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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Helow v Advocate General for Scotland & Anor [2007] ScotCS CSIH_5 (16 January 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_5.html Cite as: 2007 GWD 2-17, [2007] ScotCS CSIH_5, 2007 SCLR 219, 2007 SC 303, 2007 SLT 201, [2007] CSIH 5 |
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EXTRA
DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Nimmo Smith
Lord Kingarth
Lord Kirkwood
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[2007] CSIH 5
P2135/05 OPINION OF THE COURT delivered by LORD NIMMO SMITH in PETITION of FATIMA HELOW Petitioner; to the nobile
officium of the Court of Session and ANSWERS for (1) THE
ADVOCATE GENERAL FOR SCOTLAND and (2) THE LORD ADVOCATE Respondents: _______ |
Act: O'Neill, Q.C., Blair; Drummond Miller (Petitioner)
Alt:
Introduction
"the power of the Court of Session to
create and exercise a remedy or grant relief in circumstances in which there is
no statutory or common law provision which provides such a remedy or relief,
but where the remedy or relief is obviously necessary and not contrary to the
existing law":
Stair Memorial Encyclopaedia, volume 4, paragraph 4, s.v. "Civil
Jurisdiction". As Lord Hope of Craighead
said in Davidson v Scottish Ministers (No. 2) 2005 SC (HL) 7 at paragraph [64]:
"The general rule is that the power
may be exercised in exceptional or unforeseen circumstances to provide a remedy
which will prevent the oppression and injustice which would otherwise result
from the lack of any other remedy."
The judicial oath
[3] The judge
was, on
"You swear that you will well and
truly serve Her Majesty Queen Elizabeth in the office of Senator of the
The statutory provisions
"82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person
he
may appeal to an adjudicator.
(2) In this Part 'immigration decision' means-
...
(h) a
decision that an illegal entrant is to be removed from the United
Kingdom by way of directions under
paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal)...
84 Grounds of appeal
(1) An
appeal under section 82(1) against an immigration decision must be brought on
one or more of the following grounds-
...
(c) that
the decision is unlawful under section 6 of the Human Rights
Act 1998 (c. 42) (public authority not to act contrary to
Human Rights Convention) as being incompatible with the appellant's Convention
rights;
...
(g) that
removal of the appellant from the
consequence of the immigration
decision would breach the
101 Appeal to
Tribunal
(1) A
party to an appeal to an adjudicator under section 82 ... may, with the
permission of the Immigration Appeal Tribunal, appeal to the Tribunal against
the adjudicator's determination on a point of law.
(2) A
party to an application to the Tribunal for permission to appeal under
subsection (1) may apply ... to the Court of Session for a review of the
Tribunal's decision on the ground that the Tribunal made an error of law.
(3) Where
an application is made under subsection (2)-
(a) it
shall be determined by a single judge by reference only to written
submissions,
(b) the
judge may affirm or reverse the Tribunal's decision,
(c) the
judge's decision shall be final ...
102 Decision
(1) On an appeal under section 101 the Immigration Appeal
Tribunal may-
(a) affirm
the adjudicator's decision;
(b) make
any decision which the adjudicator could have made;
(c) remit
the appeal to an adjudicator;
(4) In
remitting an appeal to an adjudicator under subsection (1)(c) the Tribunal may,
in particular-
(a) require the adjudicator to determine the appeal in accordance
with
directions of the Tribunal;
(b) require the adjudicator to take additional evidence with a
view to the
appeal being determined by the
Tribunal.
103 Appeal from
Tribunal
(1) Where the Immigration Appeal Tribunal determines an appeal
under section
101 a party to the appeal may bring a
further appeal on a point of law-
(a) where
the original decision of the adjudicator was made in
to the Court of Session ...
(2) An appeal under this section may be brought only with the
permission of-
(a) the
Tribunal, or
(b) if
the Tribunal refuses permission, the court referred to in subsection
(1)(a) ...
(3) The remittal of an appeal to an adjudicator under section
102(1)(c) is not a determination of the appeal for the purposes of subsection
(1) above."
The facts averred by the petitioner:
(1) The background
[7] The petitioner
has claimed asylum in the
[8] It is averred
that the background to the claim of the petitioner for asylum and ECHR
protection is as follows. The petitioner
is of Palestinian ethnicity. Her family
were supporters of the Palestinian Liberation Organisation ("PLO"). She lived in the Sabra/Shatila refugee camp
for Palestinian refugees located in the southern outskirts of
[9] It
is further averred that subsequent to the massacre - and in response to claims
that the Israeli Defence Force bore responsibility for the events at Sabra and
Shatila - the Israeli Government set up a Commission of Inquiry, under the
chairmanship of
[10] Finally,
it is averred that Ariel Sharon subsequently became Prime Minister of Israel in
2001. After his election to the post of
Prime Minister, a lawsuit was filed by relatives of the victims of the massacre
in
(2) The
history of the petitioner's application for asylum and ECHR protection
[11] The
essence of the claim of the petitioner for asylum and ECHR protection is
averred to be as follows. One of the war
crime complaints brought in the Belgian courts against Ariel Sharon was taken
in the name of Miss Souad Sorour, a friend of the petitioner who had been a
neighbour of the petitioner at Sabra/Shatila.
