Gray v Bristol Magistrates Court

An apparent-bias claim requires an objectively arguable risk that the decision-maker may be biased. A speculative professional connection, without evidence that the decision-maker knew of the relevant complaint or had a material interest in the proceedings, is insufficient. A judge’s express statement that he had no knowledge of the alleged matter may provide a conclusive answer. Alleged errors in fact-finding, failure to address every submission, or an arguable misdirection are not, without more, evidence of bias. Such matters belong in the ordinary appeal process. Judicial review proceedings which have become academic will not justify a stay of related criminal proceedings.

The claimant faced charges of common assault and threatening behaviour contrary to Public Order Act 1986, section 4. Before trial, he sought judicial review of decisions concerning the calling of a police witness and investigation of whether the prosecution witness’s dog had attacked people previously.

The police witness was called at trial, making the first judicial review proceedings academic. The claimant was convicted and then sought permission to challenge the conviction on the ground that the Deputy District Judge was apparently biased because he had practised as a barrister and might have acted for the solicitors’ firm against which the claimant had previously complained. The central issues were whether the alleged professional connection raised an arguable case of apparent bias and whether the conviction or related procedural matters justified a stay.

1. Disposition. The court refused permission for judicial review in both applications. It also refused a stay of the sentencing process.
2. Apparent bias. The alleged facts did not raise an arguable case. The solicitors’ firm was not a party, none of its partners or staff was a witness, and the claimant’s case did not involve criticism of the firm. A fair-minded observer would not perceive a risk of bias merely because the judge may previously have acted for the firm.
3. The claimant’s assertion that the judge might have known about his complaint and its settlement was speculative. In any event, the judge had expressly stated that he had no knowledge of the matters and did not wish to be told about them. That was a conclusive answer on the facts assumed for the application.
4. The decision in R v Cambridge Justices ex parte Yardline Limited and Bird [1990] Crim LR 733 did not assist the claimant. It concerned a justice who was a partner in a firm regularly acting for one of the parties, an materially different situation.
5. Criticism of the trial judge’s factual findings, including preferring one witness’s evidence to another’s, could not itself establish bias. Nor could reliance on material not before the judge, failure to address every submission, or an alleged legal error in the note of judgment. Any such errors could be pursued through the appeal to the Crown Court and were not evidence that the judge deliberately or subconsciously acted against the claimant.
6. The earlier decision not to require the police witness to attend could not evidence bias by a different judge. The related application had also been overtaken when the witness was called.

Mr Justice Ouseley agreed. The sentencing process was left to the Deputy District Judge, having regard to the outstanding Crown Court appeal.

• High Court (Administrative Court): Mitting J refused permission on the papers on 2 April 2008 on the dog-investigation ground. Burton J refused permission on the witness ