ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE FOSKETT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LADY JUSTICE BLACK
| The Queen (on the application of Darsho Kaur)
||Claimant / Appellant
|- and -
|(1) Institute of Legal Executives Appeal Tribunal
(2) The Institute of Legal Executives
|Defendants / Respondents
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Mr Gregory Treverton-Jones QC and Mr Kevin McCartney (instructed by Russell-Cooke LLP) for the Respondents
Hearing dates : Friday 15th July 2011
Crown Copyright ©
Lord Justice Rix :
ILEX and its regulatory regime
"3.4 To promote and secure professional standards of conduct amongst Fellows and those who are registered with ILEX, and regulate Fellows and Registered Persons in the public interest and to ensure compliance with those standards."
The leading cases on apparent bias
"No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern; but my Lords, it is of the last importance that the maxim that no man is to be judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest."
Therefore the decision of the House of Lords in Pinochet No 1  1 AC 61 was set aside.
"Can it make a difference that, instead of being a direct member of A.I., Lord Hoffmann is a director of A.I.C.L., that is of a company which is wholly controlled by A.I. and is carrying on much of its work? Surely not. The substance of the matter is that A.I., A.I.L. and A.I.C.L. are all various parts of an entity or movement working in different fields towards the same goals. If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart C.J.'s famous dictum is to be observed: it is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done:" see Rex v. Sussex Justices, Ex parte McCarthy  1 KB 256, 259.
"It follows that A.I., A.I.L and A.I.C.L. can together be described as being, in practical terms, one organisation, of which A.I.C.L. forms part. The effect for present purposes is that Lord Hoffmann, as chairperson of one member of that organisation, A.I.C.L., is so closely associated with another member of that organisation, A.I., that he can properly be said to have an interest in the outcome of proceedings to which A.I. has become party…
It is important to observe that this conclusion is, in my opinion, in no way dependent on Lord Hoffmann personally holding any view, or having any objective, regarding the question whether Senator Pinochet should be extradicted, nor is it dependent on any bias or apparent bias on his part…"
" The rule of law requires that judicial tribunals established to resolve issues arising between citizen and citizen, or between the citizen and the state, should be independent and impartial. This means that such tribunals should be in a position to decide such issues on their legal and factual merits as they appear to the tribunal, uninfluenced by any interest, association or pressure extraneous to the case. Thus a judge will be disqualified from hearing a case (whether sitting alone, or as a member of a multiple tribunal) if he or she has a personal interest which is not negligible in the outcome, or is a friend or relation of a party or a witness, or is disabled by personal experience from bringing an objective judgment to bear on the case in question. Where a feature of this kind is present, the case is usually categorised as one of actual bias. But the expression is not a happy one, since bias suggests malignity or overt partiality, which is rarely present. What disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge's judgment.
 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…It has however been accepted 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."
Lord Bingham then went on to restate Lord Hope's definition from Porter v. Magill as the correct formulation of the correct test.
The problem of professional self-regulation
"…Ms Nathan would be a judge in her own cause. This would also be a situation of apparent bias for, although it was accepted that she had taken no part in the particular decision of the PCCC to prosecute the Appellant and that there was no actual bias on her part, there was nevertheless a real apprehension or danger or possibility or suspicion of bias by reason of her membership of the PCCC."
A similar submission was made in respect of a member of the disciplinary tribunal below, a Mr Richard Groom, because he too was a lay member of the PCCC (para 8). Those submissions were upheld.