The lawyers acting for Miss Sorour contacted the petitioner seeking her
assistance with the case. In particular
she was asked to collect statements from surviving eye-witnesses in the camp. The
petitioner actively assisted in the preparations for this criminal prosecution
and did so, by investigating matters as requested, identifying witnesses, and
collating the evidence from the survivors of the massacre in co-operation with
the Belgian lawyers pursuing the claim. The
principal Belgian lawyer for Miss Sorour, Maître Mehdi Abbes, Avocat,
visited the petitioner in
[12] It
is further averred that the petitioner lodged an appeal against the refusal of
her claim for asylum and ECHR protection, in terms of section 82 of the 2002
Act. (So far as we can tell, the appeal
was against a decision under section 82(2)(h) of the 2002 Act, viz. a
decision that the appellant was to be removed from the United Kingdom by way of
directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971,
and the grounds of appeal were those provided by paragraphs (c) and (g) of
section 84(1) of the 2002 Act, viz. (c) that the decision was unlawful under
section 6 of the Human Rights Act 1998 and (g) that removal of the appellant
from the United Kingdom in consequence of the immigration decision would breach
the United Kingdom's obligations under the Refugee Convention or would be
unlawful under section 6 of the Human Rights Act 1998 as being incompatible
with the appellant's Convention rights.)
The appeal was heard before Mr KR Forbes, an adjudicator. His determination was promulgated on
[13] It
is further averred that on 11 June 2004 an application for leave to appeal to
the Immigration Appeal Tribunal ("IAT") against this decision was lodged by the
petitioner's solicitors detailing the grounds on which the adjudicator had
erred and seeking permission for the petitioner to lodge further evidence to
counter certain findings of fact and assumptions made by the adjudicator. The application for leave to appeal contained
30 grounds. This reflected the fact that
the issues in the appeal were many. The
account of the petitioner was complex. The
determination of the appeal itself was lengthy.
It took three days of evidence and the consideration of lengthy
documentary and video evidence. The
determination itself ran to some 45 paragraphs and 17 pages. In the letter of
[14] On
The judge's decision
"I find myself quite unable to hold
that the Tribunal erred in the exercise of its discretion or erred in law in
refusing permission to appeal. Further,
I consider that the reasons given by the Tribunal for its decision are
sufficient and adequate."
The judge's membership of the International Association of Jewish Lawyers
and Jurists
[16] Upon
receiving intimation of the judge's decision, those representing the petitioner
chose, for whatever reason, to make further inquiry about the judge. By means of the Internet search engine Google
they discovered information about her which was (and is) publicly available on
various websites. One such website was
that of The International Association of Jewish Lawyers and Jurists ("the
Association"), www.intjewishlawyers.org. The Association has members in several
countries, including the
[17] The
petitioner alleges that, by reason of her membership of the Association, when
she pronounced her interlocutor of
Membership
[18] Under
the heading "Membership" this statement appears:
"Membership in the International Association
of Jewish Lawyers and Jurists is by direct individual membership. Lawyers and
Jurists who share the aims of the Association as described on this site, are
invited to join the IAJLJ by filling out the enclosed membership form and
mailing it to us together with the annual membership fee for the current year."
A person wishing
to become a member is invited to fill out a form, containing this declaration:
"I hereby apply to become a member of
The International Association of
Jewish Lawyers and Jurists. I declare
that I approve the aims and objects of the Association and undertake to comply
with the Articles and Rules of the Association."
The objects of the Association
"The International Association of
Jewish Lawyers and Jurists strives to advance human rights everywhere,
including the prevention of war crimes, the punishment of war criminals, the
prohibition of weapons of mass destruction, and international co-operation
based on the rule of law and the fair implementation of international covenants
and conventions.
The Association is especially committed
to issues that are on the agenda of the Jewish people, and works to combat
racism, xenophobia, anti-Semitism, Holocaust denial and negation of the State
of Israel.
