THE MODERN APPROACH TO BIAS JAMES MAURICI, LANDMARK CHAMBERS INTRODUCTION In Magill v Porter [2002] 2 AC 357 the House

e of Lords finally laid to rest the Gough1 real danger of bias test by endorsing !ith "odifi#ation$ the for"ulation ado%ted by the Court of A%%eal in Re Medicaments (No. 2) [200&] & 'L( 700) *hus fro" no! on the +uestion !as whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased) *his brought the la! of ,ngland and 'ales into line !ith that of CanadaAustralia2 and .e! /ealand as !ell as 0#otland1 see Meerabux v A-G o !eli"e [2005] 2 AC 5&3) It also or so it has been held$ "eant there !as no differen#e bet!een the #o""on la! test of bias and the re+uire"ent for i"%artiality #ontained in Arti#le 2 of the Con3ention1 see the House of Lords de#ision in #a$al v Northern %&irit [2003] IC( 4525 All then should be !ell !ith the "odern a%%roa#h to bias but is not5 ,3en lea3ing aside any diffi#ulties that re"ain about ho! to a%%ly the Porter test there are t!o as%e#ts to the "odern a%%roa#h to bias !hi#h blight the la!1 o first- the abandon"ent of a 3ery i"%ortant distin#tion bet!een bias as the result of an interest be it finan#ial or other!ise$ and the notion of %re6 deter"ination5 o se#ond- the e7tension of the automatic disquali icatio! "#i!ci"l$ by the House of Lords in R v !o$ %treet Metro&olitan %ti&endiar' Magistrate( ex & Pinochet )garte (No. 2) [2000] & AC &&8 %&' PRE(DETERMINATION) *HAT *ENT *RON+, R * %+,R+-AR. /0 %-A-+( +1 P 23R2%-A## *A##+. -&../0 1 ALL ER 123

& 2

[&883] AC 292)

*he sour#e of the reasonable a%%rehension or sus%i#ion test1 see 4ebb v -he 5ueen &889$ &4& CL( 9&1 see further N$abue"e v GM, [2000] & 'L( &720 at &770A)

&

Although gi3en the date of this de#ision it !as see:ing to a%%ly the no! disfa3oured Gough test it is diffi#ult not to regard this #ase- at least in so"e !ays- as a ;uris%rudential high %oint for the "odern a%%roa#h to bias5

0edley <) obser3ed that the surrender by a decision-making body of its judgment i)e) %redeter"ination while it can be legitimately be described as a form of bias, is jurisprudentially a different thing from a disqualifying interest 3 held by a participant in the process see %) 3&8$) =et!een these t!o #on#e%ts- there !as said to be- a difference of kind and not merely of degree)

0edley <)>s ;udg"ent at 3&5# ? 330#$ #ontains a #o"%elling a##ount of the #ase6la! to su%%ort there being t!o distin#t %rin#i%les5 In 2ir6stall it !as argued by one of the %arties that the Gough test had no a%%li#ation !hate3er to lo#al authorities or indeed to the generality of decision-making bodies governed by the principles of public law ? e3en !here an interest !as in issue 6 but rather a%%lied only to those e7er#ising ;udi#ial fun#tions9) *his !as a bold argu"entand a bad one5

0edley <) referred to the de#ision in R v ,hester ield !,( ex & 7ar6er +nter&rises #td [&882] C@A 922 as illustrating the e7isten#e of t!o distin#t %rin#i%les in this #onte7t B

R v ,8+%-+R03+#7 !,( +1 P 7AR2+R +N-+RPR3%+% #-7 *his #ase #on#erned a rene!al of a se7 sho% li#en#e !hi#h !as refused by a sub6 #o""ittee of a #oun#il) *he #o""ittee !as #haired by a #oun#illor :no!n to be strongly o%%osed to se7 sho%s in general and to the a%%li#ant>s sho% in %arti#ular and #ontained another #oun#illor !ho !as a dire#tor of the Co6o%erati3e 0o#iety !hi#h o!ned the neighbouring retail %re"ises and !hi#h ho%ed to e7%and into the se7 sho% %re"ises if the li#en#e !as not rene!ed5 =roo:e <) held that the #hair"an>s %arti#i%ation !as unob;e#tionable %ro3ided that!hate3er his 3ie!s- he !as %re%ared to listen this is the #ru#ial distin#tion bet!een "#$d$t$#mi!atio! !hi#h is ob;e#tionable and "#$dis"ositio! !hi#h is not ? see
3 9