"89. The decision by the PCCC to institute proceedings against a barrister thus imposes upon the PCCC as agent for the Bar Council a duty to prosecute that person and, consistently with the applicable procedure, to present the case against the barrister in a manner designed to procure conviction. Whereas it is undoubtedly true that the proceedings in which the charges are prosecuted must be fairly and justly conducted, those representing the Bar Council have a duty as its agents to procure conviction or in the case of appeals before Visitors to defeat an appeal. They do not have the function of a neutral amicus. Their interest is conviction or dismissal of appeals…
92. In considering whether a lay representative on a Visitors Panel shares the interest of the PCCC, of which that person is a member, in the appeal being dismissed, an analysis of the quality of that particular member's ability to maintain objectivity is nothing to the point. Nobody called in question Lord Hoffmann's personal ability to be objective and impartial. Nor, in our judgment, does the fact that the purpose of including lay representatives on the PCCC and as members of the Visitors panel, have the effect of insulating such persons from having the appearance of sharing the interest of the PCCC as a prosecutor. Lord Hoffmann's judicial oath could provide no such insulation. Nor do we find that a lay representative's non-participation in meetings relating to the prosecution in question, cuts off that person from the responsibility which, as a member of the PCCC, that lay representative bears together with its other members for taking forward and facilitating the prosecution. Lord Hoffmann was not a decision-taker at either Amnesty International or AICL with regard to participation in the proceedings….
107…Accordingly, the perception of impartiality is to be based on that which is open to view and not on facts which would be hidden from an outside fair-minded observer.
108. If therefore one assumes that the scope of the hypothetical fair-minded observer's knowledge is confined to the Code of Conduct of the Bar, the Disciplinary Tribunal Regulations, the Complaints Rules and the Hearings before the Visitors Rules and does not extend to the methods of selection of the members of the PCCC or, except in so far as they should not have attended the relevant meeting of the PCCC, the Visitors panels or to the attendance records of lay representatives at meetings of the PCCC, we consider that even taking account of the high calibre of lay representatives generally and of their function in representing the public interest, there would be a perception to the fair-minded observer of a real possibility of subconscious lack of impartiality by reason of exposure to influence by such prosecuting policies as might exist amongst PCCC members generally."
"Following consultation with ILEX members, IPS revised the rules governing how allegations about the conduct of members [are] investigated and disciplinary proceedings are brought.
The main driver behind the need for the revisions was that members of the ILEX Council served on the various committees and tribunals considering complaints. This no longer happens: the dual role was inconsistent with the requirement for complete separation of regulatory and representative functions. We also took the opportunity to draw on good practice among modern regulators, and to edit away a good deal of verbiage which had become redundant over the years."
The new rules coincided with the coming into force of the relevant provisions of the Legal Services Act 2007.
Some further jurisprudence
" The decision of the House of Lords in the Pinochet (No 2) case 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."
"…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."
" The question is whether it can be said, simply because of his membership of the Bar Association, that Mr Arnold could be identified in some way with the prosecution of the complaints that the Association was presenting to the tribunal so that it could be said that he was in effect acting as a judge in his own cause. Only if that proposition could be made good could it be said, on this highly technical ground, that he was automatically disqualified. Their Lordships are not persuaded that the facts lead to this conclusion. Leaving the bare fact of his membership on one side, it is clear that Mr Arnold's detachment from the cause that the Bar Association was seeking to promote was complete. He had taken no part in the decisions which had led to the making of the complaints, and had no power to influence the decision either way as to whether or not they should be brought. In that situation his membership of the Bar Association was in reality of no consequence. It did not connect him in any substantial or meaningful way with the issues that the tribunal had to decide. As Professor David Feldman has observed, the normal approach to automatic disqualification is that mere membership of an association by which proceedings are brought does not disqualify, but active involvement in the institution of the particular proceedings does: English Public aw (2004), para 15-76, citing Leeson v Council of Medical Education and Registration (1889) 43 Ch D 366 where mere membership of the committee of the Medical Defence Union was held not to be sufficient to disqualify and Allinson v General Council of Medical Education and Registration  1 QB 750 where mere ex officio membership of the committee of the Medical Defence Union too was held to be insufficient. The same contrast between active involvement in the affairs of an association and mere membership is drawn by Shetreet, Judges on Trial (1976), p 310. Their Lordships are of the opinion that the principle of automatic disqualification does not apply in this case."
"…Lord Bingham of Cornhill doubted whether it was ever in contemplation that "employed Crown prosecutors would sit as jurors in prosecutions brought by their own authority". In this sentence he was directly addressing the problem of those employed to prosecute, rather than all employees of the Crown Prosecution Service. However, he continued:
"It is my opinion clear that justice is not seen to be done if one discharging the very important neutral role of juror is a full-time salaried, long-serving employee of the prosecutor."