IAJLJ was founded in 1969. Among its founders were Supreme Court
Justices Haim Cohn of
The Association has Category II Status
as a non-governmental organization (NGO) at the United Nations, enabling it to
participate in the deliberations of various UN bodies. In this capacity, the representative of the
Association has been actively involved in the work of the Commission on Human
Rights in
The Association also publishes [the
magazine] Justice...which examines a variety of relevant issues and
current topics and is mailed to thousands of lawyers and jurists throughout the
world..."
Policy Statements
[21] It is also averred in the petition:
"15. As
noted above, the Association also publishes Justice, a quarterly
magazine which contains various legal and political articles. As a member of the Association, the [judge]
will have received issues of Justice.
Much of the material published therein is more consistent with an
organisation which, when viewed reasonably, appears to have a political
campaigning agenda going beyond the publication of articles on purely legal
issues. The tone of language that is
used is not that which one normally associates with an academic legal journal,
notwithstanding that many of the contributors bear to be legal practitioners
and academics. Although each edition of Justice
carries with it the following disclaimer: 'Views of individuals and
organizations published in Justice are their own, and inclusion in this
publication does not necessarily
imply endorsement by the Association', the tenor of the message from the
President of the Association - which is contained at the start of each issue of
Justice - characteristically expresses strongly worded views on such
issues as the need to protect Israel, the criticism of the international
community if it is critical of Israel, and the view that the Middle East
situation is the 'fault' of the Palestinians.
For example in Issue 30 of Winter 2001 in the President's Message at the
Jerusalem conference the theme is how risk to State of Israel is a risk to the
future of Jews as a people. Page 5 of
the editorial refers to the Sabra/Shatila trial of Ariel Sharon in
"[T]he law is a powerful weapon, and
we, men and women of the law, are sworn to uphold the law, to find ways and
means of securing public order and protecting the rights of the individual,
within the rule of law."
The President's Message in issue no. 30 for Winter 2002 contained (at page 5,
referred to, at least in general terms, in statement 15 in the petition, quoted
above at paragraph [21]) the statement:
"[A]bsent in the Belgian dock are
those who actually committed the murders in Sabra and Shatila. The only one they propose to place in the
dock is the Israeli Prime Minister. One
group of Arabs killed another group of Arabs in a most brutal massacre, and I
did not hear of the Lebanese government setting up a public committee of
inquiry, as did Israel, or being censured in the United Nations, let alone
being accused in a criminal court."
Counsel also drew attention to an article in issue no. 35 for Spring 2003 by Prof Yoab Gelber, Head
of the School of History, Haifa University, entitled "The Lawsuit Submitted
against Ariel Sharon in Belgium: Historical Background", which concluded (at
page 28, again referred to in general terms in statement 15 of the petition):
"The lawsuit submitted in
The authorities
[23] We propose at
this stage to set out the principal authorities to which reference was made in
the course of the hearing. We shall
divide them into two categories, decisions of the House of Lords and the Privy
Council in the
Decisions of the House of Lords and the Privy Council
[24] (1) In Porter
v Magill [2001] UKHL 67, [2002] 2 AC 357, the House of Lords had to consider the formulation for the test of
apparent bias as applied to a local government auditor. Lord Hope of Craighead said:
"99. The
test for apparent bias which the auditor sought to apply to himself, and was
applied in its turn by the Divisional Court, was that which was described in R
v Gough [1993] AC 646 by Lord Goff of Chieveley where he said at p 670:
'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 have been 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 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...'
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 view of 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
'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 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. I said, at p
142F-G, that, although the tests in
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 711 A-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 pp726H-727C:
'85 When the
103. I
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
[25] (2) In Lawal
v Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856, Lord Steyn, delivering the opinion of the Appellate
Committee of the House of Lords, said:
"14. In
Porter v Magill [2002] 2 AC 357 the House of Lords approved a
modification of the common law test of bias enunciated in R v Gough
[1993] AC 646. ... In the result there is now no difference
between the common law test of bias and the requirements under Article 6 of the
Convention of an independent and impartial tribunal, the latter being the
operative requirement in the present context.
The small but important shift approved in Porter v Magill [2002] 2 AC 357 has at its core the need for 'the confidence which must be
inspired by the courts in a democratic society': Belilos v
"7. Very
few reported cases concern actual bias, if that expression has to be used, and
it must be emphasised that this is not one of them. Both before the Second Division and before
the House, counsel for Mr Davidson were at pains to disclaim any challenge to
the personal honour or judicial integrity of Lord Hardie. They are not in question. It has however been accepted for many years
that justice must not only be done but must also be seen to be done. In maintaining the confidence of the parties
and the public in the integrity of the judicial process it is necessary that
judicial tribunals should be independent and impartial and also that they
should appear to be so. The judge must
be free of any influence which could prevent the bringing of an objective
judgment to bear or which could distort the judge's judgment, and must appear
to be so. Following some divergence of
view between the courts of England and Wales and Scotland on the correct
formulation of the correct test (see Locabail (UK) Ltd v Bayfield Properties
Ltd [2000] QB 451, paragraph 16), the Scottish test has come to be accepted. In Porter v Magill [2001] UKHL 67,
[2002] 2 AC 357, 494, paragraph 103, my noble and learned friend Lord Hope of
Craighead expressed the test in terms accepted by the Second Division and by
both parties to this appeal:
'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.'
That, it is agreed, is the test which
must be applied to the facts of this case.
...
17.
... [I]t is difficult, if not impossible, to lay down hard-edged
rules to distinguish a case where apparent bias may be found from one where it
may not. Much will turn on the facts of
the particular case.... I am...of the clear
opinion that its [the Second Division's] conclusion was justified by the nature
and extent of Lord Hardie's involvement in the passage of the Scotland Act. The fair-minded and informed observer, having
considered the facts, would conclude that there was a real possibility that
Lord Hardie, sitting judicially, would subconsciously strive to avoid reaching
a conclusion which would undermine the very clear assurances he had given to
Parliament.
18.
In reaching this opinion I do not overlook or disparage the significance
of the judicial oath. The Lord Justice
Clerk, in para 33 of his judgment, went too far when describing this as 'beside
the point'. Primarily, I agree, the
judicial oath is relevant to a complaint of actual bias, with which this case
is not concerned. But the fair-minded
and informed observer, who is 'neither complacent nor unduly sensitive or
suspicious' (Johnson v Johnson (2000) 201 CLR 488, 509, para 53), would
be aware in general terms that judges take an oath and would accept that judges
try to live up to the high standard which it imposes. Such an observer would, I think, regard the
judicial oath as 'an important protection' (as Lord Reed called it in Starrs
v Ruxton 2000 JC 208, 253) but not as 'a sufficient guarantee to exclude
all legitimate doubt' (ibid.)"
[27] Lord Hope of Craighead said:
"45.
... I have to confess that, while I am persuaded that on the facts of the
case this decision is inevitable, I regard it with little enthusiasm.
46. It would be easy, were we permitted to take a
more robust view, to deplore a system which permits an unsuccessful litigant to
challenge a judge's decision that has gone against him by searching after the
event for previously undiscovered material, like a needle in a haystack, that
might be thought to undermine his objectivity.
One might think that the cost and delay of rehearing the case would only
be justified if there was a real possibility that the wrong decision had been
reached because of the alleged bias. But
that is not the approach that we are required to take by article 6(1) of the
European Convention on Human Rights and Fundamental Freedoms, which requires
the tribunal to be independent and impartial, and by the Strasbourg authorities. And by long tradition in our own country the
rule has been that justice must not only be done, it must be seen to be done. So it is not to the determination itself that
one looks, or to the question whether there has in fact been a fair trial, but
to the tribunal: Millar v Dickson 2002 SC (PC) 30, para 65. Its independence and impartiality is the
subject of a separate guarantee in article 6(1): Porter v Magill [2002] 2 AC 357, 496-497, paras 108, 109. This
is a necessary element in the fairness, or justice, of the determination. The means by which the information that casts
doubt on its independence or impartiality came to the attention of the person
who claims that it was unfair are unimportant.
The court's duty is simply to examine the information that is put before
it and to assess its consequences."
[28] (4) In
Meerabux v Attorney General of Belize [2005] UKPC 12, [2005] 2 AC 513, Lord Hope of Craighead, delivering the judgment
of the Judicial Committee of the Privy Council, explained the circumstances
thus:
"1. The
appellant is a former justice of the Supreme Court of Belize. On 18 September 2001 following complaints of
misbehaviour filed by the Bar Association of Belize and by an attorney at
law...he was removed from office by the Governor-General on the advice of the
Belize Advisory Council ('the BAC'). ...
2. The appellant's case is that the
decision of the BAC that he misbehaved while performing his duties as a judge
and its advice to the Governor-General that he should be removed from office
were fundamentally flawed for two reasons.
The first is that Mr Ellis Arnold, who presided over the proceedings in
his capacity as the Chairman of the BAC, was also a member of the Bar
Association of Belize by which the majority of the complaints of misbehaviour
had been made. It is said that he was
automatically disqualified from taking any part in these proceedings by reason
of his membership of the Bar Association, or alternatively that a fair-minded
and informed observer would have concluded that there was a real possibility
that he was biased. ..."
