Regular readers of Law, mostly will know I take an interest in the topic of judicial bias, be it of the conscious or unconscious variety.

As recent headlines show, public trust in the legal system cannot be taken for granted. The ability to overturn a decision that has been tainted by actual or apparent bias is an essential part of a healthily functioning legal system. But it also requires a thorough examination of the allegations and the words and conduct of the Judge below. In jurisdictions where the relationship between lawyers and judges has become strained, bias allegations can be a particularly sensitive meta-issue, especially when evidence on appeal is required from both advocates and Judges.

In two recent decisions, the Upper Tribunal (Immigration and Asylum Chamber) (‘UT’) has considered allegations of bias against First-tier Tribunal (‘F-tT’) judges, and given some guidance on the correct approach with a focus on the role of the advocate in bias appeals.

RELATED: How to deal with allegations of bias against immigration judges

Background: the legal test for bias

To recap, there are 2-stages to the well-established test of bias as laid down in Magill v Porter [2001] UKHL 67 at § 103:

Stage 1. Ascertain all the circumstances relevant to the suggestion of bias; and

Stage 2. in light of the facts, ask whether a fair-minded and informed observer to conclude that there was a real possibility of bias.

The test is objective and not assessed through the perspective of the complainant. The principle behind it is closely related to the idea that justice should not only be done but should be seen to be done. In practice, bias is a demanding legal test for an appellant to satisfy and any allegations against a Judge must be sufficiently evidenced and detailed.

RELATED: Should Judges recuse themselves if they practise in the same chambers as a barrister in the case?

PA Bangladesh

In PA (protection claim: respondent’s enquiries; bias) Bangladesh [2018] UKUT 0337 (IAC), the appellant’s claim for asylum on the basis of his political activity was refused by the Home Office and his appeal against that refusal was dismissed by an unnamed F-tT Judge who found the appellant’s claim was false and lacked credibility.

PA appealed to the UT and among other things alleged that the F-tT decision was tainted by actual or apparent bias. According to counsel who appeared for PA at the F-tT hearing:

the judge “did not allow permissible re-examination-in-chief of the appellant”; that the judge stated in open court “Thank God for that” when Counsel cut short her closing speech “once it became apparent… that the judge was destined to refuse the appeal as a result of bias”; that the appellant was “shaken and upset”; and that the judge’s unacceptable behaviour was also perceived as such by the Home Office Presenting Officer and her colleague. 

On the UT’s invitation, the F-tT Judge replied to these allegations. His account of the hearing was rather different. During counsel’s re-examination (the final round of questioning of the appellant):

the judge said he asked Counsel to pause while he made a note of the conversation, to which she said: “please do”. The judge said that he found that reply of Counsel to be “impertinent and said so”. The judge said that Counsel’s response “was discourteous” and that “no member of the judiciary should countenance such behaviour”. 

The hearing continued to go downhill from there.

RELATED: This Immigration Judge’s decision was ‘infected’ by the appearance of bias

On appeal to the UT, President Lane and UT Judge Pitt rejected the allegation of bias. A key reason for this was the lack of any complaint by counsel at the F-tT hearing about the Judge’s words and conduct.

81. Members of the Bar are expected to put their clients’ cases fearlessly. As a general matter, if Counsel concludes during a hearing that the judge is behaving in an inappropriate manner, Counsel has a duty to raise that matter with the judge, there and then. In this way, the issue will, at the very least, be recorded in the judge’s record of proceedings and, ideally, in the record of Counsel and/or his or her instructing solicitor. 

It did not help the appellant that while his counsel at the F-tT had not provided any reply to the Judge’s account, despite the his solicitors having ample time to obtain a supplementary statement from her.

The UT noted that disputes of this nature would be far easier to resolve if F-tT proceedings were recorded (which they are not at present). It also censured the F-tT Judge for the use of sarcasm in one of the comments in his reply.

Ortega

The UT case of Ortega (remittal; bias; parental relationship) [2018] UKUT 00298 (IAC) concerned among other things, an allegation that the decision of F-tT Judge Jones QC refusing the appellant’s appeal against the refusal of his family and private life application was tainted by bias.

The panel, again comprised of President Lane and UT Judge Pitt, dismissed the appellant’s appeal on this and other grounds. While Judge Jones QC’s criticism of the appellant’s ‘criminal tendencies and lack of moral fibre‘ was intemperate and ‘strongly expressed‘, it did not cross the high threshold of showing a risk of bias in the eyes of a fair-minded and informed observer. The F-tT Judge was entitled to criticise the appellant’s record and also to find that the appellant’s spouse had used deception to obtain British citizenship based on the evidence before him – that conclusion was not impartial.

The appellant claimed that the Judge Jones QC had agreed to view further evidence on a video CD after the hearing but failed to do so. The Judge denied having made such an agreement in his reply to the allegations. As no witness statement had been provided from the appellant’s counsel at the F-tT hearing to contradict the Judge’s conflicting account, the UT dismissed this allegation.

Comment

These two cases make modest contributions to the detailed procedure to follow bias appeals as outlined by the Court of Appeal’s post-script to the judgment in Singh v Secretary of State for the Home Department [2016] EWCA Civ 492 and previously covered on this blog here.

However, the cases are useful reminders of the need for advocates to be ready to raise concerns about issues of procedural fairness as and when they arise in a hearing. That is a difficult responsibility to discharge, particularly in what can be tense hearings. The integrity of decision-making process sometimes requires advocates to make difficult and unattractive submissions in an appropriately persuasive manner.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

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