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Cite as: [2002] EWCA Civ 1104

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		Neutral Citation Number: [2002] EWCA Civ 1104
		Case No: 2001/1056

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice
Strand,
London, WC2A 2LL

31 July 2002

B e f o r e :

LORD JUSTICE LAWS
LORD JUSTICE JONATHAN PARKER
and
LORD JUSTICE KEENE
____________________

Between:

	Dr S SENGUPTA MR THOMAS	Appellant
	- and -
	(1) C N HOLMES (2) D R DEAN (3) V DEAN THE GENERAL MEDICAL COUNCIL and MR WEIR - and - THE LORD CHANCELLOR OF ENGLAND, WALES & NORTHERN IRELAND	Respondents Intervener

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
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____________________

Mr Thomas & Miss M O’Rourke (instructed by Radcliffes Le Brasseur) for the Appellant
Mr M Shaw QC (instructed by Field Fisher Waterhouse) for the 1st GMC & Mr Weir
Mr Hunt & Mr C Gearty (instructed by Graham John Solicitors) for the 1st 2nd & 3rd Respondents
Mr P Stanley (Intervening for the Lord Chancellor)
Miss E Grey (Advocate to the Court, instructed by Treasury Solicitors)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Laws:

INTRODUCTION

The issue to which this judgment is directed arises from an order made by Ouseley J in the Administrative Court on 27 April 2001, when he quashed a decision of the Preliminary Proceedings Committee (“the PPC”) of the General Medical Council (“the GMC”) of 9 September 1999 to the effect that a complaint that Dr Sengupta had breached his terms of service as a general practitioner should not proceed to the Professional Conduct Committee (“the PCC”). The authors of the complaint lodged judicial review proceedings naming the GMC as defendant. Dr Sengupta was and is an interested party. The case was somewhat unusual because, for reasons into which it is presently unnecessary to go, the GMC supported the claim and submitted that the decision of the PPC ought to be quashed. Dr Sengupta, naturally enough, sought to uphold the decision that the complaint should not proceed to the PCC.

Ouseley J quashed the decision (and certain other decisions with which we are not concerned). Dr Sengupta sought permission to appeal. I considered the application on the papers, and refused it on 13 May 2001. I said:

“I think the Judge was right for the reasons he gave, not least having regard to [two authorities]. As for the costs there is no error of principle.”

As was his right Dr Sengupta renewed his application for permission to appeal in court, and the matter came before Simon Brown and Tuckey LJJ on 20 July 2001. Miss O’Rourke made submissions on Dr Sengupta’s behalf, and the court granted permission. The substantive appeal came on for hearing on 13 March 2002. The court was constituted by myself, Jonathan Parker and Keene LJJ. At the outset Miss O’Rourke for Dr Sengupta drew attention to the fact that I had refused permission on the papers and submitted that I should recuse myself on apparent bias grounds. Counsel for the respondents to the appeal, that is to say the original complainants and the GMC, either supported or did not oppose this application. The matter seemed – and seems – to us to be of no little importance. If the court accedes to Miss O’Rourke’s application, that will establish a general rule, or at least invoke a general practice, to the effect that a Lord Justice who has refused permission to appeal on the papers, should not, where permission is subsequently granted by another judge or judges, sit on the substantive appeal. There is nothing in the circumstances of this case to suggest any special or particular consideration by force of which I should recuse myself; the issue is, and has been treated as, one of principle. And it may be that the application of such a general rule or practice would not be limited to the procedural arrangements prevailing in the Civil Division of the Court of Appeal. Consideration would have to be given to the position in the Administrative Court, and the question whether a judge who has refused judicial review permission on the papers should later sit on the substantive judicial review (where permission has been given by another judge in the meantime). I should add that attention was drawn in this case to the fact there is an outstanding application to admit new evidence, in case it might be thought that the resolution of the apparent bias issue should be different where the material being considered by the court on the full appeal was not the same as what had been before the first Lord Justice when he refused permission; but I understand all parties to be agreed, and it is certainly my view, that contingencies of that kind can and should make no difference.