a de#ision6"a:ing body !ho has so"ething %ersonally to gain or lose by the out#o"e5 *he ;udi#ial de#ision6"a:er as defined in #ocabail v !a' ield [2000] C= 95& at 97&)

further belo!$ but that the %arti#i%ation of the other #oun#illor des%ite his de#laration of an interest and #onse+uent abstention fro" 3oting !ould ha3e %ersuaded a fair "inded obser3er !ho :ne! of his Co6o% #onne#tion that it !as unfair for hi" to ha3e been %resent and to ha3e %arti#i%ated in the +uestioning5 =roo:e < "ade #lear the e7isten#e of t!o distin#t legal tests) *hat is to say the test for a%%arent bias !as not to be a%%lied in #onsidering !hether the e7%ression of a 3ie! on the "erits of the "atter to be de#ided a"ounted to %re6deter"ination) Instead the rele3ant test to be a%%lied in #onsidering !hether a de#ision6"a:ers interest in the "atter in hand %re3ented his %arti#i%ation !as si"%ly !hether he had #losed his "ind) PREDETERMINATION 4s5 PREDISPOSITION 0edley <) in 2ir6stall said that the %rin#i%le of la! that sought to %re3ent %redeter"ination !as different to but e+ually i"%ortant to$ that #on#erned !ith a%%arent bias by reason of ha3ing an interest in a "atter? 6the decision o a bod'( albeit com&osed o disinterested individuals( $ill be struc6 do$n i its outcome has been &redetermined $hether b' the ado&tion o an in lexible &olic' or b' e ective surrender o the bod'9s inde&endent :udgment; ? !hether there !as %redeter"ination by a de#ision6"a:ing body !as a "atter to be ;udged by the Court but !ot by referen#e to the a%%earan#e of bias test i)e) on the #urrent la! !hether the fair6"inded obser3er- ha3ing #onsidered the fa#ts- !ould #on#lude there !as a real %ossibility of bias) Instead su#h "atters will be governed by the separate line of authority on predetermination and !ill re+uire the Court to distinguish see %) 325$ bet!een !ithin the rele3ant statutory fra"e!or:$ legitimate prior stances or experience from illegitimate ones) =ertrand (ussell on#e !arned against #onfusing an o%en "ind !ith one !hi#h is e"%ty5 *hus on 0edley <)>s e7%osition of the la!- !here one !as #on#erned !ith an allegation that a de#ision6"a:er had so"e interest in the "atter being deter"ined- the a%%arent bias test a%%lied !hate3er the nature of the de#ision6"a:er ;udi#ial- +uasi6

;udi#ial or ad"inistrati3e$) Ho!e3er- as regards an allegation of %redeter"ination against a non6;udi#ial de#ision6"a:er the a%%arent bias test had no a%%li#ation55 0ee further the later #ases of1 o R (#ouden) v !ur' %chool /rganisation ,ommittee [2002] ,'HC 2798 Ad"in$1
*he distin#tion bet!een dis+ualifying$ %e#uniary interests and non6dis+ualifying$ %otential %re6;udg"ent arising fro" %rior %ubli#ly stated 3ie!s in the #ase of ad"inistrati3e bodies B is !ell6established1 see e)g) R v %%+ ex & 2ir6stall *alle' ,am&aign [&882] 3 All ,( 305) *his a##ords !ith !ell established la! in the lo#al authority field !here it has long been held that %oliti#al a%%li#ation and %arty loyalty and a %arty !hi% do not dis+ualify1 see !axter9s case and R v !rad ield M,, ex & 4ilson [&848] 3 All ,)() &90 e"%hasis added$

o R (,ummins) v ,amden #!, [200&] ,'HC Ad"in &&&2 %er @useley <) at %ara) 2521
I a##e%t 0edley <Ds analysis of the t!o distin#t %rin#i%les) *he first +uestion is !hether there !as a real danger that a Coun#illorDs de#ision !ould be influen#ed by a %ersonal interest- or %utting it in !hat "ay be a slightly different for"ulation of the test for biasfollo!ing 3n re Medicaments and Related ,lasses o Goods (No2) [200&] & 'L( 7277 CA1 !ould the fair6"inded obser3er- :no!ing the ba#:ground- #onsider that there !as a real danger [no! %ossibility] of bias fro"- in this #onte7t- a %ersonal interest held by a #oun#illorE *here is an i"%ortant distin#tion bet!een bias fro" a %ersonal interest and a %redis%osition- short of %redeter"ination- arising say fro" %rior #onsideration of the issues or so"e as%e#t of a %ro%osal) *he de#ision6"a:ing stru#ture- the nature of the fun#tions and the de"o#rati# %oliti#al a##ountability of Coun#illors %er"it- indeed "ust re#ognisethe legiti"ate %otential for %redis%osition to!ards a %arti#ular de#ision) *he sour#e of the %otential bias has to be a %ersonal interest for it to be %otentially ob;e#tionable in la!)F

o In the Australian te7tboo: Judicial eview of !dministrative !ction Aronson %ut the "atter is %ut in this !ay1
*he bias rule forbids %re;udg"ent- but 3aries the #ontent of that ter" to a##o""odate the !idely 3arying #ir#u"stan#es !ithin its s#o%e) At one end of the s#ale are ;udges- !ho are e7horted to a%%roa#h ea#h #ase !ith no %re#on#e%tions %e#uliar to the #ase- the %arties or their !itnesses B At the other end are Ginisters and senior %oli#y %lanners- !hose abilities are said to be in in3erse %ro%ortion to the degree of ;udi#ial deta#h"ent they bring to bear on the ;ob)

AN ASIDE ON 0RAN2#3N * M3N3%-+R /0 -/4N AN7 ,/)N-R. P#ANN3NG -&.370 AC 78

In ter"s of the se%arate %rin#i%le go3erning %redeter"ination1 see also R v +xeter ,,( ex & 5uitl'nn #td &842$ 45 LH( 3475 R v Amber *alle' ex & <ac6son [&845] & 'L( 284 and R v ,hairman o the -o$n Planning A&&eal !oard( ex & Mutual #uc6 3nvestment #td 22 Gay &885- unre%orted$ all dis#ussed in 2ir6stall *alle')

0edley <) see %) 32&$ in for"ulating the s#o%e of the %rin#i%le that %re3ented %redeter"ination a%%eared to ta:e a so"e!hat di" 3ie! of the House of Lords de#ision in 0ran6lin5

In 0ran6lin there !as a #hallenge to the de#ision of the Ginister Le!is 0il:in$ to "a:e- follo!ing the #onsideration of ob;e#tions at an in+uiry- the 0te3enage .e! *o!n Aesignation$ @rder &892) *he #hallenge !as based on things said by the Ginister in a s%ee#h he ga3e- before he #onsidered the ob;e#tions- at a %ubli# "eeting in 0te3enage to!n hall see %%) 80 ? 8&$5

*he House of Lords thought the #ase had nothing to do !ith bias see %) &03- !hi#h !as to be #onfined to its %ro%er s%here$ and re;e#ted the #hallenge on the basis that the s%ee#h did not sho! that the Ginister had forejudged any genuine consideration of the objections or that he had not genuinely considered the objections at the later stage when the were submitted to him %) &05$5

'hat 0edley <) did not li:e about 0ran6lin !as %resu"ably the out#o"e the %redis%osition ? if that is !hat it !as 6 !as rather strongI$) As Aronson see abo3e$ says [t]he #ase has been #riti#ised- but the result is surely #orre#t) A Ginister>s %assionate #o""it"ent to !ide to a !ide ranging %ro%osal is so"ething that the #ourts #annot and should not ta"e

THE

MODERN

APPROACH9

PREDETERMINATION

JUD+ED

B:

RE;ERENCE TO THE APPARENT BIAS TEST ,ondron v National Assembl' or 4ales [2007] LH( 47 %ro3ides a good starting %oint for the "odern a%%roa#h !hi#h see:s to ;udge %redeter"ination by ad"inistrati3e de#ision6"a:ers by referen#e to the test for a%%arent bias) I !ill return in a "o"ent to ho! !e got to this %osition) In ,ondron a %lanning de#ision #o""ittee of the .A' had to #onsider on a%%eal an a%%li#ation for %lanning %er"ission for o%en#ast "ining follo!ing an in+uiry !hi#h resulted in an ins%e#tor re#o""ending the grant of #onsent) *he de#ision of the #o""ittee to grant !as #hallenged on the basis of an alleged #o""ent "ade to an ob;e#tor- in the #ourse of a #han#e en#ounter and terse #on3ersation about the

%ro%osed de3elo%"ent- by one of the #o""ittee>s "e"bers) He is alleged to ha3e said in ad3an#e of the "eeting that he !as going to go with the inspector"s report) A##ordingly this !as on 0edley <)>s analysis a #lassi# #ase of alleged %redeter"ination) *he Court of A%%eal analysed the #ase by referen#e to the %rin#i%les a%%lying to a%%arent bias see %ara) 5ff of the ;udg"ent of (i#hards L<$) (i#hards L< refers to the learned <udge belo! ha3ing said that the ty%e of bias alleged !as possible predetermination) *he <udge belo! and the Court of A%%eal a%%lied and ado%ted a %assage fro" the ;udg"ent of (i#hards <) in Georgiou v +n ield #!, [2009] =HL( 987 at %ara) 3&) o In Georgiou listed building #onsent and %lanning %er"ission !as sought and the %ro%osals #onsidered by the authority>s #onser3ation ad3isory grou% CAH$) CAH !as #harged !ith ad3ising the authority>s %lanning #o""ittee on the i"%li#ations of %ro%osals affe#ting listed buildings) CAH e7%ressed un+ualified su%%ort for the %ro%osals) 9 "e"bers of the CAH sat on the %lanning #o""ittee !hi#h subse+uently granted the #onsents sought ? one !as the #hair of the %lanning #o""ittee and all 3oted in fa3our) It !as alleged that this ga3e rise to a real a%%earan#e of bias) (i#hards <) allo!ed the #lai") o (i#hards <) as he then !as$ said that he sa! the for#e of the analysis in 2ir6stall *alle' !hi#h !as %i#:ed u% and a%%lied in ,ummins but said at %aras) 30 6 3&
30) It see"s to "e- ho!e3er- that a different a%%roa#h is re+uired in the light of Porter v. Magill) *he rele3ant +uestion in that #ase !as !hether !hat had been said and done by the distri#t auditor in relation to the %ubli#ation of his %ro3isional #on#lusions suggested that he had a #losed "ind and !ould not a#t i"%artially in rea#hing his final de#ision1 see e)g) the ba#:ground set out by Lord Ho%e at %ages 98&6982 %aras 82684) *hus it !as a #ase of alleged %redeter"ination rather than one in !hi#h the distri#t auditor !as alleged to ha3e a dis+ualifying interest) Jet it !as #onsidered !ithin the #onte7t of a%%arent bias- and the de#ision !as based on the a%%li#ation of the test as to a%%arent bias !hi#h I ha3e already set out) *here is nothing %arti#ularly sur%rising about this) I ha3e "entioned 0edley <Ds obser3ation in 2ir6stall *alle'- as +uoted in ,ummins- that %redeter"ination #an legiti"ately be regarded as a for" of bias) Cases in !hi#h ;udi#ial re"ar:s or inter3entions in the #ourse of the e3iden#e or sub"issions ha3e been alleged to e3iden#e a #losed "ind on the %art of the #ourt or tribunal ha3e also been #onsidered in ter"s of bias1 see e)g) #ondon !orough o %outh$ar6 v. <imine" [2003] ,'CA Ci3 502 at %ara 25 of the ;udg"ent- !here the test in Porter v. Magill !as a##e%ted as #o""on ground and !as then a%%lied) 3&) I therefore ta:e the 3ie! that in #onsidering the +uestion of a%%arent bias in a##ordan#e !ith the test in Porter v. Magill- it is ne#essary to loo: beyond %e#uniary or %ersonal interests and to #onsider in addition !hether- fro" the %oint of 3ie! of the fair6"inded and

infor"ed obser3er- there !as a real %ossibility that the %lanning #o""ittee or so"e of its "e"bers !ere biased in the sense of a%%roa#hing the de#ision !ith a #losed "ind and !ithout i"%artial #onsideration of all rele3ant %lanning issues) *hat is a +uestion to be a%%roa#hed !ith a%%ro%riate #aution- sin#e it is i"%ortant not to a%%ly the test in a !ay that !ill render lo#al authority de#ision6"a:ing i"%ossible or unduly diffi#ult) I do not #onsider- ho!e3er- that the #ir#u"stan#es of lo#al authority de#ision6"a:ing are su#h as to e7#lude the broader a%%li#ation of the test altogether)

0o it see"s that it !as be#ause of Porter that the distin#t %rin#i%les identified in 2ir6stall *alle' ha3e been #olla%sed together) Ho!e3er- as !e shall see it is +uestionable if Porter ;ustifies the "odern a%%roa#h to these issues as set out in Georgiou and ,ondron)

*HAT HAPPENED IN ,/N7R/N= THE MODERN APPROACH IN ACTION o In ,ondron (i#hards L< said at %ara) 931
'e !ere referred to 3arious #ases in !hi#h the distin#tion has been dra!n bet!een a legiti"ate %redis%osition to!ards a %arti#ular out#o"e for e7a"%le- as a result of a "anifesto #o""it"ent by the ruling %arty or so"e other %oli#y state"ent$ and an illegiti"ate %redeter"ination of the out#o"e for e7a"%le- be#ause of a de#ision already rea#hed or a deter"ination to rea#h a %arti#ular de#ision$) *he for"er is #onsistent !ith a %re%aredness to #onsider and !eigh rele3ant fa#tors in rea#hing the final de#ision5 the latter in3ol3es a "ind that is #losed to the #onsideration and !eighing of rele3ant fa#tors) *he #ases in#lude R v %ecretar' o %tate or the +nvironment( ex & 2ir6stall *alle' ,am&aign #td [&882] 3 All ,( 309 at 3206 32&- !ovis 8omes #td v Ne$ 0orest Plc [2002] ,'HC 943 Ad"in$ at %aras &&&6&&3- and R (3sland 0arm 7evelo&ment #td) v !ridgend ,ount' !orough ,ouncil [2002] ,'HC 2&48 Ad"in$ at %aras 25632)

*he "odern a%%roa#h is thus that- for the generality of de#ision6"a:ers go3erned by %ubli# la! and not ;ust ;udi#ial de#ision "a:ers$- the di3iding line bet!een %redis%osition and %redeter"ination is to be assessed by referen#e to !hether a fair6 "inded and infor"ed obser3er !ould #on#lude- ha3ing #onsidered all the fa#ts as a%%earing at the ti"e the Court #o"es to deter"ine the "atter- that there !as a real %ossibility of bias1 see %aras) 90 and 57 of the ;udg"ent in ,ondron and the referen#e to Gillies v %ecretar' o %tate or 4or6 > Pensions [2002] & All ,( 73&)

In ,ondron this of ne#essity in3ol3ed a detailed analysis of the rele3ant fa#ts see %aras) 9& ? 57 of the ;udg"ent$ as a%%earing to the fair "inded and infor"ed obser3er) *he "atters #onsidered in#luded1 the #onte7t of the #on3ersation5 the length of the dis#ussions at the "eeting5 the ter"s of the ins%e#tor>s re%ort being #onsidered5

the +ualifi#ations for "e"bershi% of the #o""ittee5 the fa#t that the #o""ittee re#ei3ed training and that "e"bers !ere bound by a #ode of #ondu#t25 In the end the Court of A%%eal rea#hed the un+uestionably #orre#t 3ie! that there !as no a%%arent bias on the fa#ts) =ut the a%%li#ation of the a%%arent bias test- !here !hat is in issue is %redis%osition 3s %redeter"ination- has "ade the la! #u"berso"e and diffi#ult to a%%ly) *he #o""ent in issue in ,ondron !hile %lainly not a%%ro%riate for a <udge to "a:e to one of the %arties %rior to a hearing "ust surely be regarded as !holly inno#uous in the #onte7t in !hi#h it !as "ad) .on6;udi#ial de#ision6"a:ers are entitled to ha3e %redis%ositions ? they are entitled to e7%ress the" ? and in strong ter"s) 0o long as they don>t #o"e to a de#ision !ith an entirely #losed "ind there is no ob;e#tion to this) And there is surely no need to go through the laborious %ro#ess set out in ,ondron to #o"e to that #on#lusion) THE CONTRAR: <IE* It "ight be said that little of substan#e has #hanged not!ithstanding that 0edley <>s distin#tion in 2ir6stall has been abandoned ? after all the result in ,ondron !ould be the sa"e on either a%%roa#h5 Ho!e3er- it see"s doubtful if the de#ision in Georgiou !ould ha3e been de#ided as it !as if it !ere not for the i"%osition of the straight;a#:et of the test for a%%arent bias5 *he line of authorities dealing !ith %redeter"ination 3s %redis%osition and #onsidered in 2ir6stall has also no! be#o"e in#redibly diffi#ult to re#on#ile !ith the "odern 3ie! that this should be tested by referen#e to the test for a%%arent bias- as it is %lain that su#h a test !as not in fa#t a%%lied in those #ases5 In 3sland 0arm 7evelo&ment #td see abo3e$ the #lai"ant sought to set aside a resolution by a lo#al authority to refuse to sell the" land for the %ur%oses of de3elo%"ent) *here had been strong lo#al o%%osition to the de3elo%"ent) Lo#al ele#tions resulted in a #hange in #ontrol of the lo#al authority) *he de3elo%"ent had been an issue at the ele#tion) After the ele#tion the lo#al authority deter"ined not to
2

