TEES eee

AGAINST BIAS

10.1 The rule: its scope and rationale

The notion of procedural fairness is a wide-ranging one, and encompasses a number of
distinct principles of administrative law. We address, in chs 11 and 12, the various procedural
hurdles which public authorities must clear if they are to satisfy the demands of fairness;
we therefore consider such matters as the characteristics of a ‘fair hearing’, and the extent
to which individuals must be given reasons for the conclusions at which decision-makers
arrive. In this chapter, however, we are concerned with a prior question regarding not the
fairness of the decision-making process (in terms of the details of the procedure which is
adopted), but the nature of the decision-making body itself.
It is not difficult to identify underlying rationales for procedural fairness. It is self-evident
that fairness, in some form, is a highly desirable characteristic in any system of public
administration. Because it promotes full and fair consideration of the issues and evidence,
procedural fairness, as Lord Steyn observed in Raji v. General Medical Council [2003] UKPC
24 [2003] 1 WLR 1052 at [13], plays ‘an instrumental role in promoting just decisions’. It is
normatively significant, too, because to accord fair treatment to individuals is to act in a
manner which respects their dignity and value as members of the community, rather than
characterizing them as the objects of an arbitrary and authoritarian governmental process.
Moreover, it is important for public confidence in, and co-operation with, the administrative
system that it appears to be fair, as well as actually being fair. We consider these underlying
objectives of procedural fairness in greater detail in ch 11.
However, this chapter is concerned specifically with the rule against bias (nemo judex in re
sua), arule oflong standing. Ifa decision-making system is to lay claim to any degree of fairness,
then the provision of unbiased tribunals and decision-makers is a pre-requisite. No amount of
procedural safeguards (such as the right to legal representation or to cross-examine witnesses)
is likely to deliver fairness if the tribunal is, in the first place, biased in the sense of being
inherently predisposed against (or, indeed, for) the individual about whom the decision is being
made. The connection between ‘bias’ and ‘fairness’ is drawn out in the following excerpt.

Galligan, Due Process and Fair Procedures

(Oxford 1996)
... 10 lack impartiality means being willing to decide a matter for reasons which are unrelated to
legitimate reasons. The judge who allows his personal feelings towards a party to intrude on his
deliberations, or the licensing justice who takes into account his own financial interest in the licence
being refused, are both acting out of bias and have surrendered their impartiality. The personal
feelings of the judge and the financial interests of the justice are reasons which should be excluded
 THE RULE AGAINST BIAS e 293

from their decisions. They are improper reasons because they are unrelated to the authoritat
ive
standards by which the cases should be decided. The judge is supposed to decide between the
two parties according to the principles of civil law, while the justice should determine licensing
applications according to the statutory criteria. Where there is discretion so that the judge or
the justice has to settle for himself at least some of the standards to apply, it would be equally
illegitimate to adopt standards based on personal feelings or financial interest. Any choice which
discretion allows does not include the selection of standards based on personal feelings orfinancial
interest.
Once the link is made between loss of impartiality and the process of reasoning which an official
is required to follow, the relationship between bias and fairness can be seen. For the official who
acts for improper reasons fails to apply authoritative standards correctly or to exercise discretion
properly, as a consequence, the person affected is not treated in accordance with those standards
and, therefore, is treated unfairly. This does not undermine the idea that reasons do not come
ready-made or branded as good or bad; reasons, of course, are constructed out ofa social context,
guided, but not closely constricted, by given legal standards. The present argument claims merely
that whatever reasons are good reasons, those displaying bias will never be amongst their number.
We can now see why loss of impartiality is roundly condemned: the unseemliness of prejudice or
personal interest influencing the holder of a public office is evidence ofthe deeper principle rather
than the principle itself. We can also see that, being an attack on the idea that in any legal context
there are authoritative standards to apply, the absence of impartiality is a fundamental flaw which
renders the process illegitimate...

Galligan’s explanation helpfully illuminates the connection between, on the one hand, the
rule against bias and, on the other hand, the relevancy of considerations and propriety
of purpose doctrines which we considered above in ch 8. All of those principles are
constituted on the basis that discretion can be exercised properly only on the strength
of considerations — or ‘standards’ — which are legitimate. Whereas the relevancy of
considerations and propriety of purpose doctrines tend to focus our attention on those
constraints on discretion which are explicit or implicit in the statutory scheme — and whose
identification is therefore largely a matter of context — the rule against bias is concerned
with a more fundamental, and more obvious, set of factors such as personal animosity and
pecuniary interest, the operation of which necessarily calls into question the legitimacy of
the decision-making process.
One of the objectives of the rule against bias, therefore, is to deliver a system of decision-
making which, at quite a fundamental level, is actually fair and legitimate. However, as the
following excerpt demonstrates, the rule’s rationale is in fact somewhat broader — and so,
as a result, is the rule itself.

Rv. Sussex Justices, ex parte McCarthy [1924] 1 KB 256

‘Divisional Court of the King’s Bench Division

Whitworth, the driver of a motorbike which was involved in a collision with McCarthy’s motorbike,
made a claim through his solicitor for damages from McCarthy. In addition, a criminal prosecution
was brought for dangerous driving and McCarthy was convicted bya magistrates’ court. The person
who acted as the clerk to the justices on the day in question — the deputy clerk — was a partner
in the firm of solicitors which was acting on Whitworth’s behalf. He had retired with the justices,
but, according to the justices’ affidavit, he had not referred to the case during his retirement with
them and he had not been consulted whilst the justices were coming to their decision. McCarthy’s
solicitor stated that he (the solicitor) had been unaware of the deputy clerk’s interest in the case
294 e THE RULE AGAINST BIAS

until the justices had retired; however, he brought the matter to their attention when they returned
to court. McCarthy later sought a quashing order in respect of his conviction.

Lord Hewart CJ
It is clear that the deputy clerk was a member of the firm of solicitors engaged in the conduct of
proceedings for damages against the applicant in respect of the same collision as that which gave
rise to the charge that the justices were considering. It is said, and, no doubt, truly, that when that
gentleman retired in the usual way with the justices, taking with him the notes of the evidence in
case the justices might desire to consult him, the justices came to a conclusion without consulting
him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a
long line of cases shows that it is not merely of some importance but is of fundamental importance
that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
The question therefore is not whether in this case the deputy clerk made any observation or offered
any criticism which he might not properly have made or offered; the question is whether he was so
related to the case inits civil aspect as to be unfit to act as clerk to the justices in the criminal matter.
The answer to that question depends not upon what actually was done but upon what might appear
to be done. Nothing is to be done which creates even a suspicion that there has been an improper
interference with the course of justice. Speaking for myself, | accept the statements contained in
the justices’ affidavit, but they show very clearly that the deputy clerk was connected with the case
in a capacity which made it right that he should scrupulously abstain from referring to the matter
in any way, although he retired with the justices; in other words, his one position was such that he
could not, if he had been required to do so, discharge the duties which his other position involved.
His twofold position was a manifest contradiction. In those circumstances | am satisfied that this
conviction must be quashed, unless it can be shown that the applicant or his solicitor was aware
of the point that might be taken, refrained from taking it, and took his chance of an acquittal on the
facts, andthen, onaconviction being recorded, decided to take the point. Onthe facts |am satisfied
that there has been no waiver of the irregularity...

Lush and SankeyJJ agreed. The conviction was quashed.

Lord Hewart’s directive that ‘justice should not only be done, but should manifestly and
undoubtedly be seen to be done’ is part of the bedrock of English administrative law.
It reveals a view of the rule against bias — and of the policy objectives which underpin
and shape that rule — which emphasizes perception as much as reality. The purpose of
the rule, on this view, is not merely to promote fairness in decision-making, but to ensure
that practices which merely create an impression of bias are rendered unlawful. The reason
for constructing the rule against bias thus is perhaps most readily apparent in relation to
decision-making in a judicial context. It is clear, for instance, that public confidence in the
criminal justice system depends fundamentally on the perception that criminal trials are
conducted in a fair, impartial, and unbiased manner. Perception is, however, also important
in other, administrative contexts. Public trust in government — and, hence, the willingness
of individuals to co-operate with public authorities in their endeavour to secure effective
administration for the public good — requires a conviction on the part of the public that
decision-making functions are discharged in an unbiased manner, and that applications for
licences, planning permission, and so on, are determined on merit, not on grounds of status
or favour.
The law in this area falls into two principal parts. We begin with cases in which the
disqualification of the decision-maker is automatic, because of the directness and nature of
his interest in the matter in relation to which he is asked to exercise discretion or judgment.
We then turn to cases in which — in the absence of an interest of such a nature as to render
 THE RULE AGAINST BIAS e 295

disqualification automatic — the court is concerned to examine the circumstances more

thoroughly, in order to determine whether there is a risk of or appearance of bias sufficient
to disqualify the decision-maker.

10.2. Automatic disqualification

10.2.1 Financial interests

The general principle

It is a well-established proposition that, if a decision-maker has a direct financial interest
in the outcome of the decision-making process, he will be automatically disqualified from
taking part — and, if he takes part in spite of his interest, his decision may be set aside. In
fact Jones [1999] PL 391 at 399 suggests that the rule
might be better thought of as a rule of automatic disclosure, rather than disqualification. The mere
fact that a judge feels that he has an interest which needs to be disclosed to the parties to the
litigation does not mean that he must automatically disqualify himself. It is open for him to do so,
but the normal expectation would be that the decision is one for the parties (and fellow judges, if
appropriate) to make. In the absence of adequate disclosure, the disqualification is retrospective,
operating on appeal from the original decision.

If full disclosure is made of financial interests (or indeed any other interest that would
otherwise disqualify the decision-maker on grounds of bias), it is therefore open to the
relevant party to waive his right to object, provided that, as the Court of Appeal put it
in Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] QB 451 at 475, the waiver is ‘clear
and unequivocal, and made with full knowledge of all the facts relevant to the decision
whether to waive or not’. (It should also be noted that the rule against bias yields in
the face of both statutory authorization and necessity — that is, where no alternative
decision-maker exists — although the ECtHR held in Kingsley v. United Kingdom (2001)
35 EHRR 10 (on which see further Forsyth [2001] CL] 449 and Leigh [2002] PL 407) that
the common law doctrine of necessity cannot excuse breaches of Article 6 ECHR, which
we discuss below at 10.5.) We begin, however, with a classic example of the operation of
the rule in circumstances in which the judge failed to disclose his financial interest —
and in which, therefore, disqualification followed automatically (albeit, as Jones observes,
retrospectively).

Dimes v. The Proprietors of the Grand Junction Canal (1852) 3 HLC 759
House of Lords

The respondent company had been involved in proceedings before Lord Cottenham LC and had
been granted relief by him. Lord Cottenham, however, held shares in the company (partly on
his own account, and partly as a trustee for others), and the validity of his action was in issue in
this case.
296 e THE RULE AGAINST BIAS

Lord Campbell
No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the
interests thathe hadinthis concern; but, my Lords, itis of the last importance thatthe maxim thatno
man is to be a judge in his own cause should be held sacred. And this is not to be confined to a cause
in which he is a party, but applies to a cause in which he has an interest. Since | have had the honour
to be Chief Justice of the Court of Queen’s Bench, we have again and again set aside proceedings in
inferior triounals because an individual, who had an interest in a cause, took a part in the decision.
And it will have a most salutary influence on these tribunals when it is known that this high Court
of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his
decree was on that account a decree not according to law, and was set aside. This will be a lesson
to all inferior tribunals to take care not only that in their decrees they are not influenced by their
personal interest, but to avoid the appearance of labouring under such an influence.

Lord St Leonards LC and Lord Brougham agreed that Lord Cottenham had been disqualified from
acting as a judge in the proceedings in question on account of his interest.

