Director General Of Fair Trading v Proprietary Association Of Great Britain & Ors [2000] EWCA Civ 350 (21 December 2000)

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Director General Of Fair Trading v Proprietary Association Of Great Britain & Ors [2000] EWCA Civ 350 (21 December 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/350.html Cite as: [2000] EWCA Civ 350, [2001] WLR 700, [2001] UKCLR 550, [2001] ICR 564, [2001] 1 WLR 700, [2001] HRLR 17, [2001] UKHRR 429

AND IN THE MATTER OF APPLICATIONS TO DR PENELOPE ROWLATT AS A MEMBER OF THE RESTRICTIVE PRACTICES COURT TO RECUSE HERSELF AND TO THE RESTRICTIVE PRACTICES COURT TO RECUSE ITSELF

1. On the 2^nd October 2000 the Restrictive Practices Court began the trial of a contested application by the Director General of Fair Trading ("the Director General") under the Resale Prices Act 1976 ("the 1976 Act"). The purpose of the application is to discharge an order made by the Court in 1970, by which it exempted branded medicaments and certain related goods from the general statutory ban on resale price maintenance ("RPM"). The Director General contends that this industry-wide restrictive practice in the over-the-counter medicaments industry can no longer be justified, and that it now operates seriously to the injury of the general public for so long as it persists.

2. The case is contested by two trade associations (the Appellants to this appeal) who represent a large number of the manufacturers and retailers of branded over-the-counter medicaments.

3. On 15^th and 16^th November 2000, the Appellants moved the Court on two applications ("the Applications") with the purpose of vacating the trial:

a) That one of the members of the Court, Dr Penelope Rowlatt ("Dr Rowlatt"), recuse herself on the ground of apparent bias;

b) That the whole Court should recuse itself on the ground that they are infected by the apparent bias of Dr Rowlatt.

4. The Court handed down a reasoned Judgment on Friday 17^th November 2000, dismissing the applications.

5. On Tuesday 21^st November 2000 we gave the Appellants leave to appeal, heard the appeal and allowed it in relation to both applications. We now give our reasons for that decision.

6. The Restrictive Practices Court is a superior Court of record and, in consequence, its decisions are not subject to judicial review by the High Court. Section 10 of the 1976 Act provides that an appeal lies from any decision or Order of the Court, in the case of proceedings in England and Wales, to the Court of Appeal. The Section goes on to provide that the appeal lies on a question of law only and the Court's decision on a question of fact is final and that the appeal is by way of case stated.

7. We are satisfied that the question of whether or not members of the Restrictive Practices Court are disqualified from continuing to hear the Director General's application is a question of law. That question falls to be determined on the basis of the facts stated in the case. Rule 62(1) of the Restrictive Practices Court Rules provides that the Judgment of the Court, insofar as facts are stated in it, is deemed to be a case stated for the purpose of any appeal on a question of law to which those facts give rise. The parties have agreed, however, that in addition to the facts set out in the Judgment below we should have regard to the facts placed before the Court in support of the applications in an Affidavit sworn by Christine Bendall, the Solicitor with the conduct of the case on behalf of the Appellants. The statement of facts which follows is based on these agreed sources.

8. The Appellants are the Proprietary Association of Great Britain ("PAGB") and the Proprietary Articles Trade Association ("PATA"). PAGB is an association of manufacturers, importers and suppliers of branded "pharmacy only" and "general sales list" medicines, vitamins and mineral supplements sold over the counter (without the need for a prescription) in the United Kingdom. The majority of PAGB members have established and maintain a system of resale price maintenance in relation to the sale of such branded goods in the United Kingdom. (In this judgment we shall refer to those products as "OTCs" and the manufacturers, importers and suppliers as the "suppliers"). PATA is an association whose members include, as well as 23 members of PAGB, three trade associations whose members comprise 98% of all registered retail pharmacies trading in the United Kingdom, with the significant exception of Boots The Chemist which itself accounts for 25% of sales in the OTC market. PATA's function is to monitor the compliance by retailers with RPM and to report any instance of non-compliance so that the supplier can take action to enforce compliance.

9. RPM is enforced by the insertion into contracts of supply between suppliers and their customers of a term requiring the wholesaler to sell to the retailer, or the retailer to sell to the public, either at prices not less than those stipulated by the supplier or (less often) at the precise prices stipulated by the supplier. Such a term as a matter of contract is enforceable as between the parties to the contract of supply. But the Resale Prices Act 1976 ("the 1976 Act"), as did its predecessor the Resale Prices Act 1964, makes it unlawful in general for suppliers to provide for minimum or fixed prices to be charged on the resale of goods in the United Kingdom. The 1976 Act however makes provision (as did the 1964 Act) for suppliers to apply to the Court for an order exempting goods of any specified category from the general prohibition provided that the conditions laid down in section 14 of the 1976 Act are satisfied.

10. In 1970 on application by PAGB and PATA the Court granted an exemption in respect of OTCs. On the 8th January 1998 the Director General gave notice that he intended to seek the leave of the Court to apply for the discharge of the 1970 Order and accordingly the removal of the exemption. On the 11th March 1999 leave was granted and the Director General thereupon proceeded with the application. The form of the proceedings is the same as if the 1970 Order had not been obtained, and PAGB and PATA must again establish their entitlement to exemption under section 14 of the 1976 Act.

11. The Court was established by the Restrictive Trade Practices Act 1956 and its existence was continued by section 1(1) of the Restrictive Practices Court Act 1976 ("the 1976 Court Act"). The 1976 Act and the 1976 Court Act were both repealed and the Court was abolished by section 1(a) and (b) of the Competition Act 1998 as from the 1st March 2000. But section 74 of that Act (and the transitional provisions in Schedule 13) provided that the abolition did not affect an application to the Court (such as the present) made under the 1976 Act which had not been determined by the 1st March 2000. Section 7(1) of the 1976 Court Act requires that any hearing shall be conducted by a court comprising a presiding judge and at least two other members. Lightman J was the presiding judge and, since the application raised issues of accountancy and economics, Mr James Scott (an accountant) and Dr Rowlatt (an economist) were appointed as the two other members. Section 7(2) of the 1976 Court Act provides that on the hearing of proceedings before the Court, the opinion of the judge upon any question of law shall prevail, but subject to this the decision of the Court shall be taken by all the members sitting or, in the event of a difference of opinion, by the votes of the majority of the members.

12. The interlocutory stages in the proceedings culminated in the trial being fixed to commence on the 2nd October 2000. The documentation put before the Court in this case is quite enormous. A special courtroom had to be adapted for the hearing within the Principal Registry of the Family Division building in High Holborn. The first two and a half weeks of the trial were set aside for pre-reading. This proved a most onerous task. The closely packed bundles of documents number some 170. The Respondents alone had put in lengthy witness statements (often more than one) of some 39 witnesses of fact and even lengthier witness statements (again more than one) of some 19 experts. To add to the task the Respondents contended that a number of the 39 witnesses of fact were also, to some extent, expert witnesses. The Director General submitted statements by 6 witnesses of fact and 5 expert witnesses. The size of the task before the Court was reflected in the fact that the Respondents appear by five Counsel and the Director General by four.

