London Borough Of Ealing & Ors v Jan

A judge’s assurance that there is no actual bias does not determine an application for recusal based on apparent bias. The question is whether a fair-minded and informed observer, knowing the relevant circumstances, would conclude that there was a real possibility of bias.

A judge’s emphatic expression of distrust in a party before that party has given evidence may create that appearance, even where the remark was made on a preliminary issue. Where the forthcoming hearing may require assessment of that party’s credibility, the case should be heard by another judge if the objective test is met.

The claimants had obtained injunctions restraining Richard Jan from conduct directed at public authorities, their employees and a named individual. Following alleged breaches, a committal application was heard in Mr Jan’s absence after substituted service. He received a sentence of imprisonment.

After his arrest, the judge set aside that committal order and directed a retrial because he was not satisfied that Mr Jan knew of the earlier hearing. In doing so, the judge twice expressed strong distrust of Mr Jan and doubts about a prospective witness. He then refused Mr Jan’s application that the retrial be heard by another judge.

Mr Jan appealed from that refusal. The central issue was whether the judge’s remarks gave rise to a real possibility of apparent bias at the retrial.

Disposition

1. Appeal allowed. The retrial of the committal application was directed to take place before another judge of the county court.

2. Thorpe LJ held that there was no question of actual bias. The governing issue was instead whether a fair-minded and informed member of the public, observing the proceedings, would think that there was a real possibility that the judge would be biased at the retrial.

3. The judge had twice said that he would not trust Mr Jan further than he could throw him. Although the remarks concerned whether Mr Jan knew of the earlier committal hearing or had evaded service, they were exceptionally strong expressions of prejudgment. They were made before Mr Jan had embarked on giving evidence, and his credibility could be material at the retrial.

4. The judge’s own confidence that he could act without actual or perceived bias could not resolve the objective question. The discussion in In Re Medicaments [2001] 1 WLR 700 also illustrated the difficulty for a judge in ruling on an allegation of bias concerning that judge.

5. Tuckey LJ agreed. He stated the objective test as whether the observer could conclude that there was a real possibility of bias, and considered that the judge’s words admitted of only one answer. Sir Anthony Evans also agreed.

The respondents were ordered to pay the appellant’s costs, subject to public funding assessment.

• Court of Appeal (Civil Division): allowed Mr Jan’s appeal in [2002] EWCA Civ 329 and directed that the retrial be heard by another judge.
• Brentford County Court: HHJ Oppenheimer set aside an earlier committal order and directed a retrial, but refused an application to disqualify himself from hearing it.