In these circumstances we thought it necessary to adjourn the matter on 13 March 2002, and to ask the Attorney General to appoint an Advocate to the Court to make written submissions on the issue of apparent bias. The Attorney acceded to this request, and submissions were in due course provided by Eleanor Grey of counsel, to whom we are grateful. In addition, while the matter stood adjourned, the court was notified by the Treasury Solicitor that the Lord Chancellor desired to instruct counsel to intervene in the proceedings and make submissions on his behalf. We permitted this to be done. In the result the court, constituted as it had been on 13 March, sat again on 17 July 2002 to consider and decide whether I should recuse myself from the substantive appeal on apparent bias grounds. We were armed with further written submissions from Miss O’Rourke, Mr Mark Shaw QC for the GMC, Mr Gordon Pollock QC for the Lord Chancellor, as well as those of Miss Grey. Counsel supplemented their written arguments with short oral submissions. The hearing was also attended by Mr Conor Gearty for the original claimants, but he did not find it necessary to add anything.

We now give judgment on the apparent bias issue.

THE RULES

The procedure by which applications for permission to appeal are dealt with is contained in CPR 52.3, as follows:

“(2) An application for permission to appeal may be made –

(a) to the lower court at the hearing at which the decision to be appealed was made: or

(b) to the appeal court in an appeal notice....

(3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court.

(4) Where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing.

(5) A request under paragraph (4) must be filed within 7 days after service of the notice that permission has been refused.”

There is an associated Practice Direction (52PD.10,4.13):

“If permission is refused without a hearing the parties will be notified of the decision with the reasons for it. The decision is subject to the appellant’s right to have it reconsidered at an oral hearing. This may be before the same judge.”

There is nothing in any rule or practice direction to stipulate whether or not a judge who had at any stage considered an application for permission might sit as a member of the court hearing the substantive appeal in a case where permission has later been granted.

In light of some of the submissions made to us, it is necessary briefly to describe the procedural regime for applications for permission to appeal which was in being before CPR 52.3. The position was that then, as now, the application was put before a single Lord Justice for consideration on the papers. He might grant permission to appeal; or he might indicate that he was “minded to refuse” permission. In that event, the applicant’s solicitors were provided with the reasons given by the Lord Justice for this provisional conclusion and were told by letter that they were entitled to seek an oral hearing of the application. A prescribed form was stipulated for this letter. It was set out in Annex B to the Practice Direction which dealt with the procedure. This Practice Direction is reported at [1999] 1 AER 186. The prescribed form for the letter included this:

“Wherever possible the assigned Lord Justice will conduct the oral hearing, either sitting alone or with another Lord Justice as the case may be”.

THE AUTHORITIES

(1) General

There is learning both in this jurisdiction and in the European Court of Human Rights in which consideration is given to the circumstances in which a judge should recuse himself from a case on bias or apparent bias grounds. It is convenient first to refer to two recent authorities, one of this court and one of their Lordships’ House, which deal with the test for bias in general terms. Re Medicaments and Related Classes of Goods (2) [2001] 1 WLR 700, Lord Phillips MR said at 727A:

“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”.

This test was approved by their Lordships’ House in Magill v Porter [2002] 2 WLR 37, at 83H – 84A.

In this case it is especially important to consider closely the nature of the test imported by the notional “fair-minded and informed observer”. The reason is that in her oral submissions on 17 July 2002 Miss O’Rourke accepted in terms that a lawyer accustomed to practise in the higher courts here, with daily or at any rate frequent experience of applications for permission to appeal and substantive appeals and the disposition of those matters by judges of the Court of Appeal, would entertain no apprehension at all of bias in a Lord Justice who found himself in the circumstances which apply to me in this case. And she was inclined to accept that the same would be true of a specialist legal journalist whose metier was to report the conduct of business in the Royal Courts of Justice. So the fully informed bystander would entertain no apprehension of bias in this situation. However Miss O’Rourke submitted that the “fair-minded and informed observer” cannot be equated with the practising lawyer who has a close familiarity with the court’s modus operandi. Indeed, I understood her to submit that the observer in question should not be a regular court user with any particular knowledge of court procedures; though it may be someone who has “some knowledge of legal culture”. He or she should not be taken to be a person educated to any particular standard.

The basis of Miss O’Rourke’s submission, which for my part I respect, is that a test for apparent bias which rests on the presumed or actual views of practising lawyers will not deliver public confidence in the judicial system. To a greater or lesser extent they, or some of them, will know the judges personally. Crudely put, they may be said to belong to the same club. Whatever the right solution to this issue, I am clear that this aspect must be given weight. We were referred to the decision of the Supreme Court of South Australia in Southern Equities Corp Ltd v Bond [2000] SASC 450. Olsson J cited authority (paragraphs 36 – 37: Johnson (2000) 174 ALR 655, 658) showing that in Australia the notional bystander for the purposes of the apparent bias rule is described as a “fair-minded lay observer” (thus distinctly not a lawyer). Then at paragraph 39 he proceeded to set out this passage from the judgment of Kirby J in the same case at 671:

“The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish that they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated example of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.”

Later in Southern Equities Bleby J said this at paragraph 126:

“Judges are accustomed to defining standards of behaviour by reference to what would be done by a reasonable person. Most judges would claim to be reasonable people, and to be able to make such judgments on behalf of the community of which they are representatives. However, when one is required to assess the perceptions of a fair-minded lay observer, the judge is cast in a much more difficult role. Admittedly, the observer is observing a professional judge. But the judge deciding an apprehended bias claim is not and never can be a lay observer. In order to determine the likely attitude of fair-minded lay observer, the judge must be clothed with the mantle of someone the judge is not. One must avoid the natural temptation to view the judicial conduct, state of knowledge, association or interest in question through the eyes of a professional judge. An apprehension of bias by pre-judgment is based on a perception of human weakness. Given the double use of ‘might’ in the current formulation of the test for apprehended bias, one must be particularly careful not to attribute to the lay observer judicial qualities of discernment, detachment and objectivity which judges take for granted in each other.”

All of these observations are with respect useful and important. They demonstrate that in determining a claim of apparent bias on the part of a judge, it is not enough to show that those in the know would not apprehend any bias. Indeed, that would demonstrate little more than that in cases of the kind under consideration there is no actual bias; but that, in any event, is not suggested. I must consider the impact of this learning alongside the other authorities: that is the decisions in this jurisdiction which may be said to bear particularly on the circumstances of the present case, and also (not least since the relevant events here all happened after 2 October 2000, when the principal rights guaranteed by the European Convention on Human Rights (“ECHR”) were municipalized by the Human Rights Act 1998 (“HRA”)) certain decisions of the European Court of Human Rights at Strasbourg.

(2) The Domestic Cases

There are three cases decided here which fall to be considered. I will cite the material passages from the judgments, but postpone comment to my conclusions. In date order these cases are Khreino [2000] 1 FCR 75, a decision of two Lords Justices (Thorpe and Mummery LJJ), Mahomed (unreported: CHANI 1999/1003/B3, 3 February 2000), a decision of three judges in this court (Peter Gibson and Schiemann LJJ, and Wilson J), and Rezvi [2002] EWCA Civ 254 decided on 14 February 2002 by Tuckey LJ sitting as a single Lord Justice.

Khreino

In this case, the single Lord Justice, Thorpe LJ, had indicated under the old procedure that he was minded to refuse permission to appeal to the Court of Appeal against a judgment of the High Court in family proceedings. He stated his reasons, and acknowledged the comprehensive skeleton argument which had been placed before him. He indicated that any oral renewal of the application for permission should be heard by two Lords Justices. The application was renewed, and came before the same Lord Justice sitting with Mummery LJ. Objection was taken to the court’s constitution on apparent bias grounds. Thorpe LJ said this (78a-b):

“Therefore his [sc. the single Lord Justice’s] refusal on paper is a considered and reasoned refusal after full consideration of all relevant material, including the applicant’s detailed submissions. In the majority of cases it is intended to be the end of the application for permission unless the single Lord Justice has fallen into manifest error or unless there has been some unexpected subsequent development…”

Mummery LJ said this (79e-f):

“Mr Turner QC says that if the Lord Justice who has indicated that he is minded to refuse and gives reasons for it sits on the oral hearing that renders the oral hearing pointless, because it is taking place before a judge who has already made up his mind. That is a misunderstanding of the procedure. The Lord Justice who has indicated that he is minded to refuse leave to appeal is obliged to consider the matter at the oral hearing in the light of any further points. The oral hearing is not an appeal from an earlier decision.”

The court concluded that there was no good objection to their constitution.

Mahomed

This was also a case under the “minded to refuse” procedure. It is however closer to the present case because the objection was against the Lord Justice who had made the “minded to refuse” decision, Peter Gibson LJ, sitting on the substantive appeal as opposed to the renewed application for permission. Another Lord Justice had given permission to appeal at an oral hearing. Dealing with the objection, Peter Gibson LJ said (paragraph 7):

“I can well understand the anxiety of litigants that a judge who has expressed views on the outcome of an appeal will be prejudiced or otherwise not impartial if he sits on the appeal. I understand from Miss Newman QC, appearing for the appellants, that her clients are so concerned. But, as no doubt counsel will have explained to their clients, the expression of a preliminary view, which is all that is encompassed by a ‘minded to refuse’ indication, does not mean that the judge will not be able to hear the appeal as impartially as his colleagues, who have had nothing to do with the case previously. Not infrequently these days judges give a preliminary indication of their views in the course of their hearing of a case, sometimes at the very outset having read the papers, but I have never heard it suggested that that entitles a party to object to the further conduct by the judge of the hearing. Nor should it. Every judge true to his judicial oath will listen to the oral argument and the views of his colleagues, conscious that his earlier view may prove to be mistaken. No judge wants to persist in an error if that is what his earlier indication was.”