[29] On the
question of apparent bias, Lord Hope said:
"21 The
decision of the House of Lords in the Pinochet (No.2) case [R v Bow
Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119] to apply the rule which automatically disqualifies a judge from
sitting in a case in which he has an interest to the situation in which Lord
Hoffmann found himself appears, in retrospect, to have been a highly technical
one. There was, of course, ample
precedent for the proposition that the rule that no one may be a judge in his
own cause is not confined to cases where the judge is a party to the
proceedings. It extends to cases where
it can be demonstrated that he has a personal or pecuniary interest in the
outcome, however small: Dimes v Proprietors of Grand Junction
Canal (1852) 3 HL Cas 759; Sellar v Highland
Railway Co, 1919 SC (HL) 19. The extension of the
rule was taken one step further when Lord Hoffmann was held to have been
disqualified automatically by reason of his directorship of a charitable
company. That company was not a party to
the appeal, nor had it done anything to associate itself with those proceedings. But the company of which he was a director
was controlled by Amnesty International, which was a party and which was
actively seeking to promote the case for the extradition and trial of Senator
Pinochet on charges of torture. Lord
Browne-Wilkinson said that there was no room for fine distinctions in this area
of the law if the absolute impartiality of the judiciary was to be maintained:
p 135E-F.
22 One
of the undercurrents in that case, which can be seen from comparing the
speeches of Lord Browne-Wilkinson at p 136 and Lord Hope of Craighead at pp
141-142, was whether the test of apparent bias laid down in R
v Gough [1993] AC 646 needed to be reviewed in the light of subsequent decisions in
Canada, Australia and New Zealand to bring it into line with the test which,
following earlier English authority, had been applied
in Scotland. The House found it
unnecessary to conduct this review in the Pinochet case, as it felt able
to apply the automatic disqualification rule to its circumstances which were,
as Lord Browne-Wilkinson acknowledged at p 134C, striking and unusual. But the review which was so obviously needed
was not long in coming. The Court of
Appeal took the opportunity which presented itself in In
re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 to
consider the whole question of apparent bias and how its presence was to be
tested. The adjustment of the test in R v Gough which
was described by Lord Phillips of Worth Matravers MR at pp 726-727 laid the
basis for the final stage in the formulation of the objective test which is set
out in Porter v Magill, para 103: whether the
fair-minded and informed observer, having considered the facts, would consider
that there was a real possibility that the tribunal was biased. As Lord Steyn said in Lawal v Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856, para 14,
public perception of the possibility of unconscious bias is the key. If the House of Lords had felt able to apply
this test in the Pinochet case, it is unlikely that it would have found
it necessary to find a solution to the problem that it was presented with by
applying the automatic disqualification rule.
...
25 The issue of
apparent bias having been raised, it is nevertheless right that it should be
thoroughly and carefully tested. Now
that the law on this issue has been settled, the appropriate way of doing this
in a case such as this, where there is no suggestion that there was a personal
or pecuniary interest, is to apply the Porter v Magill test. The question is what the fair-minded and
informed observer would think. The man
in the street, or those assembled on
[30] (5) In Gillies
v Secretary of State for Work and Pensions
[2006] UKHL 2, 2006 SC (HL) 71, in considering the question whether the fact
that a medical practitioner who was a member of a disability appeal tribunal
also acted as an examining medical practitioner ("EMP") on behalf of the
Benefits Agency gave rise to apparent bias on her part, Lord Hope of Craighead
said at paragraph 17:
"The critical issue is whether the fair-minded
and informed observer would conclude, having considered the facts, that there
was a real possibility that Dr Armstrong would not evaluate reports by other
doctors who acted as EMPs objectively and impartially against the other
evidence. The fair-minded and informed
observer can be assumed to have access to all the facts that are capable of
being known by members of the public generally, bearing in mind that it is the
appearance that these facts give rise to that matters, not what is in the mind
of the particular judge or tribunal member who is under scrutiny. It is to be assumed, as Kirby J put it in Johnson
v Johnson (2000) 201 CLR 488, 509, para 53, that the observer is neither
complacent nor unduly sensitive or suspicious when he examines the facts that
he can look at. It is to be assumed too
that he 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."
[31] Baroness
Hale of
"The 'fair minded and informed observer' is
probably not an insider (ie another member of the same tribunal system). Otherwise she would run the risk of having
the insider's blindness to the faults that outsiders can so easily see. But she is informed. She knows the relevant facts. And she is fair minded. She is, as Kirby J put it in Johnson v
Johnson (2000) 2001 CLR 488, 'neither complacent nor unduly sensitive or
suspicious'."
Decisions of courts in other jurisdictions
"II. The Test for Reasonable Apprehension of
Bias
31 The test for reasonable apprehension of
bias is that set out by de Grandpré J. in
Committee for Justice and
'.
