England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 June 2014

Mr Justice Warby:

1. On this appeal by Dr Kofi Adu pursuant to s 40 of the Medical Act 1983 ("the 1983 Act") Dr Adu challenges determinations made by a Fitness to Practise Panel ("FTPP") of the Medical Practitioners Tribunal Service of the General Medical Council ("GMC") under s 35D of the 1983 Act. The FTPP, having heard evidence and submissions over a total of 13 days in May and December 2013, found that Dr Adu's fitness to practise was impaired by reason of deficient professional performance and that, in consequence, his name should be erased from the medical register. The medical speciality in which Dr Adu practised was paediatrics.
2. Dr Adu represents himself on the appeal, as he did before the FTPP. In the Grounds of Appeal attached to his Appellant's Notice he asserted that "the tribunal's decision was against the weight of the evidence" and that "the evidence was not strong enough so the tribunal's decision warrants a re-trial". In a subsequent Skeleton Argument, however, he advanced some slightly more detailed grounds and arguments which fell under two broad headings: (1) that he did not receive a fair hearing before the FTPP and (2) that the sanction imposed was manifestly excessive.
3. The appeal was listed to be heard by me on 12 and 13 June 2014. On 12 June, after hearing argument from Dr Adu and Ms White for the GMC, I decided that I should recuse myself. I adjourned the hearing of the appeal to a date to be fixed on or after 7 October 2014, that being the soonest it could be heard. At the same time I gave directions requiring clarification of Dr Adu's case. I stated that I would give my reasons for recusing myself later in writing. These are those reasons.
4. The issue arose in the following way. Among the grounds on which Dr Adu complains that the hearing before the FTPP was unfair is a point which he puts in this way in his written Skeleton Argument dated 31 January 2014: "The Legal Assessor made a disclosure which indicated actual or potential bias and which should have resulted in him recusing himself from that position in the hearing." The starting point for that complaint appears from the transcript of the first day of the hearing, 8 May 2013, which records that the Legal Assessor disclosed to the FTPP and the parties some matters about health problems encountered by one of his children, and questions or concerns that arose about the medical care that child received. The purpose of this disclosure evidently was to ensure that an opportunity existed for Dr Adu to argue that, or for the Panel to determine whether, the facts disclosed called into question the Legal Assessor's impartiality when it came to issues of competence regarding paediatric care, so that he should recuse himself.
5. That disclosure having been made, the FTPP heard submissions from Counsel for the GMC and from Dr Adu, and determined that the circumstances were not such that the Assessor should recuse himself. It gave a reasoned ruling on that issue, referring to authority and in particular R (Compton) v Wiltshire Primary Care Trust (No 2) [2009] EWHC 1824 (Admin); [2010] P.T.S.R. (C.S.). In Compton, Cranston J held that the bias of advisers was capable of vitiating a decision when there was a real possibility that it had adversely infected the views of the decision-maker, and gave guidance on the factors that should be considered where such an issue arose. The FTPP then proceeded to hear the case, receiving and relying on advice from the Legal Assessor. Dr Adu's case on the present appeal includes the complaint that this decision of the FTPP was wrong, that the Assessor should have stood down, and the fact that he did not do so led to a hearing which was, or appeared to be, biased against Dr Adu.
6. On 11 June, when I began reading into the papers in preparation for the hearing, it appeared to me that this was, logically, the first issue for resolution on the appeal. On any view it was an important issue in the appeal. It also became apparent that the Legal Assessor whose actual or apparent impartiality was being questioned by Dr Adu was a person well known to me as a fellow member of the set of barristers' chambers of which I was until very recently a member. I therefore took the following steps.
7. Before and at the hearing on 12 June I disclosed to the parties the chambers connection between me and the Legal Assessor, and the following additional information. The Legal Assessor and I were fellow members of those chambers for some 20 years. That professional relationship only ended in the week commencing 2 June 2014. We have however a continuing professional relationship to this extent: I am editing a textbook to which he is a contributor and in that connection we remain in contact. We have had some social contact also, over the years, arising from our membership of chambers.
8. At the hearing on 12 June I took steps to ensure that Dr Adu understood not only these facts but also that he had a right to advance objections to my sitting on this appeal on those grounds, which I would hear and determine if he advanced them. I advised Dr Adu of the threshold test for apparent bias to which I refer below and warned that if he did not raise objection then he would not be able to complain later of the matter disclosed as giving rise to a real possibility of bias. I gave him time to consider his position. He decided to object.
9. The legal principles are clear. A litigant is entitled to a hearing which is and is seen to be fair. That means, among other things, that the Court or tribunal deciding the case should be and be seen to be impartial, that is to say, lacking in actual or apparent bias. The question that arose in relation to my own position was whether there would be apparent bias. In determining whether there is apparent bias on the part of a Court or tribunal the test is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the Court or tribunal was biased. This is the test authoritatively laid down by the House of Lords in Porter v Magill [2002] 2 AC 357, where the House considered earlier authority including R v Gough [1993] AC 646, and concluded that a "modest adjustment" should be made to the tests previously identified: see Porter at [99-103]. This is the test that I identified to Dr Adu as the one that I would apply. It is an objective test, depending on all the circumstances.