Schiemann LJ said this (paragraphs 11 – 12):

“11… Miss Newman accepts that the Lord Justice who has indicated that he is minded to refuse permission to appeal can sit in the court which considers whether or not permission is to be granted. At that stage the court will either refuse or grant permission. If permission is refused, that is the end of the case. Miss Newman suggests that the position is different once permission has been granted. In those circumstances, the original Lord Justice must recuse himself. Presumably she would accept that that would not apply if he was amongst those who decided to grant permission, having heard further argument.

12. But this position seems to me to be wholly illogical. If there is any force in Miss Newman’s point, it must equally apply to the oral hearing of the permission to appeal application. While there can be temptations which may beset a judge not to act in accordance with his judicial oath, the expression of [a] preliminary view is in my judgment not amongst them. We all frequently change our minds. Even if we do not, the other members of the court may take a different view. I do not see the distinction between the expression of a preliminary view on paper and the expression of a preliminary view at the beginning of a hearing.”

Rezvi

This was a case under the new rules. It was also decided, unlike the two previous cases, after 2 October 2000 when the principal provisions of the HRA came into force. Tuckey LJ had refused permission to appeal on the papers. The renewed application for permission was listed before him, sitting alone. Objection was taken to his dealing with it on apparent bias grounds and by reference to ECHR Article 6(1). After citing CPR 52.3(4), the associated Practice Direction, and the judgments in Khreino, the learned Lord Justice said this (paragraphs 8 – 9):

“8. I entirely agree with the judgments in that case. At that time, as the judgment makes clear, the practice was for the single Lord Justice to say that he was minded to refuse permission. This is no longer the case. Permission is actually refused on paper. So, the court’s role is truly confined to a reconsideration of that decision where it will consider the points referred to by the judges in Khreino. Litigants, who simply repeat what they have said before, cannot realistically expect to succeed.

9. I have dealt with this point in a little detail since it seems to me that this court should make it clear that what it said in Khreino still applies to applications for reconsideration under the new regime.”

(3) The Strasbourg Cases

The relevant cases decided in the European Court of Human Rights are, naturally enough given the court’s international constituency, somewhat more diffuse in their subject-matter.

De Cubber v Belgium 7 EHRR 236

In this case, which came from Belgium, the applicant was convicted of offences of forgery and uttering forged documents by a court one of whose members had acted as investigating judge in the same case. The court at Strasbourg unanimously concluded that there had been a violation of Article 6(1) which as is well known provides:

“In the determination of... any criminal charge against him, everyone is entitled to a ... hearing ... by an ... impartial tribunal ...”

The Strasbourg court went at some length into the details of the investigating judge’s task. I will just set out this passage from paragraph 29 of the judgment:

“Under Belgian law the preparatory investigation, which is inquisitorial in nature, is secret and is not conducted in the presence of both parties; in this respect it differs from the procedure of investigation followed at the hearing before the trial court, which, in the instant case, took place on 8 & 22 June 1979 before the Oudenaarde court. One can accordingly understand that an accused might feel some unease should he see on the bench of the court called upon to determine the charge against him the judge who had ordered him to be placed in detention on remand and who had interrogated him on numerous occasions during the preparatory investigation, albeit with questions dictated by a concern to ascertain the truth.”

Hauschildt v Denmark (1989) 12 EHRR 266

This was a criminal case from Denmark. The applicant was charged with revenue offences and fraud. He was held in detention on remand, sometimes in solitary confinement, by force of successive decisions of the City Court at Copenhagen. A number of these decisions were taken by a particular judge, Judge Larsen. On five occasions he ordered the applicant’s solitary confinement to be continued. He made other orders also. They included an order for the detention on remand of the applicant’s wife, the stopping of letters, the seizure of money and other matters. The applicant’s substantive trial at first instance, which ran from 27 April 1981 to 1 November 1982, took place in the City Court before a presiding judge and two lay judges. The presiding judge was Judge Larsen; and this was the primary feature of the applicant’s complaint, although it possessed other dimensions, not least arising from the fact that certain High Court judges who dealt with the applicant’s appeal had taken decisions at earlier stages.