. . the apprehension of bias must be a reasonable
one, held by reasonable and right-minded persons, applying themselves to the
question and obtaining thereon the required information.... [T]hat test is 'what would an informed person,
viewing the matter realistically and practically -- and having thought the
matter through -- conclude. Would he
think that it is more likely than not that [the decision-maker], whether
consciously or unconsciously, would not decide fairly.' The grounds for this apprehension must,
however, be substantial and I ... refus[e]
to accept the suggestion that the test be related to the 'very sensitive or
scrupulous conscience'.
32 As
Cory J. notes at para. 92, the scope and stringency of the duty of
fairness articulated by de Grandpré depends largely on the role and function of
the tribunal in question. Although
judicial proceedings will generally be bound by the requirements of natural
justice to a greater degree than will hearings before administrative tribunals,
judicial decision-makers, by virtue of their positions, have nonetheless been
granted considerable deference by appellate courts inquiring into the
apprehension of bias. This is because
judges 'are assumed to be [people] of conscience and intellectual discipline,
capable of judging a particular controversy fairly on the basis of its own
circumstances':
33 Notwithstanding
the strong presumption of impartiality that applies to judges, they will
nevertheless be held to certain stringent standards regarding bias - 'a
reasonable apprehension that the judge might not act in an entirely impartial
manner is ground for disqualification': Blanchette v. C.I.S.
Ltd., [1973] S.C.R. 833, at pp.
842-43.
34 In
order to apply this test, it is necessary to distinguish between the
impartiality which is required of all judges, and the concept of judicial
neutrality. The distinction we would
draw is that reflected in the insightful words of Benjamin N. Cardozo in The Nature of the Judicial
Process (1921), at pp. 12-13 and 167, where he affirmed the importance of
impartiality, while at the same time recognizing the fallacy of judicial
neutrality:
'There is in each of us a stream of
tendency, whether you choose to call it philosophy or not, which gives
coherence and direction to thought and action.
Judges cannot escape that current any more than other mortals. All their lives, forces which they do not
recognize and cannot name, have been tugging at them -- inherited instincts,
traditional beliefs, acquired convictions; and the resultant is an outlook on
life, a conception of social needs.... In
this mental background every problem finds its setting. We may try to see things as objectively as we
please. None the less, we can never see
them with any eyes except our own.
Deep below consciousness are other
forces, the likes and the dislikes, the predilections and the prejudices, the
complex of instincts and emotions and habits and convictions, which make the
[person], whether he [or she] be litigant or judge.'
35 Cardozo
recognized that objectivity was an impossibility because judges, like all other
humans, operate from their own perspectives.
As the Canadian Judicial Council noted in Commentaries on Judicial
Conduct (1991), at p. 12, '[t]here is no human being who is not the product
of every social experience, every process of education, and every human contact'. What is possible and desirable, they note, is
impartiality:
' ...
the wisdom required of a judge is to recognize, consciously allow for,
and perhaps to question, all the baggage of past attitudes and sympathies that
fellow citizens are free to carry, untested, to the grave.
True
impartiality does not require that the judge have no sympathies or opinions; it
requires that the judge nevertheless be free to entertain and act upon
different points of view with an open mind.'
...
The judgment of Cory and Iacobucci JJ
contained the following observations:
"(iv) The
Test for Finding a Reasonable Apprehension of Bias
109 When
it is alleged that a decision-maker is not impartial, the test that must be
applied is whether the particular conduct gives rise to a reasonable
apprehension of bias. Idziak, supra,
at p. 660. It has long been held that
actual bias need not be established. This
is so because it is usually impossible to determine whether the decision-maker
approached the matter with a truly biased state of mind. See Newfoundland Telephone Co. v.
110 It was in this context that Lord Hewart C.J. articulated the famous maxim: '[it] is of
fundamental importance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done': The King v.
111 The
manner in which the test for bias should be applied was set out with great
clarity by de Grandpré J. in his dissenting
reasons in Committee for Justice and
'[T]he apprehension of bias must be a
reasonable one, held by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the required information. .
. . [The] test is 'what would an informed person,
viewing the matter realistically and practically-and having thought the matter
through--conclude. . . .'
This test has been adopted and
applied for the past two decades. It
contains a two-fold objective element: the person considering the alleged bias
must be reasonable, and the apprehension of bias itself must also be reasonable
in the circumstances of the case. See Bertram,
supra, at pp. 54-55; Gushman, supra, at para. 31. Further
the reasonable person must be an informed person, with knowledge of all
the relevant circumstances, including 'the traditions of integrity and
impartiality that form a part of the background and apprised also of the fact
that impartiality is one of the duties the judges swear to uphold': R. v. Elrick,
[1983] O.J. No. 515 (H.C.), at para. 14. See
also Stark, supra, at para.
