his trial due to his disruptive behavior, and sentenced to death by beheading without being in the room.
• Cesare Battisti, thriller author and former member of the Italian terrorist group Armed Proletarians for Communism, sentenced to life. (Arrested on March 18, 2007, in Brazil, and then released on 9 June 2011.)
• Ian Bailey, a British man convicted in absentia by a French court of the murder of a French woman in Ireland.
• Adem Jashari, leader of the Kosovo Liberation Army, was convicted in July 1997 in absentia by a Yugoslav court after several unsuccessful attempts to capture or kill him.
• Krim Belkacem, Algerian Berber resistance fighter and politician. (Assassinated on October 18, 1970, in West Germany.)
• Heinrich Boere, a Dutch or German convicted by a Dutch court in 1949 of murders on the part of the World War II German occupation authorities in the Netherlands. German courts refused to extradite Boere to the Netherlands due to his possibly having German citizenship.
• Martin Bormann, Nazi official and Hitler's private secretary, convicted of war crimes and crimes against humanity and sentenced to death by hanging at the Nuremberg war crimes trials. (Disappeared on May 2, 1945, his remains were uncovered in late 1972 in West Berlin, and conclusively identified as those of Bormann in 1998.)
• Dési Bouterse, Suriname's former military leader, sentenced to 16 years in prison and fined $2.18 million in the Netherlands for cocaine trafficking.
• Ahmed Chalabi, former Iraqi oil minister, convicted in Jordan for bank fraud.
• Bettino Craxi, Italian former prime minister, sentenced in absentia to 27 years in jail in Italy, who previously fled to Hammamet in Tunisia in 1994, and remained a fugitive there, protected by Ben Ali's regime.
• Léon Degrelle, Belgian Nazi collaborator sentenced to death by firing squad while he lived in Spain.
• Ryszard Kukliński, a Polish colonel, Cold War spy and communist whistleblower, sentenced in absentia to death as a traitor in 1984 by a communist court in the Polish People's Republic. He was finally acquitted in 1997. It was said his activity was in a State of Necessity.
• Ira Einhorn, murderer and anti-war activist, who challenged his conviction in Pennsylvania. (Escaped to Europe, but was extradited from France back to the US on July 20, 2001.)
• John Factor, a British-born American gangster and con man, charged with securities fraud in England and tried and sentenced to 24 years in prison in absentia after fleeing back to the United States.
• Charles de Gaulle, sentenced first to four years in prison and later to death in 1940 for treason against the Vichy regime.
• Oleg Gordievsky, sentenced to death by the Soviet Union for treason after fleeing to the United Kingdom in 1985.
• Boļeslavs Maikovskis, Latvian Nazi collaborator sentenced to death by a Soviet court in 1965 (while living in the United States).
• Mengistu Haile Mariam, former communist dictator sentenced to death in Ethiopia for genocide in May 2008.
• Jamal Jafaar Mohammed aka Abu Mahdi al-Muhandis, sentenced to death by a Kuwaiti court for the 1983 Kuwait bombings. He served in Iraq's parliament (2006–2007) as a member of Prime Minister Nouri al-Maliki's Islamic Dawa Party and was killed in the 2020 Baghdad International Airport airstrike by a United States drone.
• Abu Musab al-Zarqawi, sentenced to death in Jordan. (Killed on June 7, 2006, in Iraq.)
• Andrew Luster, convicted of rape after fleeing mid-trial.
• Filiberto Ojeda Ríos, convicted in the US after fleeing.
• Zine El Abidine Ben Ali, former president of Tunisia, sentenced to life in prison along with his wife, Leïla Ben Ali.
• Bernardo Provenzano, Sicilian Mafia boss convicted of numerous murders during his 42 years as a fugitive.
• Michael Townley, Chilean DINA agent, has been convicted in 1993 by an Italian court in carrying out the 1975 Rome murder attempt on Bernardo Leighton. (Currently living under the United States Federal Witness Protection Program.)
• Sholam Weiss, sentenced to the longest federal prison term in United States history (835 years) for fraud, money laundering and other crimes, jumped bail mid-trial. (Extradited by Austria on June 20, 2002.)
• Arkady Shevchenko, high ranking SVR official of the USSR, sentenced to death in Moscow in absentia after defecting to the United States.
• Irakli Okruashvili, Defense Minister of Georgia from 2004 to 2006 and a personal friend of Georgian president Mikheil Saakashvili. Okruashvili returned to prominence when he formed an opposition party to the Georgian government and accused it of corruption and plotting assassinations. He was arrested days later on charges of extortion, bribe taking, and abuse of power, and released on $6 million bail pending trial. He flew to Europe, supposedly to seek medical treatment, but tried to find political asylum. He was denied asylum in Germany, but received it in France, which refused an extradition request from Georgia. He was tried in absentia, found guilty, and sentenced to 11 years imprisonment.
• In 2011, Eugene Koffi Adoboli was sentenced to five years in jail in absentia stemming from an embezzlement scandal while he was Prime Minister of Togo.
• Anwar al-Awlaki, radical Islamic cleric assassinated by drone by the United States in Yemen in 2011, was tried in abseentia by the Yemeni government.
• Alexander Poteyev, ex-colonel of the Russian intelligence agency SVR, was sentenced in absentia to 25 years of imprisonment on the charge of high treason by Moscow court in 2011. His whereabouts are unknown; presumably he lives in the United States under protection of the US government.
• Kent Kristensen, Danish businessman was sentenced in Romania in absentia to seven years for not paying an official in a building project. He was arrested in Spain in 2011 when he tried to save his child who was abducted by her mother. He is serving his time at the Giurgiu maximum security prison. In March 2012 it was reported that the Romania denied him his medication.
• Amanda Knox, tried in absentia and convicted in 2013 (later cleared), for the 2007 murder of Meredith Kercher.
• Dmitry Yazov, Soviet Marshal convicted in absentia by Lithuania for deadly military crackdown in 1991 and sentenced to 10 years in jail.
• Julie d'Aubigny, 17th-century French duelist charged with kidnapping, arson and body snatching in absentia.
• Muhammad Zaidan (aka. Abu Abbas), leader of the Palestine Liberation Front, was charged in Italy in absentia to five terms of life imprisonment for his role as mastermind in the 1985 hijacking of the Italian cruise ship MS Achille Lauro, which resulted in the murder of 69-year-old American Jewish passenger Leon Klinghoffer. He was captured by American forces on April 14, 2003, during the Iraq War and died on March 8, 2004, of natural causes, while in American custody.
• Mauricio Funes, a former president of El Salvador (2009–2014), was convicted and sentenced in absentia to 14 years imprisonment in May 2023 for his role in organizing a gang truce between 2012 and 2014. At the time of his sentencing, Funes was living in exile in Nicaragua.
• Khalid Latif, a former Pakistani cricketer, was convicted in absentia to 12 years imprisonment in September 2023 for attempting to provoke the murder of Dutch politician Geert Wilders, incitement, and threats.