*he Court also referred to the need to re#on#ile the responsibilities of public authorities as decisionmakers with the workings of the democratic process and the fact that declarations of policy are frequently made in the course of that process but !ent on to say that this did not affect the validity of the distinction between predisposition and predetermination#$

sell the land needed for the de3elo%"ent) It !as argued that the ne! #oun#illors did not ha3e an o%en "ind and had already for"ed their 3ie!s on the "atter ha3ing fought the lo#al ele#tion on that basis- !hi#h !as de"onstrated by infor"ation in their "anifestos) Indeed one #oun#illor in3ol3ed in the de#ision had %re3iously been in3ol3ed !ith lo#al a#tion grou%s in the fight against the %ro%osed de3elo%"ent) 3sland 0arm %re6dated ,ondron - Collins <) in his ;udg"ent set out !hat (i#hards <) had said in Georgiou as to the a%%li#ation of the Porter test for a%%arent bias to allegations of %redis%ositionK %redeter"ination des%ite the distin#tion bet!een these #on#e%ts re#ognised in #ases su#h as 2ir6stall and ,ummins5 =ut Collins <) #onfessed doubt as to !hether this a%%roa#h !as #orre#t) He said1
30) B Coun#illors !ill ine3itably be bound to ha3e 3ie!s on and "ay !ell ha3e e7%ressed the" about issues of %ubli# interest lo#ally) 0u#h "ay- as here- ha3e been raised as ele#tion issues) It !ould be +uite i"%ossible for de#isions to be "ade by the ele#ted "e"bers !ho" the la! re+uires to "a:e the" if their obser3ations #ould dis+ualify the" be#ause it "ight a%%ear that they had for"ed a 3ie! in ad3an#e) *he de#ision of the Court of A%%eal in !axter9s #ase- of the .e! /ealand Court of A%%eal in the #o$er 8utt #ase and of 'oolf < in the Amber *alle' #ase do not su%%ort this a%%roa#h) ))) Porter v Magill !as a 3ery different situation and in3ol3ed !hat a"ounted to a +uasi6;udi#ial de#ision by the Auditor) In su#h a #ase- it is easy to see !hy the a%%earan#e of bias tests should a%%ly to its full e7tent) 3&) *he reality is that Coun#illors "ust be trusted to abide by the rules !hi#h the la! lays do!nna"ely that- !hate3er their 3ie!s- they "ust a%%roa#h their de#ision6"a:ing !ith an o%en "ind in the sense that they "ust ha3e regard to all "aterial #onsiderations and be %re%ared to #hange their 3ie!s if %ersuaded that they should B unless there is %ositi3e e3iden#e to sho! that there !as indeed a #losed "ind- I do not thin: that %rior obser3ations or a%%arent fa3ouring of a %arti#ular de#ision !ill suffi#e to %ersuade a #ourt to +uash the de#ision)

Collins <) is on to so"ething in %ara) 30) *he abandoning of the distin#tion identified in 2ir6stall *alle' began in Georgiou be#ause (i#hards <) des%ite seeing the for#e of the analysis felt bound to ta:e the 3ie! he did by reason of Porter in the House of Lords) It !ill be re#alled that (i#hards <) noted that Porter was a case of alleged predetermination rather than one in which the district auditor was alleged to have a disqualifying interest# %et it was considered within the context of apparent bias, and the decision was based on the application of the test as to apparent bias & $) =ut is it #orre#t to say that Porter !as #on#erned !ith de#ision6"a:ing that !as 3ery #lose to ;udi#ial so as to bring in to %lay the a%%earan#e of bias test to its full extentE *his is not entirely easy to ans!er but if it !as- of #ourse- Porter in no !ay under"ines 0edley <>s a%%roa#h in 2ir6stall *alle' !hi#h !as #entred on non6;udi#ial de#ision6 "a:ers) *he other #ase #ited by (i#hards <) in Georgiou in su%%ort of the "o3e 8