74; R. v. Lin, [1995] B.C.J. No. 982
(S.C.), at para. 34. To that I would add that the reasonable
person should also be taken to be aware of the social reality that forms the
background to a particular case, such as societal awareness and acknowledgement
of the prevalence of racism or gender bias in a particular community.
...
113 Regardless
of the precise words used to describe the test, the object of the different
formulations is to emphasize that the threshold for a finding of real or
perceived bias is high. It is a finding
that must be carefully considered since it calls into question an element of
judicial integrity. Indeed an allegation
of reasonable apprehension of bias calls into question not simply the personal
integrity of the judge, but the integrity of the entire administration of
justice. See Stark, supra,
at paras. 19-20. Where reasonable grounds to make such an
allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not
be undertaken lightly.
114 The
onus of demonstrating bias lies with the person who is alleging its existence: Bertram,
supra, at p. 28; Lin, supra, at para. 30. Further,
whether a reasonable apprehension of bias arises will depend entirely on the
facts of the case.
115 ...
All judges of every race, colour, religion, or national background are entitled
to the same presumption of judicial integrity and the same high threshold for a
finding of bias. Similarly, all judges
are subject to the same fundamental duties to be and to appear to be impartial.
(v) Judicial
Integrity and the Importance of Judicial Impartiality
116 Often the most significant occasion in the career of a judge is
the swearing of the oath of office. It
is a moment of pride and joy coupled with a realization of the onerous
responsibility that goes with the office.
The taking of the oath is solemn and a defining moment etched forever in
the memory of the judge. The oath
requires a judge to render justice impartially.
To take that oath is the fulfilment of a life's dreams. It is never taken lightly. Throughout their careers, Canadian judges
strive to overcome the personal biases that are common to all humanity in order
to provide and clearly appear to provide a fair trial for all who come before
them. Their rate of success in this
difficult endeavour is high.
117 Courts
have rightly recognized that there is a presumption that judges will carry out
their oath of office. See R. v. Smith
& Whiteway Fisheries Ltd. (1994),
133 N.S.R. (2d) 50 (
...
119 The
requirement for neutrality does not require judges to discount the very life
experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be
impartial does not mean that a judge does not, or cannot bring to the bench
many existing sympathies, antipathies or attitudes. There is no human being who is not the product
of every social experience, every process of education, and every human contact
with those with whom we share the planet.
Indeed, even if it were possible, a judge free of this heritage of past
experience would probably lack the very qualities of humanity required of a
judge. Rather, the wisdom required of a
judge is to recognize, consciously allow for, and perhaps to question, all the
baggage of past attitudes and sympathies that fellow citizens are free to
carry, untested, to the grave.
True impartiality does not require
that the judge have no sympathies or opinions; it requires that the judge
nevertheless be free to entertain and act upon different points of view with an
open mind.
(Canadian Judicial Council, Commentaries
on Judicial Conduct (1991), at p. 12.)"
"[T]he correct approach to this
application for the recusal of members of this Court is objective and the onus of establishing it rests upon the
applicant. The question is whether a
reasonable, objective and informed person would on the correct facts reasonably
apprehend that the Judge has not or will not bring an impartial mind to bear on
the adjudication of the case, that is a mind open to persuasion by the evidence
and the submissions of the counsel. The
reasonableness of the apprehension must be assessed in the light of the oath of
office taken by the Judges to administer justice without fear or favour; and
their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse
their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that
they have a duty to sit in any case in which they are not obliged to recuse
themselves. At the same time, it must
never be forgotten that an impartial Judge is a fundamental prerequisite for a
fair trial and a judicial officer should not hesitate to recuse herself or
himself if there are reasonable grounds on the part of a litigant for
apprehending that the judicial officer, for whatever reasons, was not or will
not be impartial."
Discussion
[35] We derive particular assistance for present
purposes from the cases of Committee for Justice and Liberty v National Energy Board and President of the Republic of South Africa and Others v South African Rugby Union Football Union, especially the former,
from which we have set out an extensive quotation. This seems to us to express, better than we
could do ourselves, what is entailed by the holding of judicial office. Mr O'Neill submitted that these cases were of
limited assistance, because they were decided before Porter v Magill. But, as is apparent, Canadian and South
African courts did not follow the test described in R v Gough, in which the
House of Lords stated that there must be a "real danger" of bias and rejected
the test that the court should look at the matter through the eyes of a reasonable
man. Instead, the test they (and
Australian courts) applied was in line with that formulated in
The petitioner's case before this court
[36] In the present
petition, the following averments appear:
"17. That
the determination of the petition for statutory review by the [judge] gives
rise to legitimate doubts as to the apparent impartiality of the [judge] as a
judge in relation to the issues before her.