13. Practically all the witnesses of fact required to attend for cross-examination had attended and the Court was proceeding with hearing the expert witnesses. The programme agreed before the Applications changed events was that the expert evidence and outstanding factual evidence would be completed within two weeks. Leaving out of account a Ms Kelly who might be regarded at least in part as a witness of fact, the first and perhaps the most important expert witness to be called on behalf of the Respondents was Professor Lord Peston the distinguished economist who attended on Wednesday the 8^th November and Thursday 9^th November. Shortly before that took place there occurred the events which led to the Applications, which had the effect of bringing the proceedings to a halt on Friday the 10^th November 2000.

14. The world of economic consultancies is a small one. According to the Appellants there are only about half a dozen consultancies in the field (currently 3 well-known firms, NERA, Frontier Economics and Lexecon, and 3 niche practices, Europe Economics, LECG and Charles River Associates), and two firms of accountants who take this area seriously (PWC and Arthur Andersen). Frontier Economics was launched with some publicity in 1999 by a number of economists who left another firm, London Economics. It retains a high profile in the profession.

15. Dr Rowlatt had been employed for some years by NERA before moving to Europe Economics. She is the Treasurer and a member of the Executive Committee of the Royal Economic Society, responsible since 1975 for the formulation and execution of the Society's policy; a former senior adviser in the Department of Energy; and was a member of the Retail Prices Advisory Committee until 1995; and was a member of the Royal Commission on Environmental Pollution and was a director of NERA from 1988 to 1998. One of Dr Rowlatt's specialisms is in financial regulation and she is a member of the Guardian Newspaper panel of `wise women' economists who have commented, for example, for that newspaper on the 1999 Budget.

16. Mr Zoltan Biro, who is a co-founder and Director of Frontier Economics, is a principal expert witness in these proceedings for the Director-General. Professor David Newbery is the other principal expert witness for the Director General, whose report forms a central part of the Director General's case before the Court. His report draws heavily on Mr Biro's own expert report.

17. His report, which represents the work of a number of individuals from Frontier Economics, is concerned with what is probably the most central issue in this case, the impact on small independent community pharmacies if RPM is abolished. It being common ground that some closures would be likely to result, the real issues are the likely number and pattern of closures, and the impact of those closures on the customers who will be affected. The Director General's principal evidence on these two issues (indeed almost the entirety of such evidence) is contained in the work of Mr Biro and Frontier Economics. They have constructed an economic model of the profitability of community pharmacies; and (building on that) have predicted the likely number and pattern of closures if community pharmacies lose OTC business to certain putative levels. They have then carried out a cost-benefit analysis comparing the detriments of predicted pharmacy closures to customers affected with the benefits nationally resulting from (assumed) lower prices and margins on OTC medicaments.

(1) that, using his model of community pharmacy profitability, a relatively small number of community pharmacies would be expected to close, or become "newly at risk" of closure, if RPM on OTC medicaments were to be abolished; and

(2) that, employing his cost benefit analysis, any local detrimental effects of such closures would be outweighed to the benefit to consumers nationally of lower prices.

19. Mr Rowe, Mr Tym and Lord Peston, the economists instructed by the Appellants, all contend that the cost-benefit analysis carried out by Mr Biro/Frontier Economics is methodologically unsound, employs inappropriate techniques and reasoning and draws erroneous conclusions.

20. Professor Newbery's Main Report was an important item in the Reading List for the reading in period of over 2 weeks. That Report referred frequently to Mr Biro and to Frontier Economics.

21. On Tuesday 7^th November 2000 the following document was faxed by the Court to the parties ("the 7^th November fax"):

"The Court has directed that the following personal statement by Dr Penelope Rowlatt be sent to both parties:

`I have worked for some two and a half years for Europe Economics, an economics consultancy. Many months ago I gave consideration to moving to another consultancy because I was unhappy where I was. On Friday the 3rd November 2000 I decided to ring Frontier Economics to ask that firm if they would consider me for a part time post. Although I had known earlier that Mr Zoltan Biro of that firm was an expert witness [on behalf of the DG] in the Medicaments case, I did not recall this fact at the time: if I had, I would not have telephoned. I spoke to the personal assistant to the Managing Director to ask if I could be considered, and she said that she would telephone back. I asked her who were the directors of that company - she mentioned the name of Mr Zoltan Biro. After I had rung off, I realised that this might be of some significance and I decided to inform Mr Justice Lightman at the first opportunity. The first opportunity was this morning and he advised me to send this statement to Counsel for both sides. I have as yet received no reply from Frontier Economics. Mr Justice Lightman also advised me to send (and I have sent) a fax to Frontier Economics in the following terms:'

`In view of the involvement of myself as part of the Court and Mr Biro as an expert witness in the Medicaments case, the application which I made to the personal assistant to the Managing Director cannot be pursued until after the conclusion of the trial.'"

22. The Appellants and their Counsel gave careful consideration to this document and on 10^th November they sent to the Court a fax, signed by Mr Mark Cran, QC, their leading Counsel, which invited Dr Rowlatt to recuse herself from sitting further in the case. The letter set out at length the considerations which were said to justify this request.

23. On Monday the 13th November the Court sent to the parties a further fax ("the 13th November Fax") which read as follows:

"The Court has directed that a further personal statement by Dr Penelope Rowlatt be sent to both parties:

`For the sake of completeness I wish to record two further contacts between Frontier Economics and myself. Soon after the clerk to Mr Justice Lightman sent the fax to Frontier Economics in the terms set out in my previous statement, I received a telephone call from the personal assistant to the Managing Director of Frontier Economics. As soon as she told me who she was, I said that I could not speak to her. She replied that Frontier Economics had come to the same conclusion and the telephone conversation ended at that point. On Thursday evening I received a telephone call from a person saying that he was calling on behalf of Mr Zoltan Biro asking for my address. I gave him my address but I told him to tell Mr Biro that I might feel obliged to disclose any communication to the parties. The following day I received a letter, a copy of which is attached to this statement.

With respect to the letter addressed to the Court by Mr Cran requesting that I should recuse myself, I should like to say the following:

(1) in the current proceedings my mind has been focused on the substance of the statements of the expert witnesses and not on the names of the firms for which they worked. Although the connection of Frontier Economics with the case slipped my mind when I made the original telephone call, the mention of the name of Mr Zoltan Biro by the personal assistant to the Managing Director in the course of our telephone conversation did strike a bell;

(2) as soon as I appreciated that Frontier Economics was instructed by the Respondents in this case, I realised that it would be inappropriate for me to join that firm, and it is now clear that Frontier Economics has no interest in my joining them. To confirm my position, I would be happy to give an undertaking not to join that firm for two years after the final order in these proceedings or indeed for any lengthier period which either party may request. I have no regret in withdrawing the application. If I had had in mind the involvement of Frontier Economics in the case, I would never have made the application in the first place;

(3) I am confident that I retain (as I have retained throughout this whole case) the essential independence of mind required of a member of the Court and (unless persuaded to the contrary by the submissions made by the Respondents on their application to the Court) I do not consider that I ought to recuse myself."

24. The attached letter dated the 10^th November 2000 ("the Frontier Letter") reads as follows:

Following your call to my PA, Victoria Card, we have considered your request to meet to discuss possible working requirements.

Unfortunately, we do not have any vacancies for a person of your experience and are unlikely to do so for the foreseeable future. I must, therefore, decline your request to meet.