This observation demonstrates that his concerns extended beyond those who act as advocates to prosecute in court, but that they did not necessarily extend to every CPS employee.
 Baroness Hale referred to the problem described in R v Bow Street Metropolitan Stipendiary Magistrates, ex parte Pinochet (No 2)  1 AC 119, which might arise from the involvement in the exercise of judicial responsibilities of those who were "promoting the same causes in the same organisation as a party to the suit". She considered it inconceivable that the Director of Public Prosecutions could sit as a juror in a case prosecuted by the CPS. She added:
"The same must apply to a CPS lawyer, who is employed to decide upon whether or not to prosecute and to conduct the prosecutions decided upon."
This observation coincides exactly with the first observation made by Lord Bingham. Baroness Hale then approached the position of other CPS employees who had a more peripheral role than a CPS lawyer by acknowledging that one could imagine that the prohibition on jury service
"might not apply to temporary or short-term employees in junior positions unless the prosecution were brought by the office in which they served. There would, of course, be no objection to CPS lawyers or other employees serving on juries in prosecutions brought by other persons or authorities. This view is consistent with Parliament lifting the ban upon members of the DPP's staff serving on juries, while leaving intact the common law and Convention rules against bias.""
" In our view it is clear from the observations of Lord Bingham of Cornhill and Baroness Hale of Richmond, and it would be inconsistent with the current legislative arrangements, for every employee of the CPS to be or to be regarded as excused or disqualified from service on a jury in a trial prosecuted by the CPS. In principle the position of an individual employee of the CPS is fact- and employment- specific, rather than subject to an all-embracing embargo.
 We therefore address the facts which we have already summarised. The employee of the CPS who served on the jury cannot be described as a temporary employee of the CPS. She had worked full-time for the CPS for no less than nine years…In our judgment her service was long enough and of sufficient importance to lead to the conclusion that she fell within the ambit of the prohibition identified by Lord Bingham and Baroness Hale in accordance with the principle which we have described. We also note that she was sitting in contravention of the guidance now issued by the CPS."
The judgment below
"In reaching its decision the Panel commented that it was inconceivable that any of the malpractice could have taken place had it not been for, at worst the active connivance of individuals at the examination centre, or at best the failure to supervise and invigilate the examinations properly. The Panel took the view that it should draw the attention of the ILEX senior management team to the matters in another forum outside of the proceedings."
Mr Beaumont raised the question of whether any report had been brought into existence about such matters. He also observed that in June 2009, that is to say between the hearings of the DT and IAT respectively, the law college concerned had lost its ILEX accreditation. It was to be inferred that Miss Gordon-Nicholls as vice-president must have been involved or aware of such matters.
"no person shall be nominated to serve on a Tribunal if they are a member of the PCC or of the Bar Council or any of its other Committees or if they were a member of the PCC at any time when the matter was considered by the PCC" .
Prior to October 2005 this exclusion was not dealt with expressly in the regulations. The prior regulation 2(1)(1)(ii) had merely provided that –
"no Barrister or Lay Representative shall be nominated to serve on a Tribunal which is to consider a charge arising in respect of any matter considered at any meeting of the PCC which he attended."
However, there was no requirement that a member of the Bar Council or its chairman or vice-chairman sit on any disciplinary tribunal, and it is believed that in practice no such thing had occurred, at any rate for some time. That would have been in at any rate practical accord with the requirements of the Law Society's regime, which were noted in P at para 51 as follows:
"On the Law Society website it is stated that the solicitor members of the Disciplinary Tribunal must not be members of the Council of the Law Society, although it is unclear from the material before us what is the source of this requirement. We observe that it is to be inferred that the main reason for this requirement is to ensure that these disciplinary decisions by the Tribunal are not taken by those who are connected in any way with the administrative and prosecuting machinery of the Law Society."
Lord Justice Sullivan :
Lady Justice Black :