Lord Campbell’s speech begs important questions concerning the rationale and scope of this
limb of the rule against bias; it is necessary to consider each in turn.

Can the automatic disqualification principle be justified?

As we observed above, the importance of securing public confidence in judicial and
administrative decision-making is such that the rule against bias prohibits not only practices
that are actually unfair, but also those which may give the impression of unfairness. It is
unclear, however, where precisely the aspect of the bias rule presently under consideration
fits into this framework. Although Lord Campbell’s opening remark — that ‘[n]o one can
suppose that Lord Cottenham could be, in the remotest degree, influenced by the interests
that he had in this concern’ — is questionable (see Olowofoyeku’s comments in the next
excerpt), the fact that he adopted that premise begs an important question: if he was
satisfied that the Lord Chancellor was not actually influenced by his financial interest, and
that no-one could form the impression that he was so affected, what purpose did the latter’s
disqualification serve?

QUESTION
¢ Which (if any) part of the rationale underlying the rule against bias is furthered by
the decision in Dimes, and the principle for which it now stands?

Lord Campbell’s remarks in Dimes notwithstanding, the thinking underlying the principle
that a direct financial interest automatically disqualifies the decision-maker is that such
interests are so powerful an influence that they inevitably create a risk of bias (actual or
apprehended). However, this equation between financial interest and actual or apprehended
bias can be balanced only if some rather crude, and quite possibly inaccurate, assumptions
are made. The central difficulty — that the automatic disqualification rule is capable of
operating on the basis of premises which are inappropriate to the specific facts of the case —
follows from the very essence of the rule, which holds that a direct financial interest should
disqualify the decision-maker irrespective of the context, and without the need for any
detailed evaluation of the facts (beyond, that is, establishing the existence of the interest). As
 THE RULE AGAINST BIAS e 297

Olowofoyeku observes in the following passage, such an approach risks elevating expediency
above a range of competing — and arguably more compelling — policy considerations. (The
tests for bias, referred to in the following extract, based variously upon ‘danger’, ‘likelihood’,
‘suspicion’, and ‘apprehension’ are considered below at 10.3; for the time being, the key factor
which distinguishes those tests from the automatic disqualification principle is that they
require evaluation of the circumstances, and provide for disqualification only if there is a
sufficient degree of likelihood that they would give rise to a perception of bias.)

Olowofoyeku, ‘The Nemo Judex Rule: The Case Against Automatic

Disqualification’ [2000] PL 456
... There is nothing magical about automatic disqualification (other than expediency) which makes
it better at protecting the integrity of the administration of justice than any other principle. The
warning of Slade J. in R v. Camborne Justices, ex parte Pearce [[1955] 1 QB 41 at 51] against the
erroneous impression that “it is more important that justice should appear to be done than that
it should in fact be done” is salutary. Indiscriminate application of automatic disqualification,
or, treating automatic disqualification as an end in itself, may well imply that such an erroneous
impression is correct, and may serve to undermine the integrity of the administration ofjustice.
For, if the purpose of the nemo judex rule is to preserve public confidence in the administration of
justice, it may be that such confidence would be compromised rather than enhanced if the public
go away feeling that justice was not done because of a “mere technicality”, rather than because
there was a real risk of injustice having occurred. The famous statement of Lord Denning MR. in
Metropolitan Properties Ltd v. Lannon [[1969] 1 QB577 at 599] was to the effect that justice is rooted
in confidence, and that confidence is destroyed when right-thinking people go away thinking that
the judge was biased.
There is a corollary to this, and it is found in these words of Sackville, Finn and Kenny JJ. of the
Australian Federal Court in [Ebner v. Official Trustee in Bankruptcy [1999] FCA 110 at [37]:
It would seem on the authorities (and [counsel for the applicant] said it was settled law) that
a failure to disclose, say, a shareholding in a corporate party to litigation will disqualify a
judge, even though the shares are worth very little and the prospect of the litigation making
a difference to the price of the shares is utterly remote. If this is so, the consequence is that a
judgment delivered after many days of hearing is liable to be set aside, notwithstanding that
no reasonable person could suggest that there is any suspicion ofjudicial bias. Why is it to be
assumed that the confidence of fair-minded people in the administration of justice would be
shaken by the existence of a direct pecuniary interest of no tangible value, but not by the waste
of resources and the delays brought about by setting aside a judgment on the ground that the
judge is disqualified for having such an interest([?]

Thus, it may be that to ask whether there is any good reason in principle for limiting automatic
disqualification to cases of financial interest is to ask the wrong question. [This question was
prompted by the decision of the House of Lords in R v. Bow Street Stipendiary Magistrate, ex
parte Pinochet Ugarte (No 2) [2000] AC 119 which, as we will see below, extended the scope of
the automatic disqualification principle in English law.] It may be that a better question is whether
there is any need [at all] for a rule of automatic disqualification. In Ebner, the Full Court of the
Australian Federal Court said [at [36]] that it might be “thought somewhat anomalous that a special
rule of automatic disqualification has survived for cases of direct pecuniary interest, especially in
Australia where the more stringent ‘reasonable suspicion’ test [on which see below at 10.3.1] has
been adopted”. The Court referred to the statement of Lord Hewart C.J. in R v. Sussex Justices, ex
p. McCarthy that justice should not only be done, but should be seen to be done as the principle
298 e THE RULE AGAINST BIAS

underlying the Australian “reasonable suspicion” test, and queried why, if this was the case, it
was necessary to have a special rule which disqualifies a judge even where an ordinary reasonable
member of the public could not suspect bias on the partof the judge.
...In Dimes itself...[iJt is true that Lord Campbell said that no one could suppose that Lord
Cottenham couldbe, inthe remotest degree, influenced by the interest he hadin the canal company.
But it has been commented [by Sackville, Finn, and Kenny JJ in Ebner, op cit] that, “while lawyers
might be prepared to accept that Lord Cottenham could not have been influenced, it isa little
difficult to see why Lord Campbell was so confident that no-one could reasonably reach a different
view”. Lord Cottenham’s interest of “several thousand pounds” in 1852 would probably translate
to “several hundreds of thousands of pounds” today. It would be fairly open to reasonable people
to suspect or apprehend that a judge might be influenced by such a substantial shareholding, a
fortiori ifthe liability of the shareholders is not limited. A view that there would be areal likelinood or
danger that a judge with such a stake ina litigant might be prejudiced in favour ofthe litigant could
not be described in any way as unreasonable or fanciful, notwithstanding the judge’s eminence.
Therefore Dimes could just as easily have been decided on the basis of [a] real likelinood or danger,
or reasonable apprehension, ofbias...
...[M]y conclusion is that automatic disqualification is draconian, disproportionate and
unnecessary. There is nothing that can be achieved by automatic disqualification that cannot be
achieved by an application of the real danger/reasonable apprehension test. On the other hand,
application of the automatic disqualification rule may well lead to the disqualification of judges in
situations wherein a closer inspection of the circumstances would reveal that there was never any
realistic possibility of bias. While it may be expedient for judges to apply a mechanical rule, such
mechanistic adjudication smacks of abdication. There may well be cases wherein it is obvious that
the judgment should not be allowed to stand. Examples of such may be the... Dimes [case]. Such
cases can fit within the apprehended bias rule, forif, inthe circumstances, reasonable people would
not apprehend bias, then it cannot be said that “it is obvious” that the judgment should not be
allowed to stand...

The scope of automatic financial disqualification

The central and pervasive problem concerning the automatic disqualification principle
concerns its undiscriminating nature. It is its rigidity, and its scant regard for the broader
context within which the issues arise, that are likely to cause difficulties. It is important to
appreciate, however, that the principle is not quite as crude as it may first appear. In particular,
there are certain financial interests which are recognized as being so remote or indirect as
to fall outside the scope of automatic disqualification. The rule is sometimes stated in rather
expansive terms; for instance, in R v. Rand (1866) LR 1 QB 230 at 232, Blackburn Jsaid that
‘any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a
person from acting as a judge in the matter’. A similarly exacting formulation was advanced
in R v. Camborne Justices, ex parte Pearce [1955] 1 QB 41 at 47 by Slade J. However, a more
subtle approach was later endorsed by a Court of Appeal consisting of Lord Bingham CJ,
Lord Woolf MR, and Sir Richard Scott V-C in Locabail (UK) Ltd v. Bayfield Properties Ltd
[2000] QB 451 at [10]:

While the older cases speak of disqualification if the judge has an interest in the outcome of the
proceedings “however small,” there has in more recent authorities been acceptance of a de
minimis exception: B.T.R. Industries South Africa (Pty.) Ltd. v. Metal and Allied Workers’ Union,
1992 (3) S.A. 673, 694; Reg. v. Inner West London Coroner, Ex parte Dallaglio [1994] 4 All E.R.
 THE RULE AGAINST BIAS e 299

139, 162; Auckland Casino Ltd. v. Casino Control! Authority [1995] 1 N.Z.L.R. 142, 148. This seems
to us a proper exception provided the potential effect of any decision on the judge’s personal
interest is so small as to be incapable of affecting his decision one way or the other; but it is
important, bearing in mind the rationale of the rule, that any doubt should be resolved in favour
of disqualification. In any case where the judge’s interest is said to derive from the interest of
a spouse, partner or other family member the link must be so close and direct as to render the
interest of that other person, for all practical purposes, indistinguishable from an interest of the
judge himself.

The Court of Appeal then went on to apply this more subtle view of the automatic
disqualification principle to the facts of the case.

Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] QB 451

Court of Appeal

Locabail (UK) Ltd took legal proceedings, in the latter part of 1998, against two companies which
were both controlled by Mr Emmanuel, in order to enforce charges securing the payment of
advances made to him. The securities consisted of property owned by the companies: Hans House,
Knightsbridge, in the case of Waldorf Investment Corporation, and Hawks Hill in Surrey, in the case
of Bayfield Properties Ltd. Mrs Emmanuel, however, who was (or became) a defendant in both
actions, claimed, on the basis of representations made to her by her husband, and her reliance
thereupon, to be the equitable owner of Hawks Hill and to have a beneficial interest in Hans House.
On 27 October 1998, the judge discovered in one of the bundles a press cutting stating that the City
law firm Herbert Smith was acting for Sudoexport against Mr Emmanuel and against a company
(Howard Holdings Inc, a company controlled by Mr Emmanuel which had money claims against
him). Previously unaware of Herbert Smith’s involvement, the judge —a deputy High Court judge —
immediately drew the parties’ attention to the fact that he was a senior partner in the firm. Mrs
Emmanuel raised no objection at the time. However, in March 1999, after the judge had rejected
Mrs Emmanuel’s contentions as to the beneficial ownership of the two properties, she made an
application asking him to disqualify himself from further involvement in the case and to direct a
rehearing before a different judge. The judge concluded that no conflict of interest arose, and
refused Mrs Emmanuel’s application; she therefore sought permission to appeal. Three points arose:
whether the judge was automatically disqualified; if not, whether an appearance of bias arose onthe
facts (on which see below at 10.3), and whether Mrs Emmanuel, by inaction, had waived any right
to object.

Lord Bingham of Cornhill CJ, Lord Woolf MR, and Sir Richard Scott V-C
[42] [Miss Williamson, counsel for Mrs Emmanuel] submits that there was a conflict of interest
between Mrs. Emmanuel and Herbert Smith’s clients, Sudoexport and/or the liquidator of
Howard Holdings Inc. The conflict of interest is constructed as follows: Sudoexport has money
claims against Mr. Emmanuel. So does Howard Holdings Inc. in liquidation. Locabail is one of Mr.
Emmanuel’s creditors. If Mrs. Emmanuel’s claims to equitable interests in the two properties were
to succeed, there would be a reduction in the value to Locabail of its security and an increase in
the unsecured debt owing by Mr. Emmanuel to Locabail. This would be detrimental to the ability
of Sudoexport and the liquidator of Howard Holdings Inc. to obtain payment of the sums owing to
them by Mr. Emmanuel. The deputy judge explained the point in his judgment: “if [Mrs Emmanuel]
failed, [Locabail] would be removed as a creditor in competition with Sudoexport”. There is,
therefore, Miss Williamson submitted, a Conflict of interest between Mrs. Emmanuel and Herbert
Smith’s clients...
300 e THE RULE AGAINST BIAS

[47] There was an additional issue. When, on Day 8of the hearing, the deputy judge made the
disclosure recorded in the transcript, Mrs. Emmanuel could then have made an objection to the
deputy judge continuing to hear the case. Or she could have asked for time to consider the position.
She did neither, but allowed the hearing to continue to a conclusion. She could, after the Hawks Hill
hearing had come to an end, have objected to the deputy judge hearing the Hans House appeal.
She did not do so, and, without objection, he heard the appeal. Thereafter, during the three and
half month delay before the reserved judgment was delivered, no bias objection was made. An
inference that might be drawn is that Mrs Emmanuel wanted to await the result of the two hearings,
and only made her bias objection when she knew she had lost. So the question arises whether she
must be taken to have waived any bias objection.
[48] As to this, [Miss] Willlamson’s response was to submit, first, that the disclosure made by the
deputy judge was not complete disclosure, second, thata waiver could only be effective when made
by a person with full knowledge of the relevant facts and, third, that in view of Mrs. Emmanuel’s
incomplete knowledge of the circumstances of Herbert Smith’s involvementin the litigation against
her husband, she was never put to her election as to what she should do and waiver could not be
raised against her.
[49] The “waiver” issue is one which, logically, falls to be considered after the bias issues have
been considered...
[50] This is not a case in which actual bias on the part of the deputy judge is alleged. Is ita casein
which the judge has a sufficient pecuniary or proprietary interest inthe outcome of the trial so as to
attract the automatic disqualification principle expressed in the Dimes case, 3 [Link]. 759? Ifit is,
then the deputy judge is automatically disqualified. Ifitis not, thenitis a case to which the principles
expressed in Reg. v. Gough [1993] A.C. 646 must be applied. It was suggested by Miss Williamson
that this was a case to which the Dimes case applied. Her argument went like this. The deputy judge
is a partner in Herbert Smith. Herbert Smith was acting for Sudoexport and Howard Holdings Inc.
in litigation against Mr. Emmanuel. Success in achieving the maximum possible recovery from
Mr. Emmanuel would enhance the goodwill of Herbert Smith and thereby tend to increase its profits.
The deputy judge would share in the firm’s profits. Miss Williamson suggested, also, the possibility
that Herbert Smith might be acting under a conditional fee agreement with fees dependent on the
level of recoveries extracted from Mr. Emmanuel. But in order to attract the Dimes consequence
of automatic disqualification something more must, in our judgment, be present than the tenuous
connection between the firm’s success in an individual case on the one hand and the firm’s goodwill
and the level of profits on the other. Andif the pecuniary or proprietary interest has to depend upon
the existence of a conditional fee agreement of the unusual character suggested byMiss Williamson,
there must be at least some evidence to suggest the existence of such an agreement. Here there is
none. Miss Williamson’s suggestion is wholly speculative and hypothetical. In our judgment this is
not a case to which the Dimes principle of automatic disqualification applies. The Gough test must
be applied and the court must ask itself whether ‘in the circumstances of the case. ..it appears that
there was a real likelihood, in the sense of a real possibility, of bias’ on the part of the deputy judge:
see [1993] A.C. 646, 668, per Lord Goff... [The Court of Appeal then considered whether the facts
gave rise to an appearance — or, using the test which was then applicable and which is discussed
below, a “a real danger” — of bias, and concluded that they did not. The question of waiver was
then considered.]
[68] In our judgment, Mrs. Emmanuel and her lawyers had to decide on 28 October what they
wanted to do. They could have asked for time to consider the position. They could have asked the
deputy judge to recuse himself and order the proceedings to be started again before another
judge. They could have told the judge they had no objection to him continuing with the hearing.
In the event they did nothing. In doing nothing they were treating the disclosure as being of no
importance. The hearing then continued fora further seven days, judgment was reserved, the Hans
House appeal was heard, judgment was reserved, and judgment in both cases was given three
 THE RULE AGAINST BIAS e 301

and half months later. During all this period Mrs. Emmanuel and her lawyers did nothing
about the
disclosure that had been made on 28 October. They only sprang into action and began complaining
about bias after learning from the deputy judge’s judgment that Mrs. Emmanuel had lost.
[69] Mrs. Emmanuel’s application for permission to appeal and draft notice of appeal raise alarge
number of objections to the 9 March judgment expressed over several pages. We are concerned
with none of these objections. They may or may not be well founded. The deputy judge may or may
not have been unfair to Mrs. Emmanuel in the way in which he dealt with her evidence and that of her
witnesses. These are matters which must be raised with another court on another occasion. We are
concerned onlywith the complaint based upon an appearance ofbias allegedly produced by Herbert
Smith’s involvement in the litigation against Mr. Emmanuel. This involvement was, in its essentials,
disclosed on 28 October. It was not open to Mrs. Emmanuel to wait and see how her claims in the
Locabail litigation turned out before pursuing her complaint of bias. Miss Williamson protests that
on 28 October not enough was disclosed to put Mrs. Emmanuel to her election. We disagree. The
essentials of the conflict of interest case that is now relied on were to be found in the press cutting.
Mrs. Emmanuel wanted to have the best of both worlds. The law will not allow her to doso...

Permission to appeal refused.

The Court adopted a similar approach to the automatic disqualification rule in R v. Bristol
Betting and Gaming Licensing Committee, ex parte O’Callaghan, which was heard with the
Locabail case.

Rv. Bristol Betting and Gaming Licensing Committee, ex parte

O’Callaghan [2000] QB 451
Court of Appeal

The claimant was in dispute with Coral Racing Ltd over the validity of a bet which he placed and
which, if valid, would have yielded a pay-out of almost £260,000. The claimant wished to attend a
hearing of the Bristol Betting and Gaming Licensing Committee in May 1997 at which the renewal
of Coral’s permit was to be considered; he was, however, certified as medically unfit to attend and
sought an adjournment. The Committee refused the adjournment, and made an award of £5,000
costs against Mr O'Callaghan. Since he was out of time forjudicial review, the claimant sought an
extension before Dyson J. By the time of the hearing, Coral’s permit had been extended to three
years; Dyson J concluded, therefore, that the only issue on which judicial review could bite was
the lawfulness of the costs order and that, in light of the modest sum involved, an extension of
time would not be appropriate. It then became apparent, through an article in The Sunday Times,
that Dyson J was a director of Dyson Properties Ltd and of a related company, Gown and Mantle
Ltd, which were family investment property companies whose tenants included Coral Racing Ltd.
Mr O'Callaghan argued that, if DysonJ had disclosed this connection, he would have objected to his
involvement in the case.

Lord Bingham of Cornhill CJ, Lord Woolf MR, and Sir Richard Scott V-C
[105] In accordance with the normal procedure adopted by the Court of Appeal when allegations
are made against a judge, Dyson J. was informed of what was being relied on by Mr. O’Callaghan. By
letter to this court of 28 June 1999 he confirmed that he had been a non-executive director of Dyson
[Link]. since the late 1980s; thatitis a family property investment company, which was formed
by his parents many years ago; that it holds commercial properties in the North of England; that, apart
from himself, the current directors are his mother and brother; that all shares are held by members
of the family (which include the judge); that he is not involved in the management of the company;
302 e THE RULE AGAINST BIAS

that his role is limited to giving occasional advice to his brother; and that Gown and Mantle Ltd. is a
wholly-owned subsidiary of Dyson Properties Ltd. (This last statement may not be entirely accurate,
because it appears that the judge may also hold shares in this company). The judge adds that until
he read the article in The Sunday Times he “was not aware that Corals was one of the company’s
tenants” and that the rent payable by Corals for the only shop of which it is a tenant of the company
represents slightly more than four per cent. of the total rent currently receivable by the company.
[106] The Lord Chancellor gives guidance to judges on their appointment. At the time
of Dyson J.’s appointment, the guidance provided that no judge should hold a commercial
directorship. But the guide added:
“There is, however, normally no objection to a judge holding shares in commercial companies,
or taking part in the management of a family estate or farming his own land. Equally, there are
some forms of non-commercial directorships which a judge may hold without objection.”
[107] The current guide of October 1998 is in similar terms.
[108] It cannot be said that this is a case where the strict principle of automatic disqualification
laid down in Dimes v. Proprietors of Grand Junction Canal, 3 [Link]. 759 and Reg. v. Bow Street
Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 2) [2000] 1 A.C. 119 applies. Miss
Jackson [for Mr O'Callaghan] submitted that if the judicial review proceedings had continued they
couldhave hada significant effect upon Corals andin consequence adversely affected that company’s
ability to meet its obligations to the Dyson family companies. We do not agree. The judicial review
proceedings by thetimethey came before DysonJ. were only concernedwiththe issue of £5,000 costs.
It would be absurd to suggest that recovery or non-recovery of this sum could affect Corals’ ability to
pay the rent of its shop in Leeds. It was suggested that the court in the judicial review proceedings
could grant Mr. O’Callaghan a declaration which would be helpful in his dispute with Corals. However,
we cannot see any basis for such a declaration. Once Corals’ betting permits had been renewed, the
judicial review proceedings could only have relevance with regard to costs. It cannot be said that the
judge had anything more than a nominal and indirect interest because of his directorship and shares
inthe company. Such an interest does not establish a bar to the judge sitting...

Permission to appeal denied.

It is clear from cases such as Locabail and O’Callaghan that the automatic disqualification
rule, as presently conceived, is subtle enough to ensure that not every financial interest —
irrespective of how remote it may be — falls within its scope. Constructing the rule in this
way goes some distance towards meeting Olowofoyeku’s criticism that it is “draconian’
and ‘disproportionate’. However, characterizing the rule thus is not without difficulty: the
more subtly it is constructed, the more it comes to resemble a substantive evaluation of the
circumstances in which the decision is made. It is clearly possible to manipulate the criterion
of directness in order to ensure that only financial interests that are likely to raise a reasonable
apprehension of bias fall within the rule’s prohibitive scope, but this merely begs the question
whether the automatic disqualification rule is necessary, given that it would appear that the
underlying policy is simply to address situations which give rise to a reasonable apprehension
of bias — a matter which is already covered by the apprehended bias rule which we discuss at
10.3 below. This is not to suggest that the presence of a financial interest is insignificant. It is,
as a matter of fact, something which isvery likely to give rise to an appearance of bias. The key
point, however, is that disqualification in the face of financial interests is not an end in itself,
but simply a manifestation of the wider underlying principle that judicial and administrative
decision-making must not give rise to the perception of bias. It is arguable, therefore, that a
single rule, based on disqualification in the face of apprehended bias, is perfectly capable of
dealing with the whole range of situations which are of concern in this context — and that a
single rule would better capture and reflect the policy of the law in this area.
 THE RULE AGAINST BIAS e 303

QUESTIONS
¢ Doyou agree? ©
* Should the special category of automatic disqualification remain?

10.2.2. Beyond financial interests: Pinochet

The scope of the automatic disqualification principle was clarified — in a rather surprising
way — by the House of Lords in the course of the infamous Pinochet litigation. The events
leading to the arrest of Senator Augusto Pinochet are usefully detailed in Woodhouse (ed),
The Pinochet Case: A Legal and Constitutional Analysis (Oxford 2000), ch 1,and the remainder
of that book helpfully considers the various issues arising from Pinochet. We are concerned
here, however, specifically with the impact of the decision on the rule against bias.