"There is no suggestion in this case of actual bias on the part of Dr Rowlatt. The essential issue underlying the Applications is whether the actions of Dr Rowlatt in relation to her application for a job at Frontier Economics ("Frontier") gives rise to a real danger of bias or reasonable apprehension of bias. It is common ground that: (1) the relevant circumstances by reference to which the issue is to be determined are the circumstances as they exist today when the Applications are being determined; (2) (as is now quite clear) Dr Rowlatt today has no prospect of any employment by Frontier, whatever prospect she may have entertained before or after the 7th November Fax; and (3) Mr Biro's evidence is central to the DG's case. As we understand the concerns expressed by Mr Cran on behalf of the Respondents, they are threefold:

(1) that Dr Rowlatt by making the application to Frontier in the course of the proceedings showed a partiality which cannot be removed or undone;

(2) that Dr Rowlatt will feel a sense of resentment against the Respondents for preventing her from obtaining a job with Frontier;

(3) that Dr Rowlatt will feel a sense of gratitude to Frontier for writing the Frontier Letter which "got her off the hook" by publicly bringing to an end any prospect of employment and thereby improving the prospects that the Applications would fail.

Dr Rowlatt gave her provisional view in the fax dated the 13th November 2000 that she ought not to recuse herself. She reconsidered her position after full argument had been addressed to the Court and that remains her final view. In the circumstances the Court must itself decide (in effect if not in form) whether she is wrong, for the Court must independently decide the question whether she should recuse herself as the preliminary to deciding whether the Court should accede to the application that the Court should recuse itself."

26. The Court considered the law relating to bias and formulated the applicable test as being whether the Appellants had `legitimate grounds for fearing a lack of impartiality, however slight the justification.' (Judgment, para. 28)

27. The Court then went on to make findings in respect of a number of factual issues. For present purposes it is only necessary to record the following:

"The Respondents strenuously challenge the credibility of the statement by Dr Rowlatt that at the time she made the telephone call, she did not have in mind that Mr Biro worked for Frontier and that Mr Biro and Frontier were providing expert evidence in the case for the DG. Certainly the papers in the case made this plain to anyone reading them. Dr Rowlatt must have seen this fact when she read the papers. But that does not make it incredible that she did not have it in mind when making the approach to Frontier. Indeed what is surely more incredible is that Dr Rowlatt should have had this in mind at the time of the telephone call, and yet at the first opportunity after the call should have felt impelled to bring this matter to the attention of the Judge and (through the Judge) of the parties and thereby bring upon herself the Applications. Dr Rowlatt says that she did not have in mind the fact of Frontier's engagement in the proceedings when she made the call and we think that this is more credible than that she did have it in mind at the time. We should add that we are far from satisfied that it would make any significant difference if she had known at the time and, being subsequently troubled by this knowledge, took the action which she did to bring her actions to the notice of the Court and the parties. It might raise questions as to her judgment, but would not significantly affect the case made on apparent bias."

28. The Court went on to hold that there was no objective justification for fears of lack of impartiality on the part of Dr Rowlatt. This conclusion was essentially based upon the proposition that, as soon as it became plain that Dr Rowlatt no longer had any chance of obtaining a job with Frontier, the occasion for bias in respect of the job application was removed. The Judgment concluded that the Appellants had sought to bolster their case by putting together a multitude of complaints and causes for concern which were fanciful and insubstantial and that the applications were likewise fanciful and insubstantial. The applications were accordingly dismissed.

29. On the 17^th November, the day of the Judgment of the Court below, an outline argument for the appeal, 39 pages in length, and setting out grounds of appeal, was served. It included the averment that, despite their letter, Frontier had not necessarily closed the door to taking Dr Rowlatt into their employment and that the reasonable onlooker would conclude that Dr Rowlatt might well retain aspirations to work for Frontier in the fullness of time. This contention contrasted with this submission made by Mr Cran to the Court in argument on the second day of the hearing:

"We say also that a reasonable onlooker would be concerned firstly that Dr Rowlatt might have some resentment that her hopes had been frustrated. The reasonable onlooker would doubt the truth of what Frontier Economics has to say in its letter, but would know, nevertheless, that Dr Rowlatt could not, after all that has happened, expect ever to go there. She must know that too and that would be a source of lasting resentment."

30. On the hearing before us Mr Sumption QC appeared as the Appellants' leading Counsel. In a concise skeleton argument, Mr Sumption put at the forefront of his case the following submissions:

"The essential problem in this case is that Dr Rowlatt would like to be employed by Frontier Economics. She says that she has for some time been unhappy in her current employment. Frontier are probably the most prominent and successful firm in the relatively small world of economic consultancy in which she operates.

There is no reason to suppose that the events of the last few days have diminished Dr Rowlatt's desire to join Frontier if she properly can. She initially did no more than suspend her application until after the conclusion of the trial. She gave more extensive undertakings only later and in response to the threat of this application. Although the probability must be that the present dispute has deferred any prospect of her being employed by Frontier for some time, this is wholly conjectural and the future course of her relations with Frontier is frankly impossible to predict, by her or any one else."

31. Before us Mr Sumption contended that the test in law was whether the facts of the case were such as to raise a reasonable apprehension in the mind of the objective onlooker that Dr Rowlatt might be affected by bias, whether conscious or unconscious, when performing her judicial duties. He submitted that the Court below, which included Dr Rowlatt, had erred in seeking itself to evaluate the likelihood that she would be actually biased. Instead the Court should have considered whether the factual situation was one which gave rise to a reasonable apprehension of the possibility of bias.

32. When it was put to Mr Sumption that it had been conceded before the Court below that Dr Rowlatt could plainly have no further hope of being employed by Frontier, Mr Sumption submitted that this was not his case, and that in a matter as important as this, it would be quite wrong for this Court to approach the facts fettered by any concession made in argument below as to their implication.

33. We agree with Mr Sumption that, in a case such as this, it is for the Court to consider the facts and to decide for itself whether having regard to those facts the tribunal or any member of it, is disqualified from continuing to sit. The substantive decision to be made in this case is one in which the public interest is paramount. It would be quite wrong to treat the issue of bias as if it was simply a point of contention in litigation between two parties.

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..."

Since October 2^nd 2000 English Courts have been obliged under the Human Rights Act 1998 to give effect to the right to a fair trial as embodied in Article 6.

35. The requirement that the tribunal should be independent and impartial is one that has long been recognised by English common law. An appellate or reviewing Court will set aside a decision affected by bias. The precise test to be applied when determining whether a decision should be set aside on account of bias has, however, given rise to difficulty, reflected in judicial formulations that have appeared in conflict. The House of Lords in Reg. v Gough [1993] AC 646 attempted to resolve that conflict. In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at 476 this Court observed that the test in Gough had not commanded universal approval outside this jurisdiction and that Scotland and some Commonwealth countries preferred an alternative test which might be `more clearly in harmony with the jurisprudence of the European Court of Human Rights'. Since 2^nd October the English Courts have been required to take that jurisprudence into account. This then is an occasion to review Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence.

36. Judicial tribunals come in many forms. We shall refer to `the Judge' to embrace all forms of judicial tribunal, including juror, lay magistrate and judge of a superior Court. For convenience we shall refer to the Judge as `he' rather than `he or she'.