a!ay fro" the 2ir6stall *alle' a%%roa#h is #ondon !orough o %outh$ar6 v. <imine" ? !hi#h #on#erned an e"%loy"ent tribunal and so !as definitely #on#erned !ith ;udi#ial not other for"s of de#ision6"a:ing$) *here is no doubt Porter %resents diffi#ulties to anyone trying to :ee% ali3e 0edley <>s analysis) *he %roble" is that it !ould a%%ear that in Porter the #ase %ro#eeded !ith agree"ent that the a%%earan#e of bias test a%%lied to !hat !as an allegation of %redeter"ination) *he issue !as as to !hat that test !as) *here !as no #onsideration of 2ir6stall *alle') In 3sland 0arm Collins <) ha3ing referred to the 2ir6stall *alle' distin#tion !ent on to say 'i(t may be that, assuming the Porter v Magill test is applicable, the fairminded and informed observer must be taken to appreciate that predisposition is not predetermination &) *his is good stuff) .e3er "ind the %ages of %ainsta:ing analysis in ,ondron see:ing to as#ertain the full fa#ts u%on !hi#h the 3ie! of the fair "inded obser3er #an be ;udged) If !e are stu#: !ith a%%lying the test of a%%arent bias in su#h #ases then this is the !ay to do itI It "ay in3ol3e %aying no "ore than li% ser3i#e to the a%%arent bias test 6 but it brings us ba#: so"e!here #loser to 2ir6stall *alle') 0adly it is 3ery "u#h not the a%%roa#h subse+uently ta:en in ,ondron by the Court of A%%eal) Is it ti"e the House of Lords had its sayE

%=' THE E>TENSION O; THE AUTOMATIC DIS?UALI;ICATION RULE *he "odern la! of bias has also been blighted by re6dis#o3ery and e7tension of of the auto"ati# dis+ualifi#ation rule see 7imes v Grand <unction ,entral &452$ 3 HLC 754$ in Pinochet (No.2)) Pinochet (No. 2) !as argued on the basis of a%%arent bias) *he House of Lords de#ided to a%%ly the so6#alled auto"ati# dis+ualifi#ation rule also referred to as being a rule of %resu"ed bias$5 *he de#ision of the House of Lords !as sub;e#t to !hat Lord Lhili%s G( in Re Medicaments #alled a powerful critical analysis in )he *emo Judex ule+ )he ,ase !gainst !utomatic -isqualification Lrofessor @lo!ofoye:u [2000] LL 9525 &0

*he Courts ha3e sin#e Pinochet (No. 2) been struggling to "a% out the boundaries of the auto"ati# dis+ualifi#ation rule and its relationshi% to the test for a%%arent bias1 see the "ost re#ent atte"%t to set out the %rin#i%les by the Court of A%%eal in A4G Grou& v Morrison [2002] & 'L( &&23 set out again in 8o$ell v Millais [2007] ,'CA Ci3 7207$ and see also #ocabail )2 #imited v !a' ield Pro&erties #imited [2000] C= 95&5

In Meerabux v A-G o !eli"e [2005] 2 AC 5&3 Lord Ho%e gi3ing the ;udg"ent of their Lordshi%s said that in retros%e#t the House of Lords de#ision in Pinochet (No. 2) !as a highly technical one)

Lord Ho%e obser3ed that- !hile there !as a"%le authority for the rule being e7tended to !here the <udge has a %ersonal or %e#uniary interest in the out#o"e of %ro#eedings- there !as no %re#edent for its e7tension to the #ir#u"stan#es of Pinochet (No.2) !here Lord Hoff"ann !as held to be auto"ati#ally dis+ualified by reason of his dire#torshi% of a #haritable #o"%any !hi#h !as #ontrolled by another #o"%any !hi#h !as %arty to the %ro#eedings)

'ith res%e#t to Lord Ho%e e3en this fran: a#:no!ledge"ent of the lea% "ade in Pinochet (No.2) does not go far enough as the auto"ati# dis+ualifi#ation rule !as%rior to its e7tension in Pinochet (No. 2)- only #on#erned !ith dire#t %e#uniary