R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet

Ugarte (No 2) [2000] 1 AC 119
House of Lords

Senator Pinochet was arrested in the United Kingdom under warrants issued under s 8(1) of the
Extradition Act 1989, following the issue of warrants by a Spanish court in respect of crimes against
humanity which the senator was alleged to have committed, mainly in Chile. The claimant challenged
the validity of the warrants, arguing that, as a former head of state, he was immune from arrest and
extradition proceedings in respect of his conduct while in office. The Divisional Court accepted this
argument, although the quashing of one of the warrants was stayed pending an appeal to the House
of Lords by the prosecuting authorities. The appeal was successful, by a majority of three to two. In
the hearing before the House of Lords, Amnesty International (‘Al’) —a charitable organization which
campaigns for respect for human rights —was granted permission to intervene, and was represented
by counsel at the hearing. After the House of Lords had announced its decision, it came to light that
Lord Hoffmann— one of the judges in the majority— was a director of Amnesty International Charity
Ltd (‘AICL), a charity which was intimately related to, and undertook work on behalf of, Alinthe United
Kingdom. Inlight ofthis the claimant tookthe extraordinary step of petitioning the House of Lordstoset
aside its previous decision. The application was heard by a panel of five current and retired Law Lords
sitting as an Appeal Committee. Lord Browne-Wilkinson, with whom the other four judges agreed,
stated (at 132) that the House of Lords, ‘as the ultimate court of appeal, [must] have power to correct
any injustice caused by an earlier order of this House’. Having established this novel jurisdiction, Lord
Browne-Wilkinson went on to consider whether its exercise would be appropriate.

Lord Browne-Wilkinson
... Senator Pinochet does not allege that Lord Hoffmann was in fact biased. The contention is that
there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have
been biased, that is to say, itis alleged that there is an appearance of bias not actual bias.
The fundamental principle is that a man may not be a judge in his own cause. This principle, as
developed by the courts, has two very similar but not identical implications. First it may be applied
literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its
outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that heis a
party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his
304 e THE RULE AGAINST BIAS

automatic disqualification. The second application of the principle is where a judge is not a party to
the suit and does not have a financial interest in its outcome, but in some other way his conduct or
behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship
with a party. This second type of case is not strictly speaking an application of the principle that a
man must not be judge in his own cause, since the judge will not normally be himself benefiting, but
providing a benefit for another by failing to be impartial.
In my judgment, this case falls within the first category of case, viz where the judge is disqualified
because he is a judge in his own cause. In such a case, once it is shown that the judge is himself a
party to the cause, or has a relevant interest in its subject matter, he is disqualified without any
investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest
is sufficient to disqualify him unless he has made sufficient disclosure...| will call this “automatic
disqualification”.
InDimes v. Proprietors of GrandJunction Canal (1852) [Link] 759, the then Lord Chancellor, Lord
Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated
body. In the action the Lord Chancellor sat on appeal from the Vice-Chancellor, whose judgment in
favour of the company he affirmed. There was an appeal to your Lordships’ House on the grounds
that the Lord Chancellor was disqualified. Their Lordships consulted the judges who advised, at
p 786, that Lord Cottenham was disqualified from sitting as a judge in the cause because he had an
interest in the suit. This advice was unanimously accepted by their Lordships. There was no inquiry
by the court as to whether a reasonable man would consider Lord Cottenham to be biased and no
inquiry as to the circumstances which led to Lord Cottenham sitting. Lord Campbell said, at p 793:
“No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the
interest he had in this concern; but, my Lords, it is of the last importance that the maxim that
no man is to be a judge in his own cause should be held sacred. And that is not to be confined
to a cause in which he is a party, but applies to a cause in which he has an interest.” (Emphasis
added.)

On occasion, this proposition is elided so as to omit all references to the disqualification of a judge
who is a party to the suit: see, for example, R v. Rand (1866) L.R. 1 Q.B. 230; R v. Gough [1993] A.C.
646, 661. This does not mean that a judge who is a party to a suit is not disqualified just because
the suit does not involve a financial interest. The authorities cited in the Dimes case show how the
principle developed. The starting-point was the case in which a judge was indeed purporting to
decide a case in which he was a party. This was held to be absolutely prohibited. That absolute
prohibition was then extended to cases where, although not nominally a party, the judge had an
interest in the outcome.
The importance ofthis point in the present case is this. Neither A.1., nor A.I.C.L., have any financial
interest in the outcome of this litigation. We are here confronted, as was Lord Hoffmann, with a
novel situation where the outcome of the litigation did not lead to financial benefit to anyone. The
interest ofA.1. in the litigation was notfinancial; it was its interest in achieving the trial and possible
conviction of Senator Pinochet for crimes against humanity.
By seeking to intervene in this appeal and being allowed so to intervene, in practice A.I. became
a party to the appeal. Therefore if, in the circumstances, it is right to treat Lord Hoffmann as being
the alter ego ofA.|. and therefore a judge in his own cause, then he must have been automatically
disqualified on the grounds that he was a party to the appeal. Alternatively, even if it be not right to
say that Lord Hoffmann was a party to the appeal as such, the question then arises whether, innon
financial litigation, anything other than a financial or proprietary interest in the outcome is sufficient
automatically to disqualify aman from sitting as judge in the cause.
Are the facts such as to require Lord Hoffmann to be treated as being himself a party to this
appeal? The facts are striking and unusual. One of the parties to the appeal is an unincorporated
association, A.!. One of the constituent parts of that unincorporated association is A.I.C.L. A.I.C.L.
 THE RULE AGAINST BIAS e 305

was established, for tax purposes, to carry out part of the functions of A.I. — those parts
which
were charitable — which had previously been carried on either by A.I. itself or by A.I.L. [Amnesty
International Ltd, another related registered charity]. Lord Hoffmann is a director and chairman
of A.I.C.L., which is wholly controlled by A.I., since its members (who ultimately control it) are
all
the members of the international executive committee of A.|. A large part of the work of A.1I. is, as
a matter of strict law, carried on by A.I.C.L. which instructs A.I.L. to do the work on its behalf. In
reality, A.I., A.I.C.L. and A.I.L-are a close-knit group carrying on the work ofA.I.
However, close as these links are, | do not think it would be right to identify Lord Hoffmann
personally as being a party to the appeal. He is closely linked to A.|. but he is not in [Link]
this is an area in which legal technicality is particularly to be avoided, it cannot be ignored that Lord
Hoffmann took no part in running A.|. Lord Hoffmann, A.I.C.L. and the executive committee of A.I.
are in law separate people.
Then is this a case in which it can be said that Lord Hoffmann had an “interest” which must
lead to his automatic disqualification? Hitherto only pecuniary and proprietary interests have led
to automatic disqualification. But, as | have indicated, this litigation is most unusual. It is not civil
litigation but criminal litigation. Most unusually, by allowing A.I. to intervene, there is a party to
a criminal cause or matter who is neither prosecutor nor accused. That party, A.|., shares with
the government of Spain and the C.P.S., not a financial interest but an interest to establish that
there is no immunity for ex-heads of state in relation to crimes against humanity. The interest of
these parties is to procure Senator Pinochet’s extradition and trial a non-pecuniary interest. So
far as A.I.C.L. is concerned, clause 3(c) of its memorandum provides that one of its objects is “to
procure the abolition of torture, extra-judicial execution and disappearance.” A.|. has, amongst
other objects, the same objects. Although A.I.C.L., as a charity, cannot campaign to change the
law, itis concerned by other means to procure the abolition of these crimes against humanity. In my
Opinion, therefore, A.1.C.L. plainly had a non-pecuniary interest, to establish that Senator Pinochet
was not immune.
That being the case, the question is whether in the very unusual circumstances of this case anon-
pecuniary interest to achieve a particular resultis sufficient
to give rise to automatic disqualification
and, ifso, whether the fact that A.I.C.L. had such an interest necessarily leads to the conclusion that
Lord Hoffmann, as a director of A.I.C.L., was automatically disqualified from sitting on the appeal?
My Lords, in my judgment, although the cases have all dealt with automatic disqualification on
the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic
disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause.
In civil litigation the matters in issue will normally have an economic impact; therefore a judge is
automatically disqualified if he stands to make a financial gain as a consequence of his own decision
of the case. But if, as in the present case, the matter at issue does not relate to money or economic
advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge
applies just as much if the judge’s decision will lead to the promotion ofa cause in which the judge is
involved together with one of the parties. Thus in my opinion if Lord Hoffmann had been a member
of A.I. he would have been automatically disqualified because of his non-pecuniary interest in
establishing that Senator Pinochet was not entitled to immunity. Indeed, so much | understood to
have been conceded by Mr. Duffy [forAll.
Can it make any difference that, instead of being a direct member of A.I., Lord Hoffmann is a
director of A.I.C.L., that is of a company which is wholly controlled by A.!. and is carrying on much
of its work? Surely not. The substance of the matter is that A.I., A.I.L. and A.I.C.L. are all various
parts of an entity or movement working in different fields towards the same goals. If the absolute
impartiality of the judiciary isto be maintained, there must be arule which automatically disqualifies
a judge who is involved, whether personally or as a director of a company, in promoting the same
causes inthe same organisation as is a party to the suit. There is no room for fine distinctions if Lord
Hewart C.J.’s famous dictum is to be observed: it is “of fundamental importance that justice should
306 e« THE RULE AGAINST BIAS

not only be done, but should manifestly and undoubtedly be seen to be done:” see Rex. v. Sussex
Justices, Ex parte McCarthy [1924] 1 K.B. 256, 259.
Since, in my judgment, the relationship between A.I., A.I.C.L. and Lord Hoffmann leads to the
automatic disqualification of Lord Hoffmann to sit on the hearing of the appeal, it is unnecessary
to consider the other factors which were relied on by Miss Montgomery [for the claimant], viz. the
position of Lady Hoffmann as an employee of A.|. and the fact that Lord Hoffmann was involved
in the recent appeal for funds for Amnesty. Those factors might have been relevant if Senator
Pinochet had been required to show a real danger or reasonable suspicion of bias. But since
the disqualification is automatic and does not depend in any way on an implication of bias, it is
unnecessary
to consider
these factors. |do, however, wishto make it clear (if| have not already done
so) that my decisionis not that Lord Hoffmann has been guilty ofbias of any kind: he was disqualified
as amatter of law automatically by reason of his directorship of A.1.C.L., acompany controlled by a
party, A.l....
It is important not to overstate what is being decided. It was suggested in argument that a
decision setting aside the order of 25 November 1998 would lead to a position where judges would
be unable to sit on cases involving charities in whose work they are involved. It is suggested that,
because of such involvement, a judge would be disqualified. That is not correct. The facts of this
present case are exceptional. The critical elements are (1) that A.|. was a party to the appeal; (2)
that A.I. was joined in order to argue for a particular result; (3) the judge was a director ofa charity
closely allied to A.I. and sharing, in this respect, A.I.’s objects. Only in cases where a judge is taking
an active role as trustee or director of a charity which is closely allied to and acting with a party to
the litigation should a judge normally be concerned either to recuse himself or disclose the position
to the parties. However, there may well be other except:cases in which the judge would be well
advised to disclose a possible interest..

Their Lordships were unanimous that the petition should be granted, and the earlier decision of
the House of Lords was therefore set aside. A panel of seven Law Lords, none of whom had been
involved in the original appeal, was convened to reconsider the case. It concluded (by a majority of six
to one) that, in respect of a small number of the charges laid against him, Senator Pinochet was not
immune from extradition. The Home Secretary subsequently decided that Senator Pinochet should
be extradited to Spain. Later, however, the Home Secretary concluded that Senator Pinochet was
medically unfit to be tried; he therefore returned to Chile.