37. Bias is an attitude of mind which prevents the Judge from making an objective determination of the issues that he has to resolve. A Judge may be biased because he has reason to prefer one outcome of the case to another. He may be biased because he has reason to favour one party rather than another. He may be biased not in favour of one outcome of the dispute but because of a prejudice in favour of or against a particular witness which prevents an impartial assessment of the evidence of that witness. Bias can come in many forms. It may consist of irrational prejudice or it may arise from particular circumstances which, for logical reasons, predispose a Judge towards a particular view of the evidence or issues before him.

38. The decided cases draw a distinction between `actual bias' and `apparent bias'. The phrase `actual bias' has not been used with great precision and has been applied to the situation

(1) where a Judge has been influenced by partiality or prejudice in reaching his decision and

(2) where it has been demonstrated that a Judge is actually prejudiced in favour of or against a party.

`Apparent bias' describes the situation where circumstances exist which give rise to a reasonable apprehension that the Judge may have been, or may be, biased.

39. Findings of actual bias on the part of a Judge are rare. The more usual issue is whether, having regard to all the material circumstances, a case of apparent bias is made out. We do not propose to refer to more than a few of the many cases that were reviewed in Gough and Locabail. We believe that two critical and interrelated questions are raised by the authorities, and we propose to focus on the cases which exemplify those questions. The questions are:

(1) Must the reasonable apprehension of bias be that of the reviewing Court itself, or that which the reviewing Court would attribute to an informed onlooker?

(2) What are the circumstances that fall to be taken into account when applying the test of bias and how are those circumstances to be determined?

40. It has long been held that where a Judge has a pecuniary interest in the outcome of a case, he is automatically disqualified, whether or not that interest gives rise to a reasonable apprehension of bias - see Dimes v Proprietors of Grand Junction Canal (1852) 3 HLCas 759. That principle, and its extension in R. v Bow Street Stipendiary Magistrates ex p. Pinochet Ugarte (No 2) [2000] 1A.C. 119 have been subjected to a powerful critical analysis by Professor Olowofoyeku in `The Nemo Judex Rule: The Case Against Automatic Disqualification', Public Law Autumn 2000 at p.456. We are not concerned with this category of case and do not propose to pick up the gauntlet thrown down in that article.

41. We start our analysis of the authorities with the decision of the Divisional Court in Rex v Sussex Justices, ex p. McCarthy [1924] 1K.B. 256. That decision concerned a prosecution before the lay magistrates for dangerous driving. Unknown to the Defendant and his Solicitors, the Clerk to the Justices was a member of the firm of Solicitors acting in a civil claim against the Defendant arising out of the accident that had given rise to the prosecution. The Clerk retired with the Justices, who returned to convict the Defendant. On learning of the Clerk's provenance, the Defendant applied to have the conviction quashed. The Justices swore affidavits stating that they had reached their decision to convict the Defendant without consulting their Clerk. In giving the leading Judgment Lord Hewart C.J. said at pp.258-9:

"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 in its 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, I 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 I 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, and then, on a conviction being recorded, decided to take the point. On the facts I am satisfied that there has been no waiver of the irregularity, and, that being so, the rule must be made absolute and the conviction quashed."

42. Had Lord Hewart asked the question `was there any likelihood that the Clerk's connection with the case influenced the verdict?' he would have answered in the negative on the basis that he accepted the evidence that the Clerk had not intervened in the Justices' discussion. Had he asked the question `would a reasonable onlooker aware of all the material facts, including the fact that the Clerk did not speak to the Justices after retiring, have concluded that the Clerk's connection with the case might have influenced the verdict?' he would equally have answered in the negative. His decision was reached on the premise that what actually transpired between the Clerk and the Justices behind closed doors was not relevant. The fact that the Clerk had retired with the Justices gave an appearance of the possibility of injustice, and that was enough to lead to the quashing of the verdict.

43. Lord Hewart's decision apparently led to a number of cases in which verdicts were quashed on the ground that the circumstances gave rise to a suspicion of bias, even where the suspicion was fanciful. In Reg. v. Camborne Justices and another ex p. Pearce [1955] 1 Q.B. 41 the cases were reviewed in a reserved judgment of the Divisional Court, presided over by Lord Goddard C.J. That case also involved an allegation of bias on the part of a Justices' Clerk. The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor member of the Council, but he did not serve on the Health Committee. The Court found on the evidence before it that the Clerk was summoned by the Justices to advise on a point of law: that he did not discuss the facts of the case with them at all during the short time that he was with them; and that the justices returned and gave their decision some appreciable time after the Clerk had returned to court.

44. The Court had the assistance of the Solicitor General, Sir Reginald Manningham-Buller, QC as `amicus'. He submitted that the correct test was whether or not there was a `real likelihood' of bias, that is `something to which a person in possession of such facts as are readily available to him would take exception to'. This submission was reflected in the Judgment of the Court, which reviewed the authorities, and concluded at p.51:

"In the judgment of this Court the right test is that prescribed by Blackburn J. [in Reg. v Rand (1866) LR 1 QB 230], namely, that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding, a real likelihood of bias must be shown. This court is further of opinion that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries."

45. The Court held that on the full facts of the case, most of which would have been available to the applicant, there was no real likelihood of bias. It added this observation:

"The frequency with which allegations of bias have come before the courts in recent times seems to indicate that Lord Hewart's reminder in the Sussex Justices case that it `is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done' is being urged as a warrant for quashing convictions or invalidating orders upon quite unsubstantial grounds and, indeed, in some cases upon the flimsiest pretexts of bias. Whilst indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done."

It is noteworthy that leading Counsel for the applicant did not contend that the Clerk had improperly influenced the Bench, but relied upon the contention that the circumstances gave rise to a reasonable apprehension of bias.

46. Over the next four decades it was possible 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?

47. It seems to us 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 was precisely the position in Gough, at least on the approach of the Court of Appeal.

48. In Gough the issue was whether a guilty verdict was unsafe by reason of apparent bias on the part of a juror. The juror had, for two years, lived next door to the brother of the defendant. This was of particular significance as the defendant was charged with conspiracy with that brother to commit burglaries. After the guilty verdict had been entered, the brother started shouting in court. The juror then informed the Judge of the fact that she lived next door to the brother. A photograph of the brother had been placed before the jury in the course of the trial, and his address had been read out. The juror, however, subsequently stated on affidavit that she had only become aware that her next door neighbour was the defendant's brother after the verdict had been delivered.

49. On appeal Counsel for the appellant accepted that the juror was telling the truth when she stated that she only became aware after the verdict that she lived next door to the brother. At the same time, however, he submitted that this claim of ignorance would not be acceptable to a fair-minded observer. While accepting that there was no actual danger that the verdict had been affected by bias, Counsel submitted that the verdict could not stand because an objective observer would have a reasonable suspicion that a fair trial was not possible.