The court stated in its judgment:

“50… In the Court’s view, therefore, the mere fact that a trial judge or an appeal judge, in a system like the Danish, has also made pre-trial decisions in the case, including those concerning detention on remand, cannot be held as in itself justifying fears as to his impartiality.

51 Nevertheless, special circumstances may in a given case be such as to warrant a different conclusion. In the instant case, the Court cannot but attach particular importance to the fact that in nine of the decisions continuing Mr Hauschildt’s detention on remand, Judge Larsen relied specifically on section 762(2) of the Act...

52 The application of section 762(2) of the Act requires, inter alia, that the judge be satisfied that there is a ‘particularly confirmed suspicion’ that the accused has committed the crime(s) with which he is charged. This wording has been officially explained as meaning that the judge has to be convinced that there is ‘a very high degree’ of clarity as to the question of guilt. Thus the difference between the issue the judge has to settle when applying this section and the issue he will have to settle when giving judgment at the trial becomes tenuous.

The Court is therefore of the view that in the circumstances of the case the impartiality of the courts in question was capable of appearing to be open to doubt and that the applicant’s fears in this respect can be considered objectively justified.”

De Haan v The Netherlands 26 EHRR 417

In this case the applicant’s sick pay had been terminated. She exercised her right to appeal the decision to an Appeals Tribunal. It was presided over by Judge S. Her appeal was dismissed. She was entitled to file an objection, which she did. The objection was heard by a chamber of the Appeals Tribunal, at which, however, Judge S again officiated. The applicant brought an Article 6 case in Strasbourg.

At paragraph 51 of its judgment the court stated:

“The decisive feature of the case is that Judge S presided over a tribunal called upon to decide on an objection against a decision for which he himself was responsible. It is also significant that the tribunal was composed of a professional judge assisted by two lay judges.

...

The situation is more akin to that obtaining in the case of Oberschlick, in which a judge who had participated in the judgment at first instance also participated in the hearing of an appeal against the same judgment.

Against this background the Court finds that the applicant’s fears in this regard were objectively justified.”

There is another line of Strasbourg cases in which claims of apparent bias, said to violate Article 6 ECHR, have been rejected. They include Ringeisen v Austria (No 1 1979-80) 1 EHRR 455, Diennet v France (1995) 21 EHRR 554,) and Thomann v Switzerland (application No 17602/91). In this last case the applicant had been convicted in a criminal court in his absence. The conviction was in due course set aside and a retrial was directed. The applicant discovered that the composition of the court would be the same as that which had originally convicted him. He protested in the domestic court to no avail. The European Court of Human Rights dismissed his application. At paragraph 36 of its judgment the Court said:

“Furthermore, if a court had to alter its composition each time that it accepted an application for a retrial from a person who had been convicted in his absence, such persons would be placed at an advantage in relation to defendants at the opening of their trial, because this would enable the former to obtain a second hearing of their case by different judges at the same level of jurisdiction. In addition, it would contribute to slowing down the work of the courts as it would force a larger number of judges to examine the same file, and that would scarcely be compatible with conducting proceedings within a ‘reasonable time’.”

There is some learning in Strasbourg as to the importance to be attached to the attitude of the litigant himself who complained of bias or apprehended bias on the part of the judge. In Hauschildt at paragraph 48 the court said:

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

Compare Algar (2000) 30 EHRR 827, paragraph 45. This is, I think, the legal setting in which to view the submission made by Miss O’Rourke at paragraph 9 of her supplementary skeleton:

“The appellant was in court for the oral reconsideration of his application for permission. He heard the judgment and noted that, on the same material as previously submitted to the court with nothing added by counsel, permission to appeal was granted in terms which clearly suggested that he had a realistic prospect of success. For him – as a lay person – the clear inference was that the single Lord Justice who had refused permission has been wrong to do so. For him that same judge now considering the same material on the full appeal raises a genuine concern that that judge would have to stand by his previously expressed view.”

Though there are other cases, that is I think a sufficient citation of the Strasbourg learning for the purposes of the issue before us. I will observe at this stage that they are in my view heavily fact-sensitive. They do not speak with anything like a clear voice to a decision that on the facts here I should recuse myself.

(4) Other Authority

I have found with respect that further guidance is to be had from the learning in Australia, and in particular these two following passages. In Re JRL ex parte CJL (1986) 161 CLR 342 in the High Court Mason J said at paragraph 5 of his judgment:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must ‘firmly established’... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

The second passage is from paragraph 18 of the judgment of the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288:

“... a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.”