Lord Browne-Wilkinson was at pains, in his speech, to emphasize that — in two senses —
the extension of the automatic disqualification principle in Pinochet was less radical than
might initially appear. First, he stated that the principle, properly understood, applies
(and, in theory, has always applied) to all cases in which the judge is a party, or may be
treated as if a party because he has an interest — financial, proprietary, or otherwise — in
the outcome. Second, Lord Browne-Wilkinson was anxious to point out that the automatic
disqualification principle would, in the absence of a financial interest, operate only in the
event of a rare concatenation of circumstances, such as that which arose in Pinochet itself.
Thus in Helow vy. Secretary of State for the Home Department [2008] UKHL 62 [2008] 1
WLR 2416 there was no question of the Pinochet principle applying to a judge who was a
member of an organization which had expressed views arguably relevant to the case where
the organization was not involved in the proceedings and where the judge had not actively
associated herself with the views in question.
However, each of the points on which Lord Browne-Wilkinson relies in support of the
extension (or, as he would argue, clarification) of the rule in Pinochet is open to question.
First, one of the advantages usually ascribed to the automatic disqualification principle is
its efficiency: it permits the matter of disqualification to be dealt with straightforwardly,
 THE RULE AGAINST BIAS e 307

because it is triggered by particular kinds of interest — viz those which are financial and
proprietary. We have already seen that this hard-edged approach is blunted by the courts’
(understandable) willingness to examine the directness ofa financialinterest. Butthe position
is now further blurred by the recognition of a new category of non-financial interests which
are capable of activating the rule. This adds weight to the argument, advanced above, that the
more context-sensitive the automatic disqualification rule, the more blurred the distinction
between that rule and the apprehended bias rule becomes. This, in turn, further calls into
question the need for the former. Second, it is unclear, notwithstanding Lord Browne-
Wilkinson’s comments, precisely how limited the circumstances are in which the Pinochet
limb of the rule may apply. Lord Browne-Wilkinson seemed to require a combination of a
strong interest on the part of the judge in some cause anda close relationship between the
judge anda party to the case. In contrast, Lord Hutton ([2000] 1 AC 119 at 145) seemed to
suggest that the rule would operate in either of these situations — an approach which would
extend the ambit of Pinochet well beyond the very unusual circumstances of that case. The
better view is that the automatic disqualification principle should be narrowly constructed,
for the reasons advanced by the Court of Appeal in Locabail (UK) Ltd v. Bayfield Properties
Ltd [2000] QB 451 at [14]:

Since any extension of the automatic disqualification rule would also, inevitably, limit the
power of the judge and any reviewing court to take account of the facts and circumstances of a
particular case, and would have the potential to cause delay and greatly increased cost in the final
disposal of the proceedings, we would regard as undesirable any application of the present rule
on automatic disqualification beyond the bounds set by existing authority, unless such extension
were plainly required to give effect to the important underlying principles upon which the rule
is based.

In Meerabauxv. Attorney General of Belize [2005] UKPC 12 [2005] 2 AC 513, Lord Hope gave
further support to the view that Pinochet (No 2) should not be regarded as having effected
a major expansion of the automatic disqualification rule. He said (at [21]) that the decision
in Pinochet (No 2) ‘appears, in retrospect, to have been a highly technical one’ which turned
upon an unusual combination of factors — viz Lord Hoffmann’s close involvement in an
organization that was itself closely related to a party. Lord Hope also observed (at [22]) that
one of the ‘undercurrents’ in Pinochet (No 2) was the question whether the test for bias then
applicable to circumstances outside those attracting the automatic disqualification rule was
satisfactory. The courts subsequently concluded, as we explain at 10.3.2 below, that it was
not, and adopted a new test in its place. Lord Hope said (at [22]) that if that development had
taken place in or before Pinochet (No 2), ‘it is unlikely that [the House of Lords] would have
found it necessary to find a solution to the problem that it was presented with by applying
the automatic disqualification rule’.

QUESTION —
e Was the House of Lords right, in Pinochet, to extend the scope of the automatic
disqualification rule?

For further discussion of Pinochet andits implications, see Jones [1999] PL 391; Olowofoyeku
[2000] PL 456; Woodhouse (ed), The Pinochet Case: A Legal and Constitutional Analysis
(Oxford 2000); Malleson (2002) 22 LS 53.
308 e THE RULE AGAINST BIAS

103 The apprehension of bias

103.1 Suspicion, likelihood, danger: competing tests
The Court of Appeal commented in Locabail (UK) Ltd v. Bayfield Properties Ltd [2000]
QB 451 at [16] that:
In practice, the most effective guarantee of the fundamental right [to a fair hearing by an impartial
tribunal] ...is afforded not...by the rules which provide for disqualification on grounds of actual
bias, nor by those which provide for automatic disqualification, because automatic disqualification
on grounds of personal interest is extremely rare and judges routinely take care to disqualify
themselves, in advance of any hearing, in any case where a personal interest could be thought
to arise. The most effective protection of the right is in practice afforded by a rule which provides
for the disqualification of a judge, and the setting aside of a decision, if on examination of all the
relevant circumstances the court concludes that there was a real danger (or possibility) of bias.

Disqualification on the basis of an apprehension of bias is thus distinct from the automatic
disqualification principle, because the former, in contrast to the latter, requires a judgment
to be made about how the particular factual situation in question is likely to be perceived.
Disqualification is therefore not, on this basis, automatic — thereis no inevitable presumption
of bias; rather, disqualification follows only if the facts give rise to an apprehension or
perception of bias.
Although the apprehended bias principle can thus be distinguished relatively
straightforwardly from the automatic disqualification rule, the precise nature and content
of the former is more difficult to pin down. It was for some time unclear whether the correct
test to be applied was one based on a ‘reasonable suspicion’ ora ‘real likelihood’ of bias. This
semantic confusion reflected disagreement about deeper issues. Through whose eyes — the
court’s or a reasonable person’s — must the likelihood of bias be assessed? If the latter, how
much knowledge of the circumstances should be imputed to the reasonable person? And
what degree of likelihood is required — probability or mere possibility? Conflicting opinions
were advanced in the case law over the years — see Alexis [1979] PL 143 for discussion — but,
in R v. Gough [1993] AC 646, the House of Lords attempted to lay the confusion to rest. After
reviewing the authorities — in particular, R v. Sussex Justices, ex parte McCarthy [1924] 1
KB 256; R v. Barnsley Licensing Justices, ex parte Barnsley and District Licensed Victuallers’
Association [1960] 2 QB 167; and Metropolitan Properties Co (FGC) Ltd v. Lannon [1969] 1
QB 577 — Lord Goff (at 670) reached the following conclusion:
| think it possible, and desirable, that the same test should be applicable in all cases of apparent
bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or
with arbitrators. Likewise | consider that, in cases concerned with jurors, the same test should be
applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn
in the course of a trial, and by the Court of Appeal when it considers such a question on appeal.
Furthermore, | think it unnecessary, in formulating the appropriate test, to require that the court
should look at the matter through the eyes of areasonable man, because the court in cases such as
these personifies the reasonable man; and in any event the court has first to ascertain the relevant
circumstances from the available evidence, knowledge of which would not necessarily be available
to an observer in court at the relevant time. Finally, for the avoidance of doubt, | prefer to state
 THE RULE AGAINST BIAS e 309

the test in terms of real danger rather than real likelihood, to ensure that the court is thinking
in
terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant
circumstances, the court should ask itself whether, having regard to those circumstances, there
was areal danger of bias on the part of the relevant member of the tribunal in question, inthesense
that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of aparty
to the issue under consideration by him...

The conclusion in Gough (for further discussion of which see Bing [1998] Crim LR 148)
that the law should be concerned with whether there is a possibility of bias — rather than
determining that bias is, on the balance of probabilities, established — is uncontroversial. The
difficulty which Gough created concerned the perspective from which the determination as to
a possibility of bias was to be made. By holding that the matter was to be decided by reference
to the court’s evaluation of the circumstances, the impression was given — notwithstanding
Lord Goff’s insistence that the court personifies the reasonable person — that the test was
concerned with the possibility of actual bias, rather than with how members of the public
might perceive the impartiality or otherwise of the decision-maker. This, in turn, gave rise
to the view that the law in this area was no longer concerned with Lord Hewart’s guiding
principle that justice must be seen to be done.
Thus, in R v. Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 at 151,
Simon Brown L) concluded, on the basis of Gough, that ‘by the time the legal challenge
comes to be resolved, the court is no longer concerned strictly with the appearance of bias
but rather with establishing the possibility that there was actual although unconscious
bias’. In the same case, Lord Bingham MR (at 161) went so far as to suggest that ‘if despite
the appearance of bias the court is able to examine all relevant material and satisfy itself
that there was no danger of the alleged bias having in fact caused injustice, the impugned
decision will be allowed to stand’. However, Rayment [1996] JR 102 at 103-104 suggests that
Gough was, in cases such as Dallaglio, misunderstood, and that Lord Goff’s intention, in
concentrating upon the court’s rather than the reasonable person’s impression, was simply
to ensure that the person through whose eyes the facts are assessed would, in the first place,
be in receipt of the relevant facts:

The problem stems from the substitution in Gough of the reasonable man’s impression for the
impression of the court. It was not meant, | suggest, that the court should try to evaluate whether
or not the original decision was [actually] unfair as a result of bias. It was simply an attempt to limit
the overly sinister impression sometimes given by the reasonable man perspective. What Lord Goff
could have said was that the reasonable man should be deemed to know the circumstances of the
case before forming his impression. He was simplifying things by expressing the test as one to be
applied directly from the court’s perspective, as it would clearly know the background to a case.
But he did not mean that the court should go through the evidence again to determine the danger
of an actually biased result as happened in Dallaglio.

Nevertheless, the High Court of Australia refused to follow Gough in Webb v. The Queen
(1994) 181 CLR 41. Mason CJ and McHugh J were strongly critical of Gough, arguing that it
was based on
the assumption that public confidence in the administration of justice will be maintained because
the public will accept the conclusions of the judge. But the premise on which the decisions in
this Court are based is that public confidence in the administration of justice is more likely to be
maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member
of the public to the irregularity in question.
310 e THE RULE AGAINST BIAS

103.2 Beyond Gough: the fair-minded and

informed observer
In light of the difficulties caused by the Gough test, Lord Browne-Wilkinson, in Pinochet
(No 2) [2000] 1 AC 119 at 136, indicated that the test may need to be reconsidered. The Court
of Appeal did precisely that in Re Medicaments and Related Classes of Goods (No 2) [2001] 1
WLR 700. Having reviewed the authorities, Lord Phillips MR said (at [46]) that

it was possible [before Gough] to identify two alternative tests applied by the courts, usually in
criminal proceedings, when considering whether a decision was vitiated on account of bias. (1) Did
it appear to the court that there was a real danger that the judge had been biased? (2) Would an
objective onlooker with knowledge of the material facts have a reasonable suspicion that the judge
might have been biased?

In comparing these tests, two issues should be noted. The first concerns the material to be
taken into account in assessing the possibility of bias. On this point, his Lordship (op cit at
[47]) observed that

the two tests should produce the same result unless, when applying the first test, the court has
regard to matters which do not form part of the “material facts” that fall to be taken into account
when applying the second test.

This is self-evident. If, in assessing the likelihood of bias, the court takes into account all
information available to it, then the test may collapse into one for the actual possibility of
bias. In contrast, as Lord Phillips went on, at [65], to explain:

Once the reviewing court excludes from consideration matters known to it which would be
outside the ken of ordinary, reasonably well informed members of the public, it seems to us that a
hypothetical rather than an actual test of the likelinood of bias is being applied.