50. The Court of Appeal accepted that, if the correct test was the impression that would be made on a fair-minded observer, it would not be right to include in the material facts known to the observer the fact that the juror was unaware that she lived next to the defendant's brother [1993] AC at 652:

"Mr Hytner submits, applying that test, that the fair-minded observer would suspect in the present case that a fair trial was not possible. In this case Mrs Smith in her affidavit evidence has stated that she was unaware of the relevant facts connecting her to the appellant until after the jury had delivered its verdict. This evidence was unchallenged. Accordingly this can be distinguished from the various authorities which have been cited to us in that in these latter cases the relevant `connecting' facts giving rise to the alleged bias have already been known to the particular member of the tribunal, against whom bias has been raised, throughout the trial in question. This did not apply in the present case. If the fact that Mrs Smith was not aware of the relevant facts connecting her to the appellant had been known to the fair-minded observer, then surely the observer would, in those circumstances, have regarded the trial as having been a fair one. Should we impute knowledge of Mrs Smith's particular state of mind to the fair-minded observer? Mr Hytner submits that such an observer would be bound to conclude that Mrs Smith must have realised who the case concerned when she heard the address referred to in the statement and also when she saw David Gough's photograph. Her claim of ignorance would be unacceptable to a fair-minded observer. We think there is force in this contention. Accordingly we do not seek to distinguish the instant case by imputing to the fair-minded observer actual knowledge of Mrs Smith's unawareness of the relevant facts until after the verdict had been delivered."

51. The Court held, however, that the authorities showed that, at least in the case of jury trials, the `real danger' of bias rather than the `reasonable suspicion' of bias was the correct test. On that basis it was common ground that the appeal could not succeed.

52. In the House of Lords the appeal proceeded on the basis that there was no likelihood, or even possibility, that the verdict had in fact been affected by bias. The issue was whether the Court of Appeal had been correct to apply the test of `real danger' rather than the test of whether the objective onlooker would have a reasonable apprehension or suspicion of bias.

53. Lord Goff gave the leading speech. At the outset he explained the difficulty confronting the Court when bias was alleged (pp.659-60):

" A layman might well wonder why the function of a court in cases such as these should not simply be to conduct an inquiry into the question whether the tribunal was in fact biased. After all it is alleged that, for example, a justice or a juryman was biased, i.e. that he was motivated by a desire unfairly to favour one side or to disfavour the other. Why does the court not simply decide whether that was in fact the case? The answer, as always, is that it is more complicated than that. First of all, there are difficulties about exploring the actual state of mind of a justice or juryman. In the case of both, such an inquiry has been thought to be undesirable: and in the case of the juryman in particular, there has long been an inhibition against, so to speak, entering the jury room and finding out what any particular juryman actually thought at the time of decision. But there is also the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias - a point stressed by Devlin L.J. in Reg. v. Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 Q.B. 167, 187. In any event, there is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart C.J. in Rex v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259, that it is `of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done'. I shall return to that case in a moment, for one of my tasks is to place the actual decision in that case in its proper context. At all events, the approach of the law has been (save on the very rare occasion where actual bias is proved) to look at the relevant circumstances and to consider whether there is such a degree of possibility of bias that the decision in question should not be allowed to stand."

54. Later in his speech Lord Goff considered the decisions both in the Sussex Justices case and the Camborne Justices case, concluding that the test in the latter was to be preferred. He went on, in the course of reviewing the authorities, to quote with approval the approach commended by Devlin L.J. in Reg. v Barnsley Licensing Justices, ex p. Barnsley and District Licensed Victuallers' Association [1960] 2 Q.B. 167, 187:

"We have not to inquire what impression might be left on the minds of the present applicants or on the minds of the public generally. We have to satisfy ourselves that there was a real likelihood of bias - not merely satisfy ourselves that that was the sort of impression that might reasonably get abroad. The term `real likelihood of bias' is not used, in my opinion, to import the principle in Rex v. Sussex Justices to which Salmon J. referred. It is used to show that it is not necessary that actual bias should be proved. It is unnecessary, and, indeed, might be most undesirable, to investigate the state of mind of each individual justice. `Real likelihood' depends on the impression which the court gets from the circumstances in which the justices were sitting. Do they give rise to a real likelihood that the justices might be biased? The court might come to the conclusion that there was such a likelihood, without impugning the affidavit of a justice that he was not in fact biased. Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so. The matter must be determined upon the probabilities to be inferred from the circumstances in which the justices sit."

55. Lord Goff went on (at p.666) to observe the apparent dissent of Lord Denning M.R. from Devlin L.J's approach:

"....in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part then he should not sit....

There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: `The judge was biased'."

56. Lord Goff concluded that the difference between the two approaches was more apparent than real (p.667):

"....both considered that it was not necessary that actual bias should be proved, the court having therefore to proceed upon an impression derived from the circumstances: and that the question is whether such an impression reveals a real likelihood of bias. The only difference between them seems to have been that, whereas Devlin L.J. spoke of the impression which the court gets from the circumstances, Lord Denning M.R. looked at the circumstances from the point of view of a reasonable man, stating that there must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, was biased. Since, however, the court investigates the actual circumstances, knowledge of such circumstances as are found by the court must be imputed to the reasonable man; and in the result it is difficult to see what difference there is between the impression derived by a reasonable man to whom such knowledge has been imputed, and the impression derived by the court, here personifying the reasonable man. It is true that Lord Denning M.R. expressed the test as being whether a reasonable man would think it `likely or probable' that the justice or chairman was biased. If it is a correct reading of his judgment (and it is by no means clear on the point) that it is necessary to establish bias on a balance of probabilities, I for my part would regard him as having laid down too rigorous a test. In my opinion, if, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose. Finally there is, so far as I can see, no practical distinction between the test as I have stated it, and a test which requires a real danger of bias, as stated in Reg. v. Spencer [1987] AC 128. In this way, therefore, it may be possible to achieve a reconciliation between the test to be applied in cases concerned with justices and other members of inferior tribunals, and cases concerned with jurors."

57. At the end of his speech Lord Goff summarised his understanding of the law as follows:

"In conclusion, I wish to express my understanding of the law as follows. I 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 I 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, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; 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, I prefer to state 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 a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him; though, in a case concerned with bias on the part of a justices' clerk, the court should go on to consider whether the clerk has been invited to give the justices advice and, if so, whether it should infer that there was a real danger of the clerk's bias having infected the views of the justices adversely to the applicant."

58. In a concurring speech, Lord Woolf summarised his view of the law in the following passage (pp.672-3):

"It must be remembered that except in the rare case where actual bias is alleged, the court is not concerned to investigate whether or not bias has been established. Whether it is a judge, a member of the jury, justices or their clerk, who is alleged to be biased, the courts do not regard it as being desirable or useful to inquire into the individual's state of mind. It is not desirable because of the confidential nature of the judicial decision making process. It is not useful because the courts have long recognised that bias operates in such an insidious manner that the person alleged to be biased may be quite unconscious of its effect.

It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but seen to be done applies. When considering whether there is a real danger of injustice, the court gives effect to the maxim, but does so by examining all the material available and giving its conclusion on that material. If the court having done so is satisfied there is no danger of the alleged bias having created injustice, then the application to quash the decision should be dismissed. This, therefore, should have been the result in the Sussex Justices case if Lord Hewart C.J's remarks are to be taken at face value and are to be treated as a finding, and not merely an assumption, that there was no danger of the justices' decision being contaminated by the possible bias of the clerk."

59. It appears to us that the House of Lords in Gough laid down the following approach to be adopted by a Court reviewing whether a decision of an inferior tribunal should be set aside on the ground of bias:

(1) The reviewing Court should first identify all the circumstances that are relevant to the issue of bias.

(2) The reviewing Court should not then consider the effect that those circumstances would have upon a reasonable observer; rather

(3) The reviewing Court should itself decide whether, in the light of the relevant circumstances, there was a real danger that the inferior tribunal was biased.