10. In the light of the facts disclosed by me and this legal test, Dr Adu submitted that I should recuse myself because of the length (and I think, by implication, the closeness) of the professional association between me and the Legal Assessor, coupled with the importance to Dr Adu's case of the complaint he makes about the Legal Assessor's role in his case. Dr Adu was concerned about the substance of what the Assessor disclosed, its actual or potential impact on the Assessor's approach, and about the fact that he did not get to know about it until a relatively late stage. He told me that he believes that the personal matter which was disclosed by the Assessor influenced the Assessor's approach which in turn had an effect on the outcome of the case. Dr Adu said that even if he could not demonstrate this to be the case, he "could not exclude doubts" about it.
11. Ms White, for the GMC, submitted that on the basis of the facts disclosed by me the test for apparent bias was not satisfied. It was not possible, she argued, that a fair-minded and informed observer having considered those facts would conclude that there was a real possibility of bias on my part in this case. Ms White did say, however, that it might make a difference if Dr Adu was, so far as the Legal Assessor was concerned, making a case that went beyond apparent bias and included a contention of actual bias. This, I believe, was on the footing that I could more readily be seen to be at risk of partiality if I were deciding a case where actual rather than merely apparent bias was being alleged. Ms White submitted that Dr Adu had never identified any evidential basis for a case of actual bias. When I pressed him to make clear his position on this issue, Dr Adu failed to make plain to me quite what that position was. However, although he did not, when given the opportunity, identify for me any passage in the transcript of the proceedings or any other document on which he relied on as evidence of actual bias, I could not be confident that he was disavowing a case of actual bias by the Assessor. Indeed, I do not believe that he was.
12. With one reservation, Counsel for the GMC agreed that I could not allow any view as to the merits of Dr Adu's case about the Legal Assessor's impartiality, or lack of impartiality, to influence my decision on my own recusal. The reservation was that I should disregard any part of Dr Adu's case that was clearly without foundation. I was not convinced that I should take that approach. In any event, a real difficulty with that approach would have been that it would take some investigation. Dr Adu's case as currently stated in writing is brief, covering only 2 pages, and lacking in clarity and particularity. As I have said, he was unable to clarify his position adequately in answer to my questions. That is one reason why I gave directions for him to amplify and clarify his Skeleton Argument in several specific respects. Among the clarifications I required of him was a statement of whether he is advancing a case that the Assessor was actually biased and if so on what passages in the transcript he relies. It would in my judgment have been impractical to seek to extract this at the hearing, and the attempt would have involved a disproportionate use of valuable court time and resources.
13. I concluded that I should recuse myself for the following reasons. The Porter test is satisfied if the informed fair-minded observer would see a real possibility of bias. Whilst fanciful or tenuous objections must be disregarded, the threshold is not an especially high one. It is not necessary to show a likelihood of bias, or a real danger, for instance. Here, the issues for decision involve complaints of actual and/or apparent partiality against an individual with whom I have a long, reasonably close professional association, and an association which is continuing at present albeit in a limited context. Those complaints form a significant plank of the appellant's case, in an appeal which is concerned with his right to work as a doctor and the public interest in ensuring that, if unfit to do so, he does not so work. If the complaint against the Assessor is, as it may be, one of actual bias then it seems clear to me that the links between me and the Assessor mean that I should not sit in judgment on the case. Even if the allegation made by Dr Adu is no graver than apparent bias in the FTPP proceedings I have concluded that the fair-minded observer knowing the relevant facts would see a possibility that, in applying what should be an objective test, I would bring to bear my subjective impressions of the individual's character and personality.
14. In the end, it was the combination of all the circumstances I have mentioned rather than any one of them by itself that led me, in this case, to recuse myself. If, however, there was one factor that weighed with me more than others it was the nature of the issues raised by this aspect of Dr Adu's appeal. If I had proceeded to hear and determine this appeal that would have involved me in ruling upon the propriety, or at least the apparent propriety, of the conduct as Legal Assessor of a person who is well known to me in the ways and contexts I have described above. The fair-minded observer, knowing those facts, would in my judgment conclude that there was a real possibility that I would approach my task with a predetermined view of whether a long-term associate would be biased, or could reasonably be seen as possibly biased.
15. The leading authority on the approach to be taken when questions of apparent bias arise in the present context is the well known case of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, where the Court of Appeal (Lord Bingham CJ, Lord Woolf MR and Scott V-C), hearing several appeals raising issues of bias, gave guidance as to the circumstances in which a Judge should recuse himself, and the procedures and the approach to be adopted, identifying a number of key principles. The approach I adopted in the present case was in accordance with that guidance and those principles. I refer in the paragraphs that follow to the points of greatest relevance from Locabail.
16. In Locabail, having referred at [2] to the fundamental importance of the right of everyone to a fair hearing before an impartial tribunal the Court went on at [16] to hold that:

"The most effective protection of that right is in practice afforded by a rule which provides for the disqualification of a judge, and the setting aside of a decision, if on examination of all the relevant circumstances the court concludes that there was a real danger (or possibility) of bias."

As appears from this passage the test for apparent bias that was being applied at the time of this decision was or included a "real danger of bias" test as laid down in some of the authorities prior to Porter v Magill, but this does not affect the points for which I refer to the judgment.

17. The Court referred at [20] to the professional or personal associations of former members of the Bar who sit as Judges, observing that:

"When members of the Bar are appointed to sit judicially, whether full-time or part-time, they may ordinarily be expected to know of any past or continuing professional or personal association which might impair or be thought to impair their judicial impartiality."

18. At [21] the Court gave this guidance on the procedure to be followed if such an association is identified:

"If, in any case not giving rise to automatic disqualification and not causing personal embarrassment to the judge, he or she is or becomes aware of any matter which could arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it."

That is the procedure that I followed in this case.

19. The Court next dealt with the approach to be taken by the Judge when an objection is raised:

"21 …. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance. We find force in observations of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union, 1999 (4) S.A. 147, 177, even though these observations were directed to the reasonable suspicion test:

"It follows from the foregoing that the correct approach to this

application for the recusal of members of this court is objective and

the onus of establishing it rests upon the applicant. The question is

whether a reasonable, objective and informed person would on the

correct facts reasonably apprehend that the judge has not or will not

bring an impartial mind to bear on the adjudication of the case, that

is a mind open to persuasion by the evidence and the submissions of

counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or

predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse

themselves. At the same time, it must never be forgotten that an

impartial judge is a fundamental prerequisite for a fair trial and a

judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial."

22. We also find great persuasive force in three extracts from Australian authority. Mason J., sitting in the High Court of Australia, said in In reJR.L., Exparte C.JL. (1986) 161 C.L.R. 342, 352:

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."

20. In reaching my conclusion in this case I was very conscious of the risk of being too ready to accede to an application for recusal, the drawbacks of which are clearly indicated by these passages.
21. At [25] the Court, whilst emphasising that every case must depend on its own facts, gave some non-exhaustive illustrations of factors that might or might not give rise to an appearance of bias. The following passage is relevant to the present case:

"By contrast, a real danger of bias might well be thought to arise if … the judge were closely acquainted with any member of the public involved in the case,"

22. The following observation, in the same paragraph, is also relevant here:

"The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be."

23. The converse must also apply: the more current or recent the event or circumstance relied on the stronger the objection will be, if other things are equal. This is a factor which weighed with me in reaching my decision in the present case.
24. Finally, whilst the passages cited at [19] above indicate that there is only one right answer to the question of whether in all the circumstances a Judge is bound to recuse himself on the grounds of apparent bias, the Court made clear at [25] that

"… if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal."

25. I reached my conclusion in this case with reluctance, as it was inevitable that it would lead to delay and additional cost. However, I am confident that it was the correct conclusion given the facts and considerations outlined above and the position adopted by Dr Adu. He was entitled to raise his objection and to have me determine it, and I have ruled that in the particular circumstances of this case his objection was well-founded.