Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights.

  • Great Britain. Parliament. Joint Committee on Human Rights
Date:
2004
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Licence: Open Government Licence

Credit: Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights. Source: Wellcome Collection.

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    thorough review of both the English and the Strasbourg authorities concerning “apparent bias” on the part of a tribunal. 1.29 Having reviewed the case-law, the Court sought to summarise the principles to be derived from the Strasbourg line of cases. It said that the Court has to decide whether, on an objective appraisal, the material facts gave rise to a legitimate fear that the Judge might not have been impartial, and “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.” 1.30 Taking that jurisprudence into account, the Court concluded that a “modest adjustment” of the Gough test was called for, which made it clear that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The test to be applied has two elements— (1) first, the Court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal is not impartial; and (2) then it must 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.” 1.31 In short, the test is “whether the objective onlooker might have a reasonable » 23 apprehension of bias”. 1.32 The Court of Appeal’s modification of the Gough test for common law bias in the Proprietary Association case has since been endorsed unanimously by the House of Lords in Magill v Porter.“ It held that “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”.” As Lord Steyn subsequently explained— ... the purpose and effect of this modification was to bring the common law rule into line with the Strasbourg jurisprudence. ... The small but important shift approved in Magill v Porter has at its core the need for ‘the confidence which must be inspired by the courts in a democratic society.” Other international standards and guidelines 1.33 In addition to the case-law of the European Court of Human Rights under Article 6(1), there are some important other human rights instruments which seek to elaborate on 22 2001] 1 WLR 700 at para. 85 23 As the Court made clear at para. 69, this ‘reasonable apprehension of bias’ test is particularly appropriate where a judge is invited to recuse himself or herself on grounds of bias, since it is “invidious to expect a Judge to rule on the danger that he may actually be influenced by partiality.” 24 Magill v Porter [2001] UKHL 67, [2002] 2 AC 357 at paras 95-105 25. ibid., at para. 103 (Lord Hope) 26 Lawal v Northern Spirit Limited [2003] UKHL 35, [2003] ICR 856 at para. 14