In particular, there are legitimate grounds for fearing that the [judge]
may have been unconsciously or unwittingly influenced in her decision that the
petition should be refused. The
petitioner does not aver that the [judge] acted subject to any actual
subjective bias on her part. However,
the [judge] is a member of the Association.
The appearance of independence and impartiality is just as important as
the question of whether those qualities exist in fact. Justice must not only be done, it must be
seen to be done. The function of the
right to an independent and impartial tribunal is not only to secure that the
court is free from any actual bias or prejudice. It requires that the matter be viewed
objectively so as to exclude any legitimate doubt as to independence and impartiality. This is particularly important where, as with
a petition for statutory review, proceedings do not take place in open court
"18. That
taking this approach to the matter, the petitioner avers that the test for
apparent impartiality of the [judge] has been breached because:-
(i)
as
a member of the Association she is a member of a body which maintains views
which are actively condemnatory of, and hostile to, persons and the views held
by such persons in relation to the nature and causes of Arab-Israeli conflict
and who are members of, or associated with the PLO, such as the petitioner and
her family and who are reasonably likely to maintain views in opposition to
those held by the Association and members of the Association;
(ii)
that
the promotion of these views appears to be an ongoing and central feature of
the activities of the Association, both through statements made at the United
Nations and through the medium of Justice and the provision of
conference platforms to those advancing such views, including Ariel Sharon;
(iii)
a
material aspect of the case made by the petitioner is that Ariel Sharon had
direct knowledge of and personal responsibility for the Sabra/Shatila massacre,
that she has involvement in the Belgian proceedings brought against Ariel
Sharon, and that she is at risk of targeting by Israeli forces as a result of
her views and her involvement in the Belgian case;
(iv)
in
sharp contrast to the position of the petitioner, the Association through both
the medium of Justice and at the said 12th International
Congress has published articles and actively promoted the position that only
the Lebanese Phalangists were responsible for the massacre and that the
proceedings in Belgium against Ariel Sharon are to be condemned, in essence, as
being unfounded, brought in bad faith, and as inspired by a propagandist
attempt to blame Israel for the massacre;
(v)
that
as a member of the Association the [judge] may, quite unconsciously, have been
influenced by the views advanced by the Association, particularly in relation
to the criminal proceedings against Ariel Sharon."
Submissions of counsel
Submissions for the Advocate General
[39] On behalf of the Advocate
General, Mr Tyre started with a discussion of the factual background. He submitted that the petitioner asserted
that the fact of membership of an international association of lawyers was
sufficient for the fair-minded and informed observer to conclude that there was
a real possibility of bias in a case concerning an individual likely to hold
views opposed to those likely to be expressed on behalf of the Association by a
person other than the judge herself. This
went further than the authorities, and conflicted with some of them. There was nothing exceptionable about the
aims of the Association, and Mr O'Neill had not founded on them. Counsel was ready to accept that the
Association was likely to promote an Israeli point of view, which was
sympathetic to
Submissions for the Lord Advocate
[41] On behalf of the Lord Advocate,
Mr Moynihan adopted Mr Tyre's submissions in their entirety. He added that in Pinochet Lord Hope had regarded the crucial factor as being
that Amnesty had been a party to the proceedings. That constituted a greater degree of
proximity than any aspect of the present case.
Authorities such as Hoekstra
(No.2) 2000 J.C. 391 and
Discussion
[44] This leaves
for consideration the statements made on behalf of the Association and
published on its website, and the President's Messages published in Justice.
While it may, of course, be reasonable to assume that all members of the
Association have necessarily subscribed to its stated aims and objects, we do
not accept that it could reasonably be assumed by any fair-minded and informed
observer that every member of this apparently very large and widely-based
international organisation (with wide and generally-expressed aims which are
beyond criticism) would necessarily share all the views apparently expressed by
its representatives in the ways, and on the occasions, referred to. It is, we think, the universal experience of
members of any large organisation of independent professionals, on whose
apparent behalf views may be expressed by representatives at conferences and
the like, that they do not always agree with what may be said on any particular
occasion, not only as regards form of expression but also in respect of content. It must not be forgotten that, although the concentration
in the hearing before us was necessarily on certain views apparently expressed
on particular matters (especially on what was said to be the "material aspect
of the case", the question of Israeli responsibility in respect of the
Sabra/Shatila massacre), these represented only a very small proportion of the
many views expressed on diverse and varying issues over many years. We imagine that that is why, after an apparently
exhaustive trawl through the Association's material, and no doubt after much
careful thought, the
Result
[46] We shall
accordingly refuse the prayer of the petition.