The second point concerns the evaluation of the relevant material. In Medicaments, the
Court of Appeal recognized a distinction between judicial and public perceptions. Lord
Phillips asked (at [67]):

What is the court to do where, although inclined to accept a statement about what the judge
under review knew at any material time, it recognises the possibility of doubt and the likelinood of
public scepticism? It is invidious for the reviewing court to question the word of the judge in such
circumstances, but less so to say that the objective onlooker might have difficulty in accepting it.

The policy objective of preserving public confidence in the judicial and administrative
machinery favours giving weight to the likely perceptions of the public — and constructing
those perceptions on the basis of material available to ordinary, informed members of the
public. In light of these considerations, the Court of Appeal concluded that the Gough
test should be modified. The relevant passage from the Court’s judgment is set out in the
following extract from Porter v. Magill (for comment on which see Williams [2002] CL] 249
and Rowbottom (2002) 118 LQR 364), in which the House of Lords, subject to a semantic
qualification, endorsed this modification of Gough. Although, in Medicaments, the Court
of Appeal only revised Gough to the extent of its inconsistency with Article 6 ECHR, the
following case modifies the test to be applied by English courts irrespective of whether the
ECHR applies. There is therefore now ‘no difference between the test for bias at common law
 THE RULE AGAINST BIAS e 311

and under Article 6 (Kataria v. Essex Strategic Health Authority [2004] EWHC 641 (Admin)
[2004] 3 All ER 572 at [46], per Stanley Burnton J).

Porterv. Magill [2001] UKHL 67 [2002] 2 AC 357

House of Lords
In the mid-1980s Westminster City Council, under the leadership and deputy leadership of (resp-
ectively) Shirley Porter and David Weeks, adopted a policy of selling council houses to tenants in
marginal wards in the hope that this would encourage them to vote for the Conservative Party. Legal
advisors had indicated that an earlier version of the policy, under which only houses in marginal wards
would have been offered for sale, was unlawful, and so a revised policy was implemented which
permitted the sale of a larger number of homes, while still offering for sale those in the marginal wards.
Opposition councillors argued that the policy would inhibit the local authority from discharging its
obligations as a housing authority, and notified the auditor unders 17 of the Local Government Finance
Act 1972. The auditor investigated the matter and certified, under s 20, that a number of councillors
and officers, including Porter and Weeks, were guilty of wilful misconduct, by knowingly adopting and
implementing a policy which was unlawful (because it deployed the power to sell council homes for an
illegitimate, party political purpose). The councillors and officers were therefore liable to make good
the loss of £31 million which they had caused to the council. Porter and Weeks unsuccessfully appealed
against the auditor’s decision to the Divisional Court. Ona further appeal, however, the Court of Appeal
quashed the auditor’s certificates on the ground that the unlawful objectives of Porter, Weeks, and
various others could not be said to have caused the losses which later occurred, because the policy
had been implemented following approval by the housing committee — an event which, the Court of
Appeal concluded, broke the chain of causation between the conduct of Porter, Weeks, and the other
individuals concerned, and the losses. The auditor appealed to the House of Lords, which concluded
that the losses could be attributed to the conduct of Porter and Weeks. However, Porter and Weeks
argued that, irrespective of the causation issue, the auditor’s decision could not stand, because it was
tainted by apparent bias, caused by a media conference which the auditor had held.

Lord Hope of Craighead

[100] The “reasonable likelihood” and “real danger” tests which Lord Goff described in R v Gough
have been criticised by the High Court of Australia on the ground that they tend to emphasise the
court’s viewof the facts and to place inadequate emphasis on the public perception of the irregular
incident: Webb v The Queen (1994) 181 CLR 41, 50 per Mason CJ and McHugh J. There is an uneasy
tension between these tests and that which was adopted in Scotland by the High Court ofJusticiary
in Bradford v McLeod, 1986 SLT 244. Following Eve J’s reference in Law v Chartered Institute of
Patent Agents [1919] 2 Ch 276 (which was not referred to in R v Gough), the High Court of Justiciary
adopted a test which looked at the question whether there was suspicion of bias through the eyes
of the reasonable man who was aware of the circumstances: see also Millar v Dickson 2001 SLT
988, 1002L-1003B. This approach, which has been described as “the reasonable apprehension of
bias” test, is in line with that adopted in most common law jurisdictions. It is also in line with that
which the Strasbourg court has adopted, which looks at the question whether there was a risk of
bias objectively in the light of the circumstances which the court has identified: Piersackv Belgium
(1982) 5 EHRR 169, 179-180, paras 30-31; De Cubber v Belgium (1984) 7 EHRR 236, 246, para 30;
Puillar v United Kingdom (1996) 22 EHRR 391, 402-403, para 30. In Hauschildt v Denmark (1989) 12
EHRR 266, 279, para 48 the court also observed that, in considering whether there was a legitimate
reason to fear that a judge lacks impartiality, the standpoint of the accused is important but not
decisive: “What is decisive is whether this fear can be held objectively justified.”
[101] The English courts have been reluctant, for obvious reasons, to depart from the test
which Lord Goff of Chieveley so carefully formulated in R v Gough. In R v Bow Street Metropolitan
312 e THE RULE AGAINST BIAS

Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 136A-C Lord Browne-
Wilkinson said that it was unnecessary in that case to determine whether it needed to be reviewed
in the light of subsequent decisions in Canada, New Zealand and Australia. |said, at p 142F-—G, that,
although the tests in Scotland and England were described differently, their application was likely
in practice to lead to results that were so similar as to be indistinguishable. The Court of Appeal,
having examined the question whether the “real danger” test might lead to a different result from
that which the informed observer would reach on the same facts, concluded in Locabail (UK) Ltd v
Bayfield Properties Ltd [2000] QB 451, 477 thatinthe overwhelming majority of cases the application
of the two tests would lead to the same outcome.
[102] In my opinion however it is now possible to set this debate to rest. The Court of Appeal
took the opportunity in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700
to reconsider the whole question. Lord Phillips of Worth Matravers MR, giving the judgment of
the court, observed, at p 711A—B, that the precise test to be applied when determining whether
a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial
decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v Gough
had not commanded universal approval. At p 711B—C he said that, as the alternative test had been
thought to be more closely in line with Strasbourg jurisprudence which since 2 October 2000 the
English courts were required to take into account, the occasion should now be taken to review R
v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence.
Having conducted that review he summarised the court’s conclusions, at pp 726H—-727C:
“85 When the Strasbourg jurisprudence is taken into account, we believe that a modest
adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no
different from the test applied in most of the Commonwealth and in Scotland. The court must
first ascertain all the circumstances which have a bearing on the suggestion that the judge was
biased. It must then ask whether those circumstances would lead a fair-minded and informed
observer to conclude that there was a real possibility, or a real danger, the two being the same,
that the tribunal was biased.”
[103] | respectfully suggest that your Lordships should now approve the modest adjustment of the
test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which
is in harmony with the objective test which the Strasbourg court applies when it is considering
whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible
conflict with the test which is now applied in most Commonwealth countries and in Scotland. |
would however delete from it the reference to “areal danger”. Those words no longer serve a useful
purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is
whether the fair-minded and informed observer, having considered the facts, would conclude that
there was a real possibility that the tribunal was biased.
[104] Turningtothe facts, therearetwopointsthatnee atthe outset.
dtobemade
Thefirstrelates
to the auditor's own assertion that he was not biased. The Divisional Court said, at p 174A-B, that
ithad had particular regard to his reasons for declining to recuse himself in reaching its conclusion
that he had an open mind and was justified in continuing with the subsequent hearings. | would
agree that the reasons that he gave were relevant, but an examination of them shows that they
consisted largely of assertions that he was unbiased. Looking at the matter from the standpoint
of the fair-minded and informed observer, protestations of that kind are unlikely to be helpful. |
think that Schiemann LJ adopted the right approach in the Court of Appeal when he said that he
would give no weight to the auditor’s reasons: [2000] 2 WLR 1420, 1457H. The second point relates
to the emphasis which the respondents place on how the auditor’s conduct appeared from the
standpoint of the complainer. There is, as | have said, some support in the jurisprudence of the
Strasbourg court for the proposition that the standpoint of the complainer is important. But in
Hauschildt v Denmark (1989) 12 EHRR 266, 279, para 48 the court emphasised that what is decisive
 THE RULE AGAINST BIAS e 313

is whether any fears expressed by the complainer are objectively justified. The complainer’s fears
are clearly relevant at the initial stage when the court has to decide whether the complaint is one
that should be investigated. But they lose their importance once the stage is reached of looking at
the matter objectively.
[105] | think that it is plain, as the Divisional Court observed, at p 174B, that the auditor made
an error of judgment when he decided to make his statement in public at a press conference. The
main impression which this would have conveyed to the fair-minded observer was that the purpose
of this exercise was to attract publicity to himself, and perhaps also to his firm. It was an exercise
in self-promotion in which he should not have indulged. But it is quite another matter to conclude
from this that there was a real possibility that he was biased. Schiemann LJ said, at p 1457D-E, that
there was room for a casual observer to form the view after the press conference that the auditor
might be biased. Nevertheless he concluded, at p 1457H, having examined the facts more closely,
that there was no real danger that this was so. |would take the same view. The question is what the
fair-minded and informed observer would have thought, and whether his conclusion would have
been that there was real possibility of bias. The auditor’s conduct must be seen in the context of
the investigation which he was carrying out, which had generated a great deal of public interest.
A statement as to his progress would not have been inappropriate. His error was to make it at a
press conference. This created the risk of unfair reporting, but there was nothing in the words he
used to indicate that there was a real possibility that he was biased. He was at pains to point out to
the press that his findings were provisional. There is no reason to doubt his word on this point, as
his subsequent conduct demonstrates. | would hold, looking at the matter objectively, that a real
possibility that he was biased has not been demonstrated...

Their Lordships unanimously supported Lord Hope’s comments on the test for bias, and agreed that
the auditor’s decision should not be set aside. Their Lordships were also in agreement that the actions
of Porter and Weeks had caused the relevant losses. Appeals allowed.

QUESTIONS
¢ How does the Porter v. Magill test differ from that advanced in Gough?
e Is the former an improvement on the latter? Why (not)?

103.3. Whois the fair-minded and informed observer?

Although Porter v. Magill provided welcome clarification of the test, that decision did not
prove to be a panacea. However, subsequent case law has served to clarify the meaning of the
test. Three particular points should be noted.
First, an obvious question arises in relation to the test: exactly how informed is the observer?
In Medicaments at [65], Lord Phillips appeared to suggest that the court should have regard
only to such information as would be apparent to ‘ordinary, reasonably well informed members
of the public’. Similarly, in Gillies v. Secretary of State for Work and Pensions [2006] UKHL 2
[2006] 1 WLR 781 at [17], Lord Hope said that the observer ‘can be assumed to have access to
all the facts that are capable of being known by members of the public generally’. However,
in some cases, this has been taken to mean that the observer may take steps to equip himself
with knowledge that can be obtained by members of the public, albeit that the information
in question might not normally be possessed by such people. As Stanley Burnton LJ put it in
314 «© THE RULE AGAINST BIAS

Virdi v. Law Society ofEngland and Wales [2010] EWCA Civ 100 [2010] 3 All ER 653 at [39], ‘A
fair-minded person would not reach a conclusion that a tribunal was biased or appeared to be
so, without seeking to obtain the full facts and any explanation put forward by the tribunal.’