60. The House of Lords indicated that, had this approach been adopted in the Sussex Justices case, the decision of the Justices should have been upheld. The Divisional Court should have found as a fact that the Clerk had not intervened in the discussion of the Justices and, in the light of that finding, should have ruled that there was no danger that the Justices' decision had been affected by bias. In Gough itself, it was common ground that the juror was telling the truth when she said that she had not been aware, until after the verdict, that her next door neighbour was the brother of the defendant. Hence, applying the `real danger' test, the validity of the verdict was not in doubt. The House of Lords did not have to consider the question of how the reviewing Court should approach evidence given by the inferior tribunal where that evidence was challenged by the application for review.

61. In R v. Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 at p.162 this Court applied the test in Gough, when holding that injudicious remarks made by a Coroner gave rise to a real possibility that the Coroner had unconsciously allowed his decision to be influenced by a feeling of hostility towards the applicant and other members of an action group, with the result that his decision to refuse to continue an inquest should be quashed. In the leading judgment Simon Brown L.J. set out at p.151-2 the following propositions which he derived from Gough:

(1) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts.

(2) It necessarily follows that the factual position may appear quite differently as between the time when the challenge is launched and the time when it comes to be decided by the court. What may appear at the leave stage to be a strong case of justice `not manifestly and undoubtedly being seen to be done', may, following the court's investigation, nevertheless fail. Or, of course, although perhaps less probably, the case may have become stronger.

(4) The question upon which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By `real' is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak of a real risk or a real possibility.

(5) Injustice will have occurred as a result of bias `if the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him'. I take `unfairly regarded with disfavour' to mean `was pre-disposed or prejudiced against one party's case for reasons unconnected with the merits of the issue'.

(6) A decision-maker may have unfairly regarded with disfavour one party's case either consciously or unconsciously. Where, as here, the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision-maker was unconsciously biased.

(7) It will be seen, therefore, 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."

62. Sir Thomas Bingham, MR, remarked at p.162 that the effect of the decision in Gough was that:

"The famous aphorism of Lord Hewart C.J. in R v Sussex Justices, ex p. McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234 that `justice.... should manifestly and undoubtedly be seen to be done' is no longer, it seems, good law, save of course in the case where the appearance of bias is such as to show a real danger of bias."

63. The decision in Gough received critical analysis by the High Court of Australia in Webb v The Queen (1994) 181 C.L.R. 41. In the leading judgment, Mason C.J. and McHugh J. commented at pp.50-52:

"In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done. Of the various tests used to determine an allegation of bias, the reasonable apprehension test of bias is by far the most appropriate for protecting the appearance of impartiality. The test of `reasonable likelihood' or `real danger' of bias tends to emphasise the court's view of the facts. In that context, the trial judge's acceptance of explanations becomes of primary importance. Those two tests tend to place inadequate emphasis on the public perception of the irregular incident.

We do not think that it is possible to reconcile the decision in Gough with the decisions of this Court. In Gough, the House of Lords specifically rejected the reasonable suspicion test and the cases and judgments which had applied it in favour of a modified version of the reasonable likelihood test. In Watson, faced with the same conflict in the cases between the two tests, this Court preferred the reasonable suspicion or apprehension test. That test has been applied in this Court on no less than eight subsequent occasions. In the light of the decisions of this Court which hold that the reasonable apprehension or suspicion test is the correct test for determining a case of alleged bias against a judge, it is not possible to use the `real danger' test as the general test for bias without rejecting the authority of those decisions.

Moreover, nothing in the two speeches in the House of Lords in Gough contains any new insight that makes us think that we should re-examine a principle and a line of cases to which this Court has consistently adhered for the last eighteen years. On the contrary, there is a strong reason why we should continue to prefer the reasoning in our own cases to that of the House of Lords. In Gough, the House of Lords rejected the need to take account of the public perception of an incident which raises an issue of bias except in the case of a pecuniary interest. Behind this reasoning is 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. References to the reasonable apprehension of the `lay observer', the `fair-minded observer', the `fair-minded, informed lay observer', `fair-minded people', the `reasonable or fair-minded observer', the `parties or the public', and the `reasonable person' abound in the decisions of this Court and other courts in this country. They indicate that it is the court's view of the public's view, not the court's own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J. pointed out in Vakauta (1989) 167 C.L.R. at p.585 in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge's opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge's findings."

64. These comments presuppose that the `real danger' test may lead the Court to reach a conclusion as to the likelihood of bias which does not reflect the view that the informed observer would form on the same facts - and this because the viewpoint of the Judge may not be the same as that of members of the public. This objection was addressed by this Court in Locabail at p.477:

"In the overwhelming majority of cases we judge that application of the two tests would anyway lead to the same outcome. Provided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well informed member of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done."

65. We do not find it easy to reconcile this passage with an approach that requires the Court to decide whether there was in fact a real danger that a particular Judge was biased. 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 likelihood of bias is being applied.

66. A similar conclusion flows from a subsequent passage in the Judgment in Locabail, at p.477:

"While a reviewing court may receive a written statement from any judge, lay justice or juror specifying what he or she knew at any relevant time, the court is not necessarily bound to accept such statement at its face value. Much will depend on the nature of the fact of which ignorance is asserted, the course of the statement, the effect of any corroborative or contradictory statement, the inherent probabilities and all the circumstances of the case in question. Often the court will have no hesitation in accepting the reliability of such a statement; occasionally, if rarely, it may doubt the reliability of the statement; sometimes, although inclined to accept the statement, it may recognise the possibility of doubt and the likelihood of public scepticism. All will turn on the facts of the particular case. There can, however, be no question of cross-examining or seeking disclosure from the judge. Nor will the reviewing court pay attention to any statement by the judge concerning the impact of any knowledge on his mind or his decision: the insidious nature of bias makes such a statement of little value, and it is for the reviewing court and not the judge whose impartiality is challenged to assess the risk that some illegitimate extraneous consideration may have influenced the decision."

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 likelihood 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.

68. Such a situation highlights a wider consideration. Jurors are warned by the Judge to put all extraneous considerations and prejudices from their minds and to try the case on the evidence, and are normally expected to achieve this. A professional Judge is adept, by training and experience, at reaching decisions by objective appraisal of the facts. A finding that in a particular case there is a real danger that a particular Judge was biased inevitably carries with it a slur on the Judge in question, albeit that the reviewing Court may take pains to emphasise that the bias may have been unconscious. As Deane J. put it in Webb at p.71:

"One advantage of the test of reasonable apprehension on the part of a fair-minded and informed observer is that it makes plain that an appellate court is not making an adverse finding on the question whether it is possible or likely that the particular judge or juror was in fact affected by disqualifying bias. In contrast, the real danger test is focused upon that very question. Regardless of an appellate court's care to make plain that its finding is only one of possibility of danger, such a finding is likely to be unfairly damaging to the reputation of the person concerned who will commonly not have been a party to the proceedings before the appellate court and whose subjective thought processes will not have been investigated in the appellate court."

69. The problem with the `real danger' test is particularly acute where a Judge is invited to recuse himself. In such a situation it is invidious to expect a Judge to rule on the danger that he may actually be influenced by partiality. The test of whether the objective onlooker might have a reasonable apprehension of bias is manifestly more satisfactory in such circumstances.