i) A ;udge is auto"ati#ally dis+ualified fro" hearing a #ase on the ground of a%%arent bias if- on an assess"ent of all the rele3ant #ir#u"stan#es- the #on#lusion !as that the %rin#i%le of ;udi#ial i"%artiality !ould be brea#hed [A4G at 2]) ii) *his dis+ualifi#ation is not a dis#retionary #ase "anage"ent de#ision rea#hed by !eighing 3arious rele3ant fa#tors su#h as in#on3enien#e- #osts and delay$ sin#e there !as either a real %ossibility of bias or there !as not [A4G at 2]) iii) *he test is- ha3ing as#ertained all the #ir#u"stan#es bearing on the suggestion that the <udge !as or #ould be$ biased- the #ourt "ust itself de#ide M!hether those #ir#u"stan#es !ould lead a fair6"inded and infor"ed obser3er to #on#lude that there !as a real %ossibility that the tribunal !as biased> [A4G at 7]) i3) An a%%ellate #ourt is !ell able to assu"e the 3antage %oint of a fair6"inded and infor"ed obser3er !ith :no!ledge of the rele3ant #ir#u"stan#es) It "ust itself "a:e an assess"ent of all the rele3ant #ir#u"stan#es and then de#ide !hether there is a real %ossibility of bias [A4G at 20]) 3) An e7a"%le of a real danger of bias is !here Mthere !asB ani"osity bet!een the <udge and any "e"ber of the %ubli# in3ol3ed in the #ase #ocabail )2 #imited v !a' ield Pro&erties #imited [2000] C= 95& CA$ at 255 the #ategories of su#h danger are not #losed- if for any other reason there !ere real grounds for doubting the ability of the ;udge to ignore e7traneous #onsiderations- %re;udi#es and %redile#tions then re#usal !ould be ne#essary) 3i) In "ost #ases- the ans!er- one !ay or the other !ill be ob3ious) =ut if in any #ase there is real ground for doubt- that doubt should be resol3ed in fa3our of re#usal #ocabail at [25]$) 3ii) 'here the hearing has not yet begun- there is s#o%e for the sensible a%%li#ation of the %re#autionary %rin#i%le) Lruden#e nor"ally leans on the side of being safe rather than sorry [A4G at 8])

&&

interests see Gough and R v ,ambourne <ustices( ex & Pearce [&855] & C= 9&$ rather than %ersonal ones) *he a%%li#ation of the auto"ati# dis+ualifi#ation rule allo!ed the House of Lords to a3oid !hat Lord Ho%e referred to as [o]ne of the under#urrents in the Pinochet (No. 2) #ase na"ely !hether the Gough test of a%%arent bias needed to be re3ie!ed ? the House of Lords du#:ed this in Pinochet5 Lord Ho%e in Meerabux said this1 B the re3ie! !hi#h !as so ob3iously needed !as not long in #o"ing) *he Court of A%%eal too: the o%%ortunity !hi#h %resented itself in 3n re Medicaments and Related ,lasses o Goods (No 2) [200&] & 'L( 700 to #onsider the !hole +uestion of a%%arent bias and ho! its %resen#e !as to be tested) *he ad;ust"ent of the test in R v Gough !hi#h !as des#ribed by Lord Lhilli%s of 'orth Gatra3ers G(- at %% 7226727- laid the basis for the final stage in the for"ulation of the ob;e#ti3e test !hi#h is set out in Porter v Magill [2002] 2 AC 357- %ara &031 !hether the fair6"inded and infor"ed obser3er- ha3ing #onsidered the fa#ts- !ould #onsider that there !as a real %ossibility that the tribunal !as biased) As Lord 0teyn said in #a$al v Northern %&irit #td &- %ara &9- %ubli# %er#e%tion of the %ossibility of un#ons#ious bias is the :ey) If the House of Lords had felt able to a%%ly this test in the Pinochet (No 2) case- it is unli:ely that it !ould ha3e found it ne#essary to find a solution to the %roble" that it !as %resented !ith by a%%lying the auto"ati# dis+ualifi#ation rule) o *his e#hoes !hat !as said by the Court of A%%eal in #ocabail v !a' ield see abo3e$ na"ely that the "ost effe#ti3e guarantee of ;udi#ial i"%artiality is not %ro3ided by the rules !hi#h %ro3ide for dis+ualifi#ation on grounds of a#tual bias- nor by those !hi#h %ro3ide for auto"ati# dis+ualifi#ation B but rather the a%%earan#e of bias test ? see %ara) &2 in the ;udg"ent of the Court) o *hus the e7tension of the auto"ati# dis+ualifi#ation rule %ro3ided a short6#ut for their Lordshi%s in Pinochet (No. 2) but it has %ro3ed to be a long- long detour for the rest of us ? and !e are not yet- des%ite Lord Ho%e>s best efforts- ba#: on the right tra#: B

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