Taylorv. Lawrence [2002] EWCA Civ 90 [2003] QB 528

Court of Appeal

The judge, in a case concerning the trial of a boundary dispute, told the parties that he had been a
client of the claimants’ solicitors, but had not used their services for a number of years. Although
none of the parties raised any objection at that time, the defendants later appealed, alleging an
appearance of bias. Before the appeal was heard, it transpired that the judge and his wife had used
the solicitors to amend their wills the night before he delivered his judgment; the appeal, however,
was dismissed. When it later became apparent that the firm had made no charge for amending the
wills, the defendants sought to have the appeal reopened.

Lord Woolf CJ (delivering the judgment of the court)

[60] While before the Pinochet litigation an allegation of bias in the court was a rare event, such
complaints are now becoming increasingly prevalent. In Locabail (UK) Limited v Bayfield Properties
Limited [2000] QB 451 after hearing anumber of appeals at the same time this court sought to give
guidance as to the principles which should be applied. Fortunately, subsequently, in a soeech of
Lord Hope of Craighead in Magill v Porter and Weeks [2001] UKHL 67 at [99]—[104], the House of
Lords has put to rest the conflicting views as to how the test in cases of apparent bias should be
expressed... [Lord Woolf CJ set out the fair-minded observer test, and continued:]
[61] The fact that the observer has to be “fair-minded and informed” is important. The informed
observer can be expected to be aware of the legal traditions and culture of this jurisdiction. Those
legal traditions and that culture have played an important role in ensuring the high standards of
integrity onthe part ofboth the judiciary andthe profession which happily still existin this jurisdiction.
Our experience over centuries is that this integrity is enhanced, not damaged, by the close relations
that exist between thejudiciary and the legal profession. Unlike some jurisdictions the judiciary here
does not isolate itself from contact with the profession. Many examples of the traditionally close
relationship can be given: the practice of judges and advocates lunching and dining together at the
Inns of Court; the Master of the Rolls’s involvement in the activities of the Law Society; the fact that it
is commonplace, particularly in specialist areas of litigation and on the circuits, for the practitioners
to practise together in a small number of chambers and in a small number offirms of solicitors, and
for members of the judiciary to be recruited from those chambers and firms.
[62] It is also accepted that barristers from the same chambers may appear before judges
who were former members of their chambers or on opposite sides in the same case. This close
relationship has not prejudiced but enhanced the administration of justice. The advantages interms
of improved professional standards which can flow from these practices have been recognised
and admired in other jurisdictions. Again by way of example, in the United States they have in
recent years established the rapidly expanding American Inns of Court modelled on their English
counterparts with the objective of improving professional standards.
[63] The informed observer will therefore be aware that in the ordinary way contacts between
the judiciary and the profession should not be regarded as giving rise to a possibility of bias. On the
contrary, they promote an atmosphere which is totally inimical to the existence of bias. Whatis true
of social relationships is equally true of normal professional relationships between a judge and the
lawyers he may instruct in a private capacity...
[72] We have not only carefully considered the “new evidence” [relating to the fact that the wills
were altered without charge] but we have also reviewed the facts as a whole, applying the now
 THE RULE AGAINST BIAS e 315

established test for bias, and having done so we do not accept that any case of apparent bias onthe
part of the judge is made out. We regard it as unthinkable that an informed observer would regard
it as conceivable that a judge would be influenced to favour a party in litigation with whom he has
no relationship merely because that party happens to be represented by a firmof solicitors who are
acti forthe
ng
judge in a purely personal matter in connection with a will. There is no reasonto doubt
the explanation for a bill not being rendered. There is no evidence that the judge knew that this was
to be the case, but, even if he did, it would not alter our view...
[74] The judge was not required to raise his personal relations with the solicitors and it was a
mistake to do so. After he had made that mistake, his subsequent conduct fuelled the Lawrences’
suspicions. Regrettably the Lawrences’ response to what has happened has been a wholly
disproportionate suspicion. They are not in a position to be objective, as they cannot accept a
court could decide this unfortunate litigation against them unless there was bias. The fact that
their feelings are no doubt genuine cannot be allowed to dictate our conclusion. To decide that the
circumstances on which they rely could give rise to a suspicion of bias would put atrisk the way in
which the judiciary and the legal profession conduct their relationship; a relationship which has
long served the interests ofjustice in this country.

The substantive application was dismissed.

QUESTIONS
° Wasit appropriate to impute to the fair-minded observer knowledge of how the legal
profession is structured and of the relationship between judges and members of the-
_ professions?
¢ How, ifat all, might the court’s reasoning have differed had it applied the real
danger, rather than the fair-minded observer, test?

The courts have shown asimilar level of willingness to impute specialist knowledge to the
hypothetical observer in other cases (eg Hart v. Relentless Records Ltd [2002] EWHC 1984
(Ch) [2003] FSR 36 and Taylor v. Williamson [2002] EWCA Civ 1380).
The second question concerning the fair-minded and informed observer test concerns the
notional observer's attitude. A particularly trusting person would be far less likely than an
especially cynical one to perceive a real possibility of bias: so how suspicious is the notional
observer? This point was considered by Lord Steyn in Lawal v. Northern Spirit Ltd [2003]
UKHL 35 [2004] 1 All ER 187 at [14]:

Itis unnecessary to delve into the characteristics to be attributed to the fair-minded and informed
observer. What can confidently be said is that one is entitled to conclude that such an observer will
adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 201
CLR 488 , 509,-para 53, by KirbyJwhen he stated that “a reasonable member of the public is neither
complacent nor unduly sensitive or suspicious”.

Stated in the abstract, this guidance is not particularly helpful. The extent of the notional
observer’s tendency to be suspicious is therefore better ascertained by inference from the way
in which the test has been applied within particular factual matrices. It may, for instance,
be supposed on the basis of Taylor v. Lawrence that the fair-minded observer is peculiarly
trusting. (Further examples, which may shed additional light on this matter, are given in the
following paragraphs.)
Third, it is also important to consider the observer's powers of reasoning. In fact, this point
relates closely to the second. If, for instance, the fair-minded and informed observer is capable
316 e THE RULE AGAINST BIAS

of appreciating the existence and significance of subtle distinctions, he may, in particular

circumstances, be less likely to perceive a real possibility of bias. Conversely, if his approach
is broad-brush — ‘no smoke without fire!’ — then there is a greater likelihood of a perception
of bias. Cases like Gillies v. Secretary of State for Work and Pensions [2006] UKHL 2 [2006] 1
WLR 781, in which the alleged perception of bias emanates from the fact that someone has
two potentially conflicting roles, exemplify this point. In Gillies, a doctor had for several
years acted as an ‘examining medical practitioner’ (“EMP”) on behalf of the (now defunct)
Benefits Agency by reporting on the medical circumstances of individuals claiming disability
and incapacity benefits. The doctor also sat (albeit not in cases in which she had written
reports) as the medically-qualified member of the appeal tribunal, the function of which was
to determine disputes between benefit claimants and the Agency. The claimant — who had
lost a tribunal case concerning entitlement to disability benefit, and in which the doctor had
sat — alleged that the doctor’s dual role gave rise to the appearance ofa real possibility of bias,
an argument which failed before the House of Lords. Lord Hope said (at [17]) that

It is to be assumed... that [the fair-minded and informed observer] is able to distinguish between
what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide
what weight should be given to the facts that are relevant.

This led to two conclusions. First, said Lord Hope (at [18]), the fair-minded observer would
not make the crude assumption that the doctor ‘was to be seen as a Benefits Agency doctor
or that she was in some other way aligned with the Benefits Agency:
Her relationship with the Benefits Agency was as an independent expert adviser. Her advice
was sought and given because of the skills that she was able to bring to bear on medical issues
in the exercise of her professional judgment. A fair-minded observer who had considered the
facts properly would appreciate that professional detachment and the ability to exercise her own
independent judgment on medical issues lay at the heart of her relationship with the Benefits
Agency. He would also appreciate that she was just as capable of exercising those qualities when
sitting as the medical member of a disability appeal tribunal. So there is no basis for a finding that
there was a reasonable apprehension ofbias on the ground that Dr Armstrong had a predisposition
to favour the interests of the Benefits Agency. Nor, it must be emphasised, is there any suggestion
that she did or said anything in the course of her work which might be thought to cast doubt on her
impartiality or her integrity.

Second, in his Lordship’s view, the question then became

[19] ...whether there were grounds for thinking that Dr Armstrong was likely to be unconsciously
biased when she was examining the medical evidence because ofa predisposition to prefer the EMP
report as against any contrary evidence due simply to her current involvement in providing reports
as an EMP. Doctors holding current engagements to provide these reports can be assumed, no
doubt, to have a special interest and experience in this kind of work. The group of doctors to which
they belong can also be distinguished from NHS doctors generally... .But why should these facts be
said to lead to the conclusion that there was a real possibility that she was biased in favour of the
views expressed by the EMP?
[20] The weakness of the argument that this was a real possibility is exposed as soon as the task
that Dr Armstrong was performing as an EMP is compared with the task which she was performing
on the tribunal. In each of these two roles she was being called upon to exercise an independent
professional judgment, drawing upon her medical knowledge and her experience. The fair-
minded observer would understand that there is a crucial difference between approaching the
issues which the tribunal had to decide with a predisposition in favour of the views of the EMP,
and drawing upon her medical knowledge and experience when testing those views against the
 THE RULE AGAINST BIAS e 317

other evidence. He would appreciate, looking at the matter objectively, that her knowledge and
experience could cut both ways as she would be just as well placed to spot weaknesses in these
reports as to spot their strengths. He would have no reason to think, in the absence of any other
facts indicating the contrary, that she would not apply her medical knowledge and experience in
just the same impartial way when she was sitting as a tribunal member as she would when she was
acting as an EMP.
[21] ... The observer would appreciate that Dr Armstrong’s experience of working as an EMP
would be likely to be of benefit to her, and through her to the other tribunal members, when she
was evaluating the EMP report. The exercise of her independent judgment, after all, was the
function that she was expected to perform as the tribunal’s medical member. Her experience inthe
preparation of these reports was an asset which was available, through her, for the other tribunal
members to draw upon when they were considering the whole ofthe evidence.

