England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		1 July 2015

1. LORD JUSTICE BURNETT: The Appellant is former senior Crown Prosecutor with the CPS who brought two claims before the Employment Tribunal in December 2009 and April 2010 alleging 46 acts of direct sexual discrimination or harassment. The focus of the allegations, as I understand it, was her line manager, James O'Connell.

1. The Employment Tribunal was chaired by Judge Pearl. It heard evidence and argument over 29 days in 2011. It deliberated extensively thereafter in private and then produced its detailed lengthy judgment in April 2012. The Appellant was represented in those proceedings by a professional employment consultant who was, as I see in the papers, a former barrister. The Appellant lost comprehensively on the facts and is the subject of adverse findings relating to her good faith.
2. The appellant's notice seeks permission to appeal on four grounds, but Mr Jones QC who appears on behalf of the Appellant this morning presses only one. That is the ground relating to apparent bias of the Employment Tribunal.
3. I should note that permission to appeal was originally limited to that ground. Permission was refused by Langstaff J, the President of the EAT, with reasons stated in a letter of 12 July 2012. He considered that, on analysis, there was nothing in the bias ground.
4. Pursuant to rule 3(10) of the EAT rules, the matter was reconsidered by His Honour Judge Peter Clark. The procedure relevant for that reconsideration process will be familiar to those who practice in this field and is set out in the reserved judgment of the judge. He too refused permission. It is from that decision that this appeal is brought. On that occasion, the Appellant was represented by Mary O'Rourke QC.
5. Mr Jones has expressly indicated that the balance of the grounds are not pursued. I will dwell, therefore, only upon the bias ground.
6. Mr Jones relies upon a combination of circumstances surrounding the way in which this case was heard which, he submits, taken together satisfies the test for apparent bias. He points to what he describes as "relationships" between the CPS, its witnesses and the Tribunal. He identifies factors which relate to the way in which the parties were treated. Finally, he identifies material which he submits on its face shows favour towards the CPS.
7. Taking those in turn, first, the complaint is that various CPS individuals, including two with an involvement with the Appellant, are lay members of Employment Tribunals. Ann Crighton is a lay member of the London Central Employment Tribunal. That was the Tribunal which determined the Appellant's claims.
8. The Appellant accepts that Miss Crighton had no significant contact with either Judge Pearl or the lay members of the Tribunal. In a document produced for the purposes of the rule 3(10) proceedings, Judge Pearl indicated that he facilitated a members' induction day at London East. It appears that Miss Crighton attended that induction day, but the judge's statement suggests that he does not know her and does not believe that they have ever met. Miss Crighton did not give any oral evidence at the ET proceedings. She did feature in the documents and is referred to at two points in the course of the judgment.
9. Judge Clark concluded that the Tribunal members were unaware that Miss Crighton was a member of the Tribunal. Mr Jones objects that that conclusion does not necessarily flow from the observations of Judge Pearl himself. That said, there is no evidence that they were aware of her position, by contrast with the knowledge of the Appellant's representative and those who were supporting her claim.
10. In particular, Miss Bhardwaj, who was a witness, has provided a good deal of support to the Appellant. Miss Bhardwaj is very familiar with the position of Miss Crighton because Miss Crighton is an important player in the legal proceedings that Miss Bhardwaj herself has against the CPS.
11. Although Mr Jones has sought to persuade me that the references in the judgment of the Employment Tribunal suggest that Miss Crighton played a significant role in the underlying decision making process, I am unable to accept that submission.
12. The second person is called Safia Boot. She investigated the Appellant's grievances. She is a lay member of a different Employment Tribunal, something of which the Tribunal was plainly aware because it was referred to in her witness statement.
13. Mr Jones submits that the position of lay members from different tribunals and regions providing evidence in connection with Employment Tribunal proceedings is a matter which is worthy of investigation at a full appeal.
14. The third CPS employee referred to in the papers is Miss Haleema. She is a lay member of the London Central Employment Tribunal. She had nothing to do with the case whatsoever, but was known to at least one member of the panel.
15. I understand that Miss Haleema apparently attended the Employment Tribunal on one occasion and was seen to chat to Miss Bhardwaj. As I have said, Miss Bhardwaj is herself in dispute with the CPS in hotly contested litigation. One of the lay members, the lay member who knew Miss Haleema, considered that her attendance and communication with those involved in the proceedings was inappropriate.
16. The behaviour of the Tribunal which is relied upon is advanced in the context of what Mr Jones has described in his extremely helpful note as an atmosphere of "considerable hostility between the two sides". That, if I may say, shows a commendable tendency to understatement.
17. He explains that the Appellant was concerned about a single joking exchange between the judge and counsel for the CPS. He relies upon the fact that a year or so after the Employment Tribunal proceedings were completed, counsel asked the judge to provide a reference to the Judicial Appointments Commission in connection with an application to sit as a part time judge.
18. Finally, Mr Jones points to two features which he suggests indicates inappropriate behaviour tending to confirm apparent bias. First, the Employment Tribunal made a restricted reporting order which was overturned on appeal. Secondly, the Employment Tribunal considered Mr O'Connell's sexual orientation (he is apparently gay) as a relevant factor in the sexual harassment claim.
19. The key, as it seems to me, to this ground and indeed many arguments resting upon apparent bias, is to recognise that a litigant involved in the proceedings is not for these purposes to be regarded as the "fair minded and informed observer" referred to by Lord Hope at paragraph 103 in Porter v Magill [2002] 2 AC 357.
20. In Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, Lord Hope returned to the characteristics of the fair minded observer. They include that he is not unduly sensitive or suspicious, but he is not complacent. He is assumed to have taken the trouble to the acquire relevant knowledge about the issues and all of the relevant information.
21. I also remind myself that in both Locabail UK Ltd v Bayfield Properties [2000] QB 451 and AWG Group v Morrison [2006] EWCA Civ 6 the Court of Appeal indicated that ordinarily the answer in respect of a question of apparent bias would be obvious.
22. Furthermore, in Locabail at paragraph 25 the Court of Appeal very helpfully drew together a series of features which would not ordinarily give rise to arguments of apparent bias.
23. In my judgment, none of the circumstances relied upon by the Appellant, whether taken individually or cumulatively, could give rise to a realistic argument on apparent bias.
24. On the finding of the EAT, which, as it seems to me, in the absence of evidence to the contrary and by inference from what Judge Pearl actually said, the fact is that Miss Crighton was not known to the Tribunal and neither was her role as a lay member. These were very complicated proceedings factually which ranged over an enormous amount of territory. In truth, Miss Crighton's involvement was glancing and her integrity was not in question.
25. Similarly, Miss Boot was not known to the Tribunal. I do not consider it arguable that the fact that someone is a lay member of the Tribunal effectively disqualifies them from giving evidence in Employment Tribunals because otherwise there would be an apparent bias claim.
26. To my mind, the incident with Miss Haleema does no more than reflect what had become considerable sensitivity on the part at least of the lay member concerned, possibly endorsed by Judge Pearl. One gets the distinct impression that in the context of these proceedings everybody ended up walking on eggshells.
27. The joking exchange between counsel and the judge was, to my mind, of no consequence. I would say a little more about the reference point. No reasonably informed observer knowing how judicial appointments are made could read anything at all into the fact that after a long case one of the advocates identified the judge as a potential referee.
28. Furthermore, I am quite unable to see that the reference to Mr O'Connell's sexual orientation provides any support to a bias claim.
29. In harmony with all the judges who have considered this ground of appeal hitherto, I do not regard the overturning of the interlocutory appeal as providing any support either.
30. For these reasons, this renewed application for permission to appeal is refused.