70. Mr Sumption submitted that the test in Gough was no different in reality from the `reasonable apprehension of bias' test favoured in Scotland and most other common law jurisdictions. He added that if it was different, it had to be discarded in favour of the reasonable apprehension test in the light of the Human Rights Act as this was unequivocally the test applied by the Strasbourg Court. This submission received support from Mr Philipson, QC, for the Director-General. We turn to consider the Strasbourg jurisprudence.

71. We start, 30 years ago, with Delcourt v. Belgium (1970) 1 EHRR 355. The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention because a member of the Procureur général's department, which was attached to the Cour de Cassation, had retired with the Court to consider the result of the appeal.

72. Under the European system of criminal justice the Procureur général's department plays an active role in prosecuting criminal offences. This was true of the lower courts in Belgium. The Strasbourg Court held that this might also appear to be the case to litigants in the Cour de Cassation. It commented:

"And one may imagine that such litigants can have a feeling of inequality if, after hearing a member of the Procureur général's department at the Court of Cassation make, in open court, final submissions unfavourable to their pleas, they see him withdraw with the judges to attend the deliberations held in the privacy of chambers."

73. The Strasbourg Court held, however, that it had to `make a careful examination of the real position and functions of the Procureur général's department attached to the Cour de Cassation' - p.368. This disclosed that, unusually, the Procureur général's department did not adopt an adversarial role at that court, but performed a neutral advisory function which might lead it to intervene in favour of an appellant as readily as against him. The Strasbourg Court noted that the applicant's concerns were understandable, but commented:

"The preceding considerations are of a certain importance which must not be underestimated. If one refers to the dictum `justice must not only be done; it must also be seen to be done', these considerations may allow doubts to arise about the satisfactory nature of the system in dispute. They do not, however, amount to proof of a violation of the right to a fair hearing. Looking behind appearances, the Court does not find the realities of the situation to be in any way in conflict with this right."

74. This decision shows the Strasbourg Court concerned to look at the reality behind a situation that might give to the litigant an appearance of injustice and supports the approach of the English Court in reviewing the risk of bias having regard to material circumstances that may not be apparent to those observing the trial. It does not go so far, however, as to formulate a test of real danger that the tribunal under review was actually biased.

75. In 1982 Belgium again provided the Strasbourg Court with the occasion to consider the law of bias. In Piersack v Belgium (1982) 5 E.H.R.R. 169 an applicant convicted of murder complained that his right to a fair trial under Article 6(1) had been denied because the trial court had been presided over by a Judge who, when senior deputy procureur, had been in charge of the department which decided to prosecute the applicant. The approach of the Strasbourg Court appears from the following passage of the Judgment:

"Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6(1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect.

(a) As regards the first approach, the Court notes that the applicant is pleased to pay tribute to Mr Van de Walle's personal impartiality; it does not itself have any cause for doubt on this score and indeed personal impartiality is to be presumed until there is proof to the contrary.

However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance. As the Belgian Court of Cassation observed in its judgment of 21 February 1979, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.

(b) It would be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor's department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves. So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the public prosecutor's department, would erect a virtually impenetrable barrier between that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor's department is not a reason for fearing that he lacks impartiality: the Court concurs with the Government on this point.

(c) The Belgian Court of Cassation, which took Article 6(1) into consideration of its own motion, adopted in this case a criterion based on the functions exercised, namely whether the Judge had previously intervened in the case in or on the occasion of the exercise of.... functions as a judicial officer in the public prosecutor's department. It dismissed Mr Piersack's appeal on points of law because the documents before it did not, in its view, show that there had been any such intervention on the part of Mr Van de Walle in the capacity of senior deputy to the Brussels procureur du Roi, even in some form other than the adoption of a personal standpoint or the taking of a specific step in the process of prosecution or investigation.

(d) Even when clarified in the manner just mentioned, a criterion of this kind does not fully meet the requirements of Article 6(1). In order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. If an individual after holding in the public prosecutor's department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality."

76. On examination of the facts the Court found that the procureur in question had presided over the section of the public prosecutor's department responsible for the prosecution of the applicant and had personally played some part in the prosecution process. In these circumstances the Court held that it was not necessary to gauge the precise extent of the role played by the procureur. It was sufficient to find that the impartiality of the tribunal was capable of appearing open to doubt. Article 6(1) had been violated.

(1) The Court was at pains to emphasise that its decision did not throw doubt on the procureur's personal impartiality.

(2) The Court carried out a detailed examination of the general circumstances of the procureur's involvement with the prosecution, but drew the line at an investigation of the precise extent of his involvement.

(3) The Court held that Article 6(1) was violated because the material circumstances identified by it gave rise to the appearance that the tribunal might have been biased.

78. The Strasbourg Court followed a similar approach in De Cubber v. Belgium (1984) 7 E.H.R.R. 236. There the applicant complained that one of the Judges of the Court which had convicted him of forgery had previously acted as the investigating Judge in his case. In that case allegations had been made that the Judge in question was actually biased against the applicant. The Court held:

"...the personal impartiality of a judge is to be presumed until there is proof to the contrary, and in the present case no such proof is to be found in the evidence adduced before the Court. In particular, there is nothing to indicate that in previous cases Mr Pilate had displayed any hostility or ill-will towards Mr De Cubber or that he had `finally arranged' for reasons extraneous to the normal rules governing the allocation of cases, to have assigned to him each of the three preliminary investigations opened in respect of the applicant in 1977.

However, it is not possible for the Court to confine itself to a purely subjective test; account must also be taken of considerations relating to the functions exercised and to internal organisation (the objective approach). In this regard, even appearances may be important; in the words of the English maxim quoted in, for example, the Delcourt judgment of 17 January 1970, `justice must not only be done; it must also be seen to be done'. As the Belgian Court of Cassation has observed, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused."

79. The Court repeated this test in Hauschildt v. Denmark (1989) 12 EHRR 266 at p.279, adding this comment:

"in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether the test can be held objectively justified."

80. In Borgers v Belgium (1993) 15 EHRR 92 the Court reconsidered the nature of the involvement of the Procureur général's department in decisions taken by the Belgian Cour de Cassation. The Court sitting in plenary session reached, by a majority, a decision which effectively reversed Delcourt. In doing so the majority observed that the rights of the defence and the principle of equality of arms had:

"undergone a considerable evaluation in the Court's case-law, notably in respect of the importance attached to appearances and to the increased sensitivity of the public to the fair administration of justice."

81. The Court did not, however, refine the principles set out in Delcourt. Rather it re-analysed the facts and concluded that the prosecution was unfair in circumstances where the advocate general intervened at the hearing in a manner adverse to an appellant. This was because an appellant had no right of reply and might reasonably think, when the advocate general retired with the Court, that he would further urge that the appeal should be dismissed.

82. In Gregory v United Kingdom (1997) 25 E.H.R.R. 577 the Court recognised that it was possible for risk of prejudice on the part of a jury to be effectively neutralised by an appropriate direction from the judge. The Court commented at p.595 that the legal principles applied in England corresponded closely to its own case law on the objective requirements of impartiality.

83. We would summarise the principles to be derived from this line of cases as follows:

(1) If a Judge is shown to have been influenced by actual bias, his decision must be set aside.

(2) Where actual bias has not been established the personal impartiality of the Judge is to be presumed.

(3) The Court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the Judge might not have been impartial. If they do the decision of the Judge must be set aside.

(4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the Court.