It does not, however, inevitably follow that no real possibility of bias will be perceived in
circumstances where the decision-maker has two potentially conflicting roles. For instance,
it was held in Lawal v. Northern Spirit Ltd [2003] UKHL 35 [2004] 1 All ER 187 that the
observer would perceive a real possibility of bias when a barrister appeared before an
Employment Appeal Tribunal which included lay members who had previously sat with
the barrister in his capacity as a part-time judicial member of the Tribunal. Similarly, in
Davidson v. Scottish Ministers [2004] UKHL 34a judge in the Scottish Court of Session was
held to be disqualified by virtue of the fact that, in the case in question, he was called upon
to interpret legislation whose meaning he had advised the House of Lords on in his former
capacity as Lord Advocate. The fair-minded and informed observer, said Lord Bingham at
[17], ‘would conclude that there was a real possibility that [the judge], sitting judicially, would
subconsciously strive to avoid reaching a conclusion which would undermine the very clear
assurances he had given to Parliament [as to the effect of the legislation in question].’ And in
Rv. Secretary of State for the Home Department, ex parte Al-Hasan [2005] UKHL 13 [2005]
1 WLR 688, a deputy prison governor who had been present when it was decided that all
inmates on particular wings should be searched was disqualified from later adjudicating
in a case in which prisoners challenged the legitimacy of the decision. Lord Brown (at [39])
concluded that ‘a fair-minded observer could all too easily think him predisposed to find
it lawful. After all, for him to have decided otherwise would have been to acknowledge that
the governor ought not to have confirmed the order and that he himself had been wrong to
acquiesce in it’

QUESTIONS
« Was the House of Lords in Gillies guilty of ascribing inappropriately sophisticated
powers of reasoning to the fair-minded and informed observer?
¢ Does such an approach risk assimilating the observer to a judge, thereby reinstating
by the back door the much-criticized approach which Gough was perceived to have
introduced? /

It is arguable, on the: basis of the cases considered above, that the courts have failed to
characterize the notional observer in terms that are sufficiently distinct from those of
reviewing courts, leading to the risk that decisions will be upheld when ordinarily suspicious,
averagely informed members of the public would entertain real doubts about the impartiality
of the decision-maker. However, in Virdi v. Law Society of England and Wales [2010] EWCA
Civ 100 [2010] 3 All ER 653 at [38], Stanley Burnton LJ (with whom Lloyd and Jacob LJJ
318 e THE RULE AGAINST BIAS

agreed) indicated that the purpose of the fair-minded observer test is not, as might have
been thought, to acknowledge that reviewing courts’ perceptions may diverge from those of
normal people. Rather, having already (as noted above) said that the observer would be in
receipt of the ‘full facts’, he said that the observer is simply ‘a construct, a tool, a hypothetical
conception posited in order to assist the Court in deciding whether the proceedings in
question were and were seen to be fair... Ifon examination ofall the relevant facts, there was
no unfairness or any appearance of unfairness, there is no good reason for the imaginary
observer to be used to reach a different conclusion. It is hard to see, at least on the face of it,
how this view can withstand the authority of Porter v. Magill, given that it endorsed the test
laid down in Medicaments, which, as we saw above at 10.3.2, was formulated on the basis that
the previous test laid down in R v. Gough risked inappropriately conflating the perspectives
of the reviewing court and the reasonable person. Indeed, if the view advanced in Virdi is
accepted, it begs the question what purpose, if any, does and should the observer test serve?
None, according to Olowofoyeku [2009] CL] 388 at 406-407:

Choosing the perspective of a lay person rather than that of the reviewing court might look
attractive from the points of view of the avoidance of excessive legalism and of engendering public
confidence on a matter in which the public may be suspicious — judges judging judges. However,
having seen the kinds of knowledge routinely attributed to the fictitious lay person, it is obvious
that the courts are quite unable to resolve convincingly the question of how this matter would
appear to a lay person. The best way to ensure that such a fiction becomes reality is to empanel
lay juries in bias cases, hence leaving the question of how the matter would appear to a lay person
to real lay persons. Unless that is done, then the courts might as well assume the position of the
impartial observer. This would not require any significant change to the current principle. It would
only involve dispensing with a fictional and theoretical “middle-man’”.

QUESTION
¢ Olowofoyeku readily acknowledges that he is calling for a return to the Gough test. Is
he right to do so?

10.4 Bias, policy, and politics

The cases considered above largely concern the requirement that judges, or others exercising
functions similar to those of judges, should be unbiased. To what extent do — and should —
the same requirements apply to other decision-makers whose position may be explicitly
political? It is helpful, in this context, to distinguish between two types of scenario.
In the first, there is a suspicion that a ‘political’ decision-maker, such as a Minister or a
local councillor, may be influenced by some improper personal interest in or connection with
the case: for instance, a decision might have to be made about an individual with whom
the decision-maker has some sort of association, through friendship, family or business
connections, or some other form of nexus. Here, the political context is, in truth, irrelevant,
and there is no good reason for exempting political decision-makers from the same standards
as those considered above. This point was recognized by Pill LJ in R (Lewis) v. Redcar and
Cleveland Borough Council [2008] EWCA Civ 746 [2009] 1 WLR 83 at [62], when he said that,
 THE RULE AGAINST BIAS e 319

“There is no doubt that councillors who have a personal interest, as defined in theauthorities,
must not participate in council decisions.’
That scenario, however, must be contrasted with a second, in which the allegation is that
a political figure is influenced, in the making of a particular decision, by considerations
unconnected with his personal circumstances. For example, it might be argued that a
particular councillor or Minister is tainted by apparent bias because he is called upon to
make a decision in a specific case which touches upon general policy matters on which he
has already expressed a view in public debate, or on which his party has already made a
commitment via its election manifesto. Here, the complaint is not that the decision-maker
has a personal interest as such in the outcome, but that he may, to some extent, be wedded to
a position with which he has already associated himself, such that when he comes to exercise
discretion he may fail to do so with an open mind.
The question is whether cases falling into this category should be treated as lying within
the scope of the rule against apparent bias. This requires us to think carefully about the nature
and purpose of that rule. To an extent, it is simply a particular manifestation of the relevancy
doctrine. Weknowfromch8 thatdecision-makers may notlawfullytakeintoaccountirrelevant
considerations. But we also know that a decision can be set aside on relevancy grounds only
if the irrelevant consideration actually influenced the decision-maker. In contrast, the rule
against bias is more easily invoked: all that need be established is the perception of a real
possibility that some prohibited factor entered into play. What demarcates the respective
provinces of the relevancy doctrine and the rule against bias is — or at least ought to be — the
notion that there exists a particular subset of considerations which, if taken into account,
would be so inimical to good administration that, first, there are no circumstances (short of
statutory authorization) in which they may legitimately be considered and, second, even the
suspicion that they have operated should result in the invalidity of the decision.
It is arguable that the sort of ‘political’ considerations presently under discussion should
not be regarded as falling within the subset of factors with which the rule against bias is
properly concerned. Properly understood, the objection in cases of this type is not that the
decision-maker took into account the matter in question, but that he accorded it so much
importance as to crowd out other relevant considerations. In the light of this, it is arguable
that such cases should not be analysed by reference to the rule against bias. Consider, for
instance, the following remarks of Sedley J in R v. Secretary of State for the Environment, ex
parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304 at 235:
In the case of an elected body the law recognises that members will take up office with publicly
stated views on a variety of policy issues...[W]here predetermination of issues or forfeiture of
judgment is alleged, the court will be concerned to distinguish, within the statutory framework,
legitimate prior stances or experience from illegitimate ones. But such issues will be governed by
the separate line of authority on predetermination.

This view was endorsed and amplified by Ouseley J in R (C (A Child)) v. Camden London
Borough Council [2001] EWHC Admin 1116 at [254]:
The first question is whether there was areal danger that a Councillor’s decision would be influenced
by a personal interest, or putting it in what may be a slightly different formulation of the test for
bias...: would the fair-minded observer, knowing the background, consider that there was a real
danger of bias from, in this context, a personal interest held by a councillor? There is an important
distinction between bias from a personal interest and a predisposition, short of predetermination,
arising say from prior consideration of the issues or some aspect ofa proposal. The decision-making
structure, the nature of the functions and the democratic political accountability of Councillors
320 e¢ THE RULE AGAINST BIAS

permit, indeed must recognise, the legitimate potential for predisposition towards a particular
decision. The source of the potential bias has to be a personal interest for it to be potentially
objectionable in law.

However, this view — which treats predetermination as a separate matter from bias,
such that the mere appearance of predetermination is insufficient — has not been fully
endorsed in more recent cases. Take, for instance, R (Island Farm Development Ltd) v.
Bridgend County Borough Council [2006] EWHC 2189 (Admin). A local election disrupted
negotiations between a company and a council over the purchase by the former of a piece
of land owned by the latter. After the election, the new council refused to sell the land.
The company unsuccessfully argued that the decision was tainted by apparent bias: some of
the councillors had fought the election arguing the land should not be sold, and some had
helped local action groups campaigning against the sale of the land. Collins J said:
[30] ...Councillors will inevitably be bound to have views on and may well have expressed them
about issues of public interest locally. Such may, as here, have been raised as election issues. It
would be quite impossible for decisions to be made by the elected members whom the law requires
to make them if their observations could disqualify them because it might appear that they had
formed a view in advance...
[31] ...Councillors must...approach their decision-making with an open mind in the sense
that they must have regard to all material considerations and be prepared to change their views if
persuaded that they should.

Collins Jadopted the approach outlined above in that he based his decision on the distinction
between legitimate predisposition and illegitimate predetermination. However, he went
on to incorporate this distinction within the standard bias test: the fair-minded observer
would have recognized that the councillors had not gone beyond legitimate predisposition.
Other cases have adopted the same approach. For instance, in R (Georgiou) v. Enfield
London Borough Council [2004] EWHC 779 (Admin) it was held that members of a
planning committee were tainted by apparent bias due to their participation in the work of
another committee which had considered the application in question. Richards J, noting
that predetermination had been alleged in Porter v. Magill itself, said at [31] that
in considering the question of apparent bias in accordance with the test in Porter v Magill, it is
necessary to look beyond pecuniary or personal interests and to consider in addition whether, from
the point of view of the fair-minded and informed observer, there was a real possibility that the
planning committee or some of its members were biased in the sense of approaching the decision
with a closed mind and without impartial consideration of all relevant planning issues.

The same type of approach was adopted in R (Condron) v. National Assembly for Wales
[2006] EWCA Civ 1573 [2007] 2 P & CR 4 and (as Endicott, Administrative Law (Oxford
2009) at 177 notes) by Rix and Longmore JJ in R (Lewis) v. Redcar and Cleveland Borough
Council [2008] EWCA Civ 746 [2009] 1 WLR 83, the latter suggesting at [110] that Sedley
J’s remarks in Kirkstall Valley, understood in context, did not make appearances irrelevant
in predetermination cases. (Pill LJ, in contrast, thought that the fair-minded observer test
should not apply in such cases — he thought the court should decide whether the decision-
makers had closed minds.) Endicott, loc cit, points out that, in Lewis, Rix and Longmore LJJ
emphasized that the Porter test must be ‘applied in a way that is sensitive to the circumstances’,
meaning that ‘it is a very hard test to satisfy when the claimant alleges that.. . party politics
showed a predisposition in favour of a project’.
The dominant view therefore appears to be that if a fair-minded and informed observer
perceives a real risk of predetermination, this should be sufficient to make the decision-maker’s
 THE RULE AGAINST BIAS e 321

involvement unlawful. However, the rule against bias, properly understood, is concerned
with influences upon the decision-making process which are peculiarly toxic, such that they
must not even be permitted to be seen to operate. On that view, is it arguably inappropriate
to treat predetermination as a form of bias which attracts the application of the fair-minded
observer test. A better approach, it is submitted, is to regard cases in which no personal
interest is alleged as falling outside the scope of the rule against bias: the question would
therefore simply be whether the decision-maker had approached the issue with a closed
mind such that he had failed to take account of other relevant considerations.

QUESTION
+ Ifthe rule against bias was, as suggested above (and by Ouseley J in the Camden
casé mentioned earlier), confined to cases involving personal interests, would there
be any scope for its operating in predetermination cases? What if, for instance, a
councillor staked his reputation on doing something: could it be argued that the rule
against bias would be triggered by virtue of the appearance of a personal interest on
the councillor’s part in protecting his reputation by sticking to his original view?

The foregoing must be read in light of the fact that, as is apparent from the excerpts from the
Alconbury case below at 10.5.1 and 10.5.3, the determination of some planning matters is
now (by operation of the Human Rights Act 1998) covered by Article 6 ECHR. When Article
6 applies, further questions arise about the involvement of ‘political’ decision-makers; these
are addressed by Lord Hoffmann in the extract at 10.5.1.

105 Article 6
10.5.1 Introduction: Article 6 in an
administrative context
Issues of procedural fairness now fall for consideration under Article 6 of the European
Convention on Human Rights — which is made effective in domestic law by the HRA — as
well as at common law. This impacts upon both the nature and content ofa fair hearing, which
we consider in the following chapter, and also the need for an independent and impartial
decision-maker, with which we are presently concerned. Article 6(1) of the Convention
provides that:
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 interest 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.

Article 6(1) was originally intended to regulate the conduct only of criminal courts and civil
courts in the determination of private law rights: it was explained in the dissenting opinion in