COURT OF APPEAL (CIVIL DIVISION)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE KEENE
| Dr S SENGUPTA|
|- and -|
|(1) C N HOLMES|
(2) D R DEAN
(3) V DEAN
THE GENERAL MEDICAL COUNCIL
- and -
THE LORD CHANCELLOR OF ENGLAND, WALES & NORTHERN IRELAND
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Laws:
“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.”
“(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.
“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 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  2 WLR 37, at 83H – 84A.
“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.”
(2) The Domestic Cases
“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.
“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.”
“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
De Cubber v Belgium 7 EHRR 236
“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
“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
“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.”
“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’.”
“... 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.”
(4) Other Authority
“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.”
(1) The Change in the Rules
(2) Oral Renewal of Application for Permission to Appeal
(3) Nature of the Apparent Bias Alleged
(4) When Such Apparent Bias is Justifiably Apprehended
(5) The Ordinary Case
(6) Who is the fair-minded and informed observer?
(7) The Adversarial System and the Legal Culture
(8) The Result
Lord Justice Jonathan Parker:
Lord Justice Keene: