ROYAL COURT
(Samedi Division)
14 May 1998
Before: Sir Philip Bailhache, Bailiff,
and
Jurats Gruchy, Le Ruez, Herbert,
de Veulle, Quérée, Le Brocq
Tibbo, and Bullen
In the matter of the Representation of the Bâtonnier
re: Advocate Philip Cowan Sinel ( the Respondent)
Application by the Respondent for the recusal of the Bailiff, on the grounds of appearance of bias.
Advocate A J Olsen for the Bâtonnier
Advocate DF Le Quesne for the Respondent
AG
JUDGMENT
THE BAILIFF: This is a challenge to my presiding over the Superior Number, sitting in a disciplinary capacity, to consider a Representation of the Bâtonnier concerning the conduct of Advocate Philip Cowan Sinel. The challenge was initially made ex parte by letter of the 23 April 1998, in the following terms:
"I enclose my answer in relation to the above matter, and in particular of the answer today filed by me. The purpose of this letter is to ask you to recuse yourself from hearing this matter, which is presently due to be heard before the Royal Court (Superior Number) on 14 May 1998. It is not necessary for me, in this letter, to put forward all the grounds upon which I could request your recusal; it is not necessary because you will have noted from the pleadings that the question of whether or not I should receive credits for my representation of Senator Syvret, is in issue in the proceedings. Additionally, I am of course prosecuting those proceedings against yourself and the learned Deputy Bailiff. Under the circumstances, your continued involvement would give rise to an appearance of bias. I would be grateful if you would be kind enough to indicate by return whether or not you are prepared to recuse yourself on the basis of this ex parte application to you, which is made in Chambers, or whether or not it will be necessary for me to raise this matter as a preliminary issue before the Superior Number, which would obviously be the only further option."
On the 30 April 1998, my secretary replied to Advocate Sinel indicating that I would need to hear argument in open court.
Mr Le Quesne, on behalf of Advocate Sinel has accordingly renewed that challenge in open court. The basis of the challenge now made is that, unless I were to disqualify myself from presiding, there would be an appearance of bias. The challenge is supported neither by the Attorney General, nor by Counsel for the Bâtonnier.
The legal position in England was recently the subject of exhaustive analysis by the House of Lords in R-v- Gough (1993) AC 646. That decision was followed and explained further by the English Court of Appeal in R -v- Inner West London Coroner (ex parte Dallaglio) & Anor. (1994) 4 All ER 139. In a useful passage Sir Thomas Bingham, MR, set out the relevant test in these terms:
"The third class comprises cases in which there is no actual bias, and no direct pecuniary interest giving rise to a presumption of bias. It was the bounds of this third class which were in issue in Gough. The House of Lords was there called upon to choose between two tests for inclusion in this class, both of the rival tests finding support in authority. One test was whether a reasonable and fair minded person sitting in the Court and knowing all the relevant facts, would have had a reasonable suspicion that a fair trial was not possible because of bias on the part of the decision-maker; the second was whether there was a real likelihood or danger of bias. The House of Lords unanimously upheld the second of these tests, expressed in terms of real danger, to make clear that it is possibilities, not probabilities, which matter. This decision shows, as it seems to me, that the description "apparent bias" traditionally given to this head of bias, is not entirely apt, for if despite the appearance of bias the Court is able to examine all the relevant material and satisfy itself that there was no danger of the alleged bias having in fact caused injustice, the impugned decision will be allowed to stand. The famous aphorism of Lord Hewart, CJ in R -v- Sussex Justices ex parte Mc Carthy (1924) 1 KB 256 at 259; (1923) All ER 233 at 234, that "justice… should manifestly and undoubtedly be seen to be done", is no longer - it seems - good law, save, of course, in the case where the appearance of bias is such as to show a real danger of bias. In the present case, the courts task is to ascertain the relevant circumstances and ask itself whether, having regard to these circumstances, there was a real danger of bias on the part of H.M Coroner for Inner West London, in the sense that he might have unfairly regarded with disfavour the cases of the applicants as parties to an issue under consideration by him."
Mr Le Quesne argued that, because Advocate Sinel represented Senator Stuart Syvret in an action brought by the Senator against the Deputy Bailiff and myself, it would clearly appear to the public that there was a possibility of bias where Advocate Sinel was himself the subject of disciplinary proceedings. It was submitted that I should look at the matter through the eyes of an ill-disposed person and that such a person might well think that I had something to gain from a decision adverse to Advocate Sinel. It was said that a decision to suspend or disbar Advocate Sinel would prevent Senator Syvret from pursuing his action, and that might have a pecuniary advantage for me, in that I would not be at risk of an order to pay costs. Furthermore, such an action, if pursued, might adversely affect my reputation or career.
These arguments, in my judgment, float in the realm of fantasy. It is clear on the authorities that I have to look at the matter, not through the eyes of an ill-disposed person, but through the eyes of a reasonable and fair-minded individual. I am not at risk in relation to the costs of the Senator’s action because, as is customary when a public officer is sued for alleged misconduct arising out of his public duties, any costs will be met out of public funds. In fact the current status of Senator Syvrets action is that it has been struck out, as being frivolous or vexatious or disclosing no reasonable cause of action, although, of course, it is open to him to seek leave to appeal.
More importantly, Mr Le Quesne informed me that the contentions of the Bâtonnier and of the Attorney General are not to be contested, and that Advocate Sinel will apologise for his failure to comply with the directions of the Bâtonnier to represent individuals under the legal aid scheme. That being so, the only remaining issue before the Superior Number is what, if any, penalty should be imposed. That is, prima facie, a matter for the Jurats, and I have a say on that matter only if the Jurats are divided.
The submission, therefore, amounts to a contention that the reasonable and fair- minded person might perceive a risk, in all the circumstances, of my succeeding in influencing eight Jurats of the Royal Court, to the detriment of Advocate Sinel. I reject that submission, and decline to disqualify myself from presiding over this hearing.
Authorities
Mayo Associates SA -v- Cantrade Private Bank Switzerland (CI) Ltd (1 December 1997,) Jersey Unreported
Mayo Associates SA -v- Anagram (Bermuda) Ltd (21 January 1998,) Jersey Unreported
Drew -v- Attorney General (1994) JLR 1 CofA
R -v- Gough (1993) AC 646
R -v- Inner West London Coroner (ex parte Dallaglio) (1994) 4 All ER 139 CA