Mahfouz, R (on the application of) v General Medical Council

Apparent bias is assessed objectively. The question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The inquiry embraces unconscious bias, but should not be supplemented by a separate subjective inquiry. A disciplinary committee may consider the nature of prejudicial material, the passage of time, differences between earlier and current allegations, and its ability to follow directions about inadmissible material. Once apparent bias is rejected under the correct test, Article 6 is satisfied. An adjournment to enable judicial review may properly be refused where judicial review remains available and representation can continue.

Dr Mahfouz sought judicial review of rulings by a General Medical Council Professional Conduct Committee during disciplinary proceedings. Several committee members had read newspaper reports referring to his previous erasure from the medical register and to the allegations then being heard. The committee declined to recuse itself, applying the apparent-bias test stated in Porter v Magill [2002] 2 AC 357, and later refused a short adjournment to enable an immediate application to the High Court.

The Administrative Court treated the permission application as the substantive hearing. The issues were whether the committee had applied the correct test, whether its reasons and approach complied with Article 6 and public-law standards, and whether refusal of the adjournment was unlawful.

1. Claim dismissed. The committee was not required to recuse itself and was entitled to continue the disciplinary hearing.
2. The correct test was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The test was objective and included unconscious bias. The separate question proposed by the legal assessor, focusing on possible prejudicial effects on the committee’s minds, risked introducing a subjective approach and was properly rejected.
3. The committee’s reasons showed that it had considered the newspaper material, the lapse of time since the earlier misconduct, the unrelated nature of the earlier case, its own experience, its ability to distinguish admissible from inadmissible evidence, and the legal assessor’s directions. Its conclusion that there was no real possibility of bias was rational and properly open to it.
4. Once apparent bias was rejected under the correct test, the committee was an independent and impartial tribunal for Article 6 purposes. The absence of an express reference to Article 6 did not invalidate the ruling.
5. The refusal to adjourn was lawful. The court was to ask whether the committee could properly refuse the adjournment, rather than substitute its own view. The committee had regard to the interests of justice, expedition, the continuing availability of judicial review, and the possibility of continued representation or fresh counsel.
6. Judicial review was a proper procedure in the unusual circumstances. Costs, including those reserved before Maurice Kay J, were to be assessed. Permission to appeal was refused.

The judgment records an interim stay granted by Maurice Kay J on 13 June 2003. The present court treated the permission application as the substantive hearing and dismissed the claim. Permission to appeal was refused.