CONCLUSIONS

(1) The Change in the Rules

It is convenient at this stage to state my clear opinion that the shift in the procedural rules from the regime of the “minded to refuse” decision by the first Lord Justice to the present regime where (as happened here) the first Lord Justice actually refuses permission to appeal constitutes, for the purpose of the present debate, a distinction of form and not of substance. In either case the applicant is/was entitled to renew or pursue his application for permission in court. Under the earlier procedure, if the applicant chose to pursue it no further, the “minded to refuse” decision was for all practical purposes the end of the matter. Mr Shaw QC for the GMC submitted that after a “minded to refuse” letter there had to be an oral hearing in the Court of Appeal in any event, since the application for permission had to be formally and finally disposed of. But if there was no one to urge that the first decision was wrong, it is not in the real world to be supposed that the court would see any reason to depart from it absent some wholly exceptional consideration.

Next, there is I think no perceptible difference in the mindset to be attributed to a judge acting under the old procedure in contrast to the new. In both, if he is against the applicant, he makes a conscientious decision that permission ought not to be granted. In both, he knows that the applicant may ask the court to look at the case again at a hearing. Miss O’Rourke made a submission to the effect that under the old procedure it was not the practice (as it is now) for the applicant to provide a skeleton argument. I do not think that is right, or at least was not generally the case: in Mahomed v Morris Peter Gibson LJ, referring in terms to the “minded to refuse” procedure, said (transcript, paragraph 2) that “[t]he application is dealt with by a single Lord Justice on paper and is supported by a skeleton argument”. But in any case it cannot constitute a decisive factor in this debate. With or without a skeleton argument (whose utility is certainly undoubted) the judge makes a decision knowing what the issues are, seeing the papers from the lower court, and having carefully read the judgment of the court below.

In these circumstances it seems to me that this case is on all fours with Mahomed v Morris subject only to the fact that Mahomed was decided before 2 October 2000 when the principal provisions of the HRA came into force.

(2) Oral Renewal of Application for Permission to Appeal

I understand Miss O’Rourke to accept that no objection on apparent bias grounds could be taken to a Lord Justice sitting (alone or with one or two others) in court on the applicant’s restored application for permission to appeal, being the judge who had refused permission on the papers. I find it very difficult to see how that state of affairs is unobjectionable, if the scenario in the present case (and in Mahomed) is objectionable. I respectfully agree with what was said by Schiemann LJ in Mahomed at paragraph 12, which I repeat for convenience: “… this position seems to me to be wholly illogical. If there is any force in Miss Newman’s point, it must equally apply to the oral hearing of the permission to appeal application”. This is not, of course, necessarily fatal to Miss O’Rourke’s argument; it may be she should have submitted that the position of the first judge sitting on the renewed application is just as insupportable as his sitting on the substantive appeal. But it is by no means infrequent that the first judge changes his mind on the renewed application, and sometimes where there is no new material; he is persuaded by the oral argument.

(3) Nature of the Apparent Bias Alleged

In his written and oral submissions Mr Pollock drew attention to a distinction, whose validity as a distinction is not I think disputed, between two types of putative bias. The first is where the judge is on the facts subject to extraneous influences such as a financial interest in the case’s outcome or a personal connection with one of the parties. In those situations, as a general rule there is no need to show that the judge is actually influenced by such considerations; the suspicions of the parties and the public that he may be so influenced, even unconsciously, are reasonable, cannot be allayed, and the judge must stand down. The second situation is where, absent any extraneous influence, there is an apprehension that the judge will approach the case with a closed mind. Here there is no brightline rule, like the presence or absence of a financial interest, which will tell the judge whether or not he must stand down.

Such an apprehension of a closed mind on the judge’s part will only arise in reality where it is said that he has pre-judged the issue, and in consequence it is reasonably feared that he cannot or will not revisit the issue with an open mind.

(4) When Such Apparent Bias is Justifiably Apprehended

I accept that there will be some circumstances where such a fear would certainly be reasonable. If a judge has presided at a first instance trial and roundly concluded on the facts – after hearing disputed, perhaps hotly disputed, evidence – that one of the parties lacks all merit, everyone would accept that it would be unthinkable that he should sit on that party’s appeal. He has committed himself to a view of the facts which he himself had the responsibility to decide. This is the kind of circumstance referred to in the High Court of Australia in Livesey. It is also, I think, at least comparable with the state of affairs that arose in Hauschildt.