(5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice

84. This approach comes close to that in Gough. The difference is that when the Strasbourg Court considers whether the material circumstances give rise to a reasonable apprehension of bias, it makes it plain that it is applying an objective test to the circumstances, not passing judgment on the likelihood that the particular tribunal under review was in fact biased.

85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in 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.

86. The material circumstances will include any explanation given by the Judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The Court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced. Thus in Gough, had the truth of the juror's explanation not been accepted by the defendant, the Court of Appeal would correctly have approached the question of bias on the premise that the fair-minded onlooker would not necessarily find the juror's explanation credible.

87. We have set out the material circumstances in the first 24 paragraphs of this Judgment. In her affidavit sworn on behalf of the appellants Christine Bendall suggested that not all the statements that formed part of those circumstances could be taken at their face value.

88. Ms Bendall stated that her clients did not accept that the Frontier letter of 10^th November 2000 was truthful when it stated that Frontier were unlikely to have any vacancies for a person of Dr Rowlatt's experience in the foreseeable future. They believed that this letter was a contrivance devised by Frontier `designed to bolster the proposition that Dr Rowlatt had no reason to resent the Respondents for having frustrated her desired employment with Frontier'.

89. In her affidavit Mrs Bendall suggested that there was a number of matters which indicated that the Frontier letter could not be taken at its face value. These included:

(i) Dr Rowlatt's first personal statement indicated only that she had made an inquiry of a personal assistant, and had made no mention of a request for a meeting and

* Why was the letter addressed `Dear Penelope' when, on the facts disclosed by the two personal statements, Dr Rowlatt and Mr Gaysford had never met, nor did they speak on the telephone?

* On what basis did Mr Gaysford say that Frontier was unlikely to have vacancies for a person of Dr Rowlatt's experience when

(i) Dr Rowlatt's first statement did not suggest that information about her professional experience was communicated to Frontier in any detail.

(iii) Frontier is a rapidly expanding consultancy that according to its website has vacancies at most levels of seniority and is recruiting for people with qualifications such as those of Dr Rowlatt?

90. We do not believe that the matters referred to by Ms Bendall would lead the fair-minded observer to ascribe to Frontier the convoluted motive for writing their letter that she suggests. We do consider, however, that the observer might well conclude that the letter was a reaction to embarrassment felt by Frontier at Dr Rowlatt's application rather than a reflection of the fact that her qualifications were not ones for which Frontier were likely to have a need in the foreseeable future.

91. Ms Bendall also stated that her clients had difficulty in accepting Dr Rowlatt's statement that, when she applied for a position with Frontier, she did not recall that Mr Zoltan Biro of that firm was an expert witness in the case. She pointed out that Professor Newbery's Main Report for the Director-General, which was prominent in both parties' reading lists for the reading-in period before the hearing began, contained abundant reference to Frontier, sometimes in conjunction with Mr Biro's name. The Report drew extensively on Frontier's work and, so Ms Bendall contended, Dr Rowlatt as the economist member of the Court, might have been expected to have given particular attention to it. Frontier has a high profile and Ms Bendall commented that it was not understood how a professional economist sitting in the Court could have failed to recall the name of this one of the two firms in her own field (out of a possible field of only about 8) engaged by the parties to the litigation.

92. The Court below, of which Dr Rowlatt was a member, found itself in the unenviable position of having to address this challenge to Dr Rowlatt's credibility. It did so on an objective basis, concluding that it was more credible that she did not have Frontier's position in mind when she applied for a post with them, rather than that she had it in mind and, having made her application to them then felt impelled to bring the matter to the attention of the Judge.

93. We do not think that it was appropriate that the Court below should have set out to answer the question of whether or not Dr Rowlatt's statement was truthful. The Court should have considered what impression her conduct, including her explanation for it, would have had on a fair-minded observer.

94. We do not consider that the reasoning of the Court would have left the fair-minded observer confident that Dr Rowlatt had forgotten Frontier's role as experts in the case when she applied for a post with them. It is, indeed, hard to credit that, had she had this fact in mind she would have made the application, only to appreciate no sooner had she done so that it was inappropriate. But it is equally hard to credit, for the reasons given by Ms Bendall, that Dr Rowlatt could have lost sight of the fact that Frontier were providing critical expert evidence in the case. Thus any concerns that Dr Rowlatt's initial application would have raised in the mind of the observer would have been augmented rather than allayed by the fact that she proffered an explanation which it was not easy to accept.

95. What concerns would the remarkable facts that we have set out above raise in the mind of a fair-minded observer? The Restrictive Practices Court is, in this case, going to have to resolve a fundamental conflict of economic analysis between rival economic consultants. Ms Bendall stated that her clients considered that Dr Rowlatt had, by making her application for employment to one of these consultants, indicated a partiality to them which could not be undone. We consider that the fair-minded observer would be concerned that, if Dr Rowlatt esteemed Frontier sufficiently to wish to be employed by them, she might consciously or unconsciously be inclined to consider them a more reliable source of expert opinion than their rivals.

96. Mr Sumption advanced a more basic contention - that an objective bystander would conclude that Dr Rowlatt might still harbour hopes that, sooner or later, she might find employment with Frontier and that this might induce in her, whether consciously or unconsciously, a reluctance to reject as unsound evidence advanced by Frontier's experts.

97. We agree with Mr Sumption that the fair-minded observer would not be convinced that all prospects of Dr Rowlatt working for Frontier at some time in the future had been destroyed, nor that she might not still hope, in due course, to work for Frontier. He would not be reassured by the fact that initially, albeit on the advice of the Judge, she wrote to Frontier asking that her application should not be pursued until `after the conclusion of the trial' and that she later offered an undertaking not to join Frontier `for two years after the final Order in these proceedings or indeed for any lengthier period which either party may request.' The observer's concern at the possibility that Dr Rowlatt's wish to work for Frontier demonstrated partiality would be augmented by a concern that she might still have hopes of doing so.

98. It is for these reasons that we concluded that a fair-minded observer would apprehend that there was a real danger that Dr Rowlatt would be unable to make an objective and impartial appraisal of the expert evidence placed before the Court by Frontier and that, on objection being taken, she should have recused herself.

99. Having reached this decision, we then had to consider the position of the other two members of the Court. The trial had reached an advanced stage by the time that it was interrupted by the Appellants' application. Dr Rowlatt must have discussed the economic issues with the other members of the Court. We concluded that it was inevitable that the decision that Dr Rowlatt should be disqualified carried with it the consequence that the other two members of the Court should stand down.

100. We reached our decision with great regret. Its consequence is that an immense amount of industry will have gone for nothing, and very substantial costs will be thrown away. But Mr Philipson for the Director General made it plain that he did not advance the argument that these considerations ought to influence our decision.

101. While we were preparing this Judgment it came to the attention of the Master of the Rolls that Dr Rowlatt was known to him, although only by sight, because she is a near neighbour. While that is not a fact which could cast doubt on the objectivity with which we have addressed the issues in this case, it is right that it should be recorded.

	DIRECTOR GENERAL OF FAIR TRADING	Respondent in appeal/Applicant
	- and -
	(1) THE PROPRIETARY ASSOCIATION OF GREAT BRITAIN (2) THE PROPRIETARY ARTICLES TRADE ASSOCIATION	Appellants in appeal/Respondents

England and Wales Court of Appeal (Civil Division) Decisions