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I was involved in a rather formal administrative review. I got the impression that administration was determined to give the facade of fairness while arriving at a predetermined conclusion. One thing a lawyer pointed out was that though the code of conduct guaranteed a fair and unbiased investigation, it didn't outline any particular process.

In a real legal proceeding what determines what is considered fair and unbiased? Are courts bound by particular legislation on how they operate? For example:

  • a defendant must know each and every one of any claims made against them
  • a defendant must have access to legal resources and legal counsel and adequate time to use them and prepare a response
  • the burden of proof usually is on the person making the claim
  • in general all parties know what the other parties have said, a plaintiff can't tell a judge something but not tell the defendant
  • opportunity to call witnesses to give evidence

Where are such things documented? Are these technically laws themselves? Do things like arbitration have their own clearly defined process to maintain fairness? Can an organization get in trouble for trying to make their administrative investigation and decision look as if it holds the power of a court?

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  • 2
    Though I tagged this with Canada, I'd be interested in hearing how it works for other countries as well.
    – hellohello
    Mar 15 at 6:36
  • Also I realize this is speculation, but if administration had already made up their mind who they were going to believe, why waste everyone's time with a huge investigation and lots of paper work? I guess they really wanted to appear fair?
    – hellohello
    Mar 15 at 6:38
  • I don't think I've ever voted to close a question as needing focus before, but this one is a good example. There are several questions embedded in one, and none of them have particularly straightforward answers.
    – bdb484
    Mar 16 at 2:21

2 Answers 2

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The concept you are describing is called procedural fairness, natural justice or due process. It is a common law principle that applies without the need for a specific statute, but it is often explained, qualified or codified in the written law for particular purposes.

For example, in civil litigation the principle that the defendant must know all of the claims made against them is expressed in civil procedure rules, and associated case law, on the subject of pleading. The requirement that a defendant have adequate time to respond to the case against them would usually be covered by other procedural rules which set specific time limits and consequences for non-compliance.

In criminal law, and other areas of law where a party's freedom is at stake, procedural fairness is often addressed in a constitutional provision like the Sixth Amendment (which specifically confers the rights to confront witnesses and the assistance of counsel), or European Convention on Human Rights (addressed in JBentley's answer). As with the civil procedure rules, there is room for disagreement on how the written law should apply in practice, which is addressed in the case law for that jurisdiction and subject matter.

Outside the courtroom, administrative tribunals and other decision-makers may be expected to afford procedural fairness to people affected by their decisions. In some cases, that expectation is legally enforceable. In employee discipline matters, employers will commonly seek to do natural justice (or at least give the appearance of it) to employees, because failing to do so could result in the employee winning an unfair dismissal case. Again, the details are worked out in the case law on unfair dismissal in a particular jurisdiction.

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The right to a fair trial is a human right in countries which are parties to the European Convention of Human Rights. This is provided by Article 6:

  1. 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

  2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

  3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

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