In some such cases the judge’s inability to open his mind on the appeal would be not just apparent, but real: if after a careful and professional review of all the evidence, given by witnesses whom, so to speak, he has looked in the face, he has arrived at the conviction that the party in question is a crook or a rogue, guilty as charged (whether the case is criminal or civil), he might not conscientiously be able to put himself back into a state of mind where he has no preconceptions about the merits of the case.

There may also be cases, though one hopes there will not be, in which a judge called on to make a preliminary decision expresses himself in such vituperative language that any reasonable person will regard him as disqualified from taking a fair view of the case if he is called on to revisit it.

(5) The Ordinary Case

But the ordinary case is far from those instances. It is of the kind that has happened here: the judge in question has not himself had to resolve the case’s factual merits, and has not expressed himself incontinently. All he has done is to conclude on the material before him that the result arrived at in the court below was correct. And he has done so in the knowledge that, at the option of the applicant, his view may be reconsidered at an oral hearing. In such a case is there a reasonable basis for supposing that he may not bring an open mind to bear on the substantive appeal if, after permission granted by another judge, he is a member of the court constituted to deal with it?

I consider, in line with a submission made by Mr Pollock, that an affirmative answer to this question would travel beyond whatever is the perception of our courts and judges that may be entertained by the fair-minded and informed observer, whoever he may be. It is not only lawyers and judges who in various states of affairs may be invited – they may invite themselves – to change their minds. Absent special circumstances a readiness to change one’s mind upon some issue, whether upon new information or simply on further reflection, and to change it from a previously declared position, is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis. It is surely a commonplace of all the professions, indeed of the experience of all thinking men and women.

(6) Who is the fair-minded and informed observer?

Our fair-minded and informed observer must surely have these matters in mind. That does not turn him into a notional lawyer. It merely reflects his fair-mindedness. However much we may in the name of public confidence be prepared to clothe our observer with a veil of ignorance, surely we should not attribute to him so pessimistic a view of his fellow-man’s own fair-mindedness as to make him suppose that the latter cannot or may not change his mind when faced with a rational basis for doing so. That is, I think, what this case involves: not merely the ascription to the notional bystander of a putative opinion about the thought-processes of a judge, but the ascription of a view about how any thinking, reasonable person might conduct himself or herself when, in a professional setting, he or she is asked to depart from an earlier expressed opinion. The view which Miss O’Rourke submits should be ascribed to the bystander does much less than justice, I think, to the ordinary capacities of such a person. In my judgment, therefore, it is not a view which the fair-minded and informed observer would entertain.

(7) The Adversarial System and the Legal Culture

As I have indicated (paragraph 9) Miss O’Rourke accepts that the bystander may be taken to possess “some knowledge of legal culture”. He would know of the central place accorded to oral argument in our common law adversarial system. This I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it. Knowledge of it should, in my judgment, be attributed to the fair-minded and informed observer; otherwise the test for apparent bias is too far distant from reality. It is a commonplace for a hearing to start with a clear expression of view by the judge or judges, which may strongly favour one side; it would not cross the mind of counsel on the other side then to suggest that the judge should recuse himself; rather, he knows where he is, and the position he has to meet. He often meets it.

Another aspect of our legal culture is the expectations which the judges have of each other. Far from supposing that his fellow-judge would or might stand by an earlier view for no other reason that he had formed it, any judge would positively expect that his fellow would without cavil alter his view if he were objectively persuaded that it ought to be altered; and, to be blunt, would think much the worse of him if he would not. This too, it seems to me, would be known to the bystander.

(8) The Result

In all these circumstances I would hold that the application for my recusal is not well-founded, and I would dismiss it.

Lord Justice Jonathan Parker:

I agree.

Lord Justice Keene:

I agree that the change brought about by the Civil Procedure Rules in the procedural regime for applications for permission to appeal is not of significance on the present issue, for the reasons given by Laws LJ at para. 25. That means that the Court of Appeal decision in Mahomed v. Morris (ante) is of particular relevance for present purposes, even though it predates the coming into operation of the Civil Procedure Rules. It might be thought that that is sufficient to determine this application.

However, since that decision the Human Rights Act, 1998 has come into force, and there can be no doubt that the appellant’s right under Article 6(1) to a hearing by “an independent and impartial tribunal” is engaged. That in turn requires this court, by reason of section 2(1) of that Act, to take into account the Strasbourg jurisprudence on this topic, and it merits therefore a fresh look at the issue. The principal decisions by the European Court of Human Rights have been set out by Laws LJ and there is no need for me to repeat the details he has already given. It is clear that those decisions emphasise the need for “objective” impartiality as seen by an observer, so that justice may be seen to be done: see, for example, Hauschildt at para. 46 and De Cubbber at para. 26. I fully accept that, as was said in Hauschildt, para.48, one of the important objectives is to maintain public confidence in the system of justice. So far, none of this is truly new to the English jurisprudence on the subject of bias and there is no distinction to be drawn between the domestic concept of a “fair-minded and informed observer” and that of an “objective” test of impartiality: see Porter v. Magill, para. 103, per Lord Hope of Craighead.

What cases like Hauschildt do bring out is the need to see whether a judge is in reality having to decide the same question on which he has previously reached a determination: see para. 52 thereof. Initially, it seemed to me that it could be argued with some force that that was the situation which existed in the circumstances which this court is having to address. The decision in Thomann v. Switzerland could be explained on the basis that there the first trial was conducted in absentia, so that the court had not heard the defendant’s side of the case at that stage, whereas on the retrial the court would be hearing his evidence and would therefore be dealing with a new factual situation. The same could not be said, at least not to the same degree, about the Court of Appeal procedure in England and Wales, where the single Lord Justice has considered on the papers the essential arguments being advanced on behalf of the applicant for permission to appeal and which would be advanced at any substantive appeal hearing.

However, on further consideration I have concluded that the nature of the decision being made by the single Lord Justice at that stage is sufficiently different from that required on the hearing of the substantive appeal for any allegation of an appearance of bias to be seen as unfounded. When making a decision on the papers whether or not to grant permission to appeal, the single Lord Justice is well aware that, though his decision may prove to be final, there exists the opportunity for the applicant to renew his application orally in open court. In other words, if the decision on the papers is not accepted, it can be reconsidered. In that sense, it remains, despite the change in the wording of the procedural rules, a potentially provisional decision.

This is borne out by the fact that none of the parties appearing before us on this application seeks to suggest that the same judge should not hear the oral argument on any renewed application for permission to appeal. This is a recognition that he is to be seen objectively as still having a sufficiently open mind at that stage to be able to act impartially. If that is so, then how can it be that a judge who refuses permission on the papers and then has no further contact with the case until the substantive appeal hearing is to be seen as having a closed mind and lacking the requisite impartiality?

One important factor which exists both at a renewed application hearing and at a substantive appeal hearing is the benefit enjoyed by the court of listening to oral argument. This is a fundamental part of our system of justice and it is a process which as a matter of common experience can be markedly more effective than written argument. It will be evident from what has been said earlier in this judgment that, before hearing oral argument in this case, I had some considerable sympathy for the applicant’s arguments. The process of oral debate has persuaded me that those arguments are unsound. I mention this simply as one example of the impact which oral submissions may have under our system on the decision-making process. Yet it is a feature absent from the process by which the decision by the single judge on the papers is arrived at. This too seems to me to be a significant distinction between that decision and the subsequent one which the full court is called upon to make on the substantive appeal.

I am conscious that in stressing these differences I am drawing on my own experience as a judge, whereas one is concerned for present purposes with the way in which a fair-minded and informed observer would regard these procedures. It is not easy for a professional judge to put himself or herself in the position of an ordinary litigant or member of the public who does not possess such insight into and experience of the judicial decision-making process. Yet that is what has to be done if proper regard is to be had for the need to maintain public confidence in our procedures. However, the application before us postulates that the fair-minded and informed observer knows of the refusal of permission on the papers, since that is the very foundation of the allegation of bias. Such an observer must also be taken to know that such a refusal is not the end of the road, because the matter has progressed to a full appeal hearing, and it is therefore to be assumed that an observer who is indeed “informed” is conscious of the sequence of procedures between the initial lodging of the written Appellant’s Notice seeking permission to appeal and the substantive appeal hearing. That degree of knowledge is sufficient for him to conclude that there is no real possibility of bias, because it is the existence and nature of those procedural stages which, to my mind, lead properly to the conclusion that the judge in question still retains an open mind at the substantive appeal hearing. An uninformed observer might think differently, but no system can guard itself against criticism by the uninformed, nor does it need to adapt itself in what would be a vain attempt to deflect such criticism.

I therefore conclude that there is no basis for regarding Laws LJ as other than an impartial tribunal for the purposes of this appeal and I too would dismiss this application.

Order: The Application that Laws LJ recuse himself from sitting on the appeal is refused; the costs of the appellants and the respondents, to include the GMC, be reserved to the court hearing the substantive appeal; the advocate to the court and the intervener to bear their own costs.

(Order does not form part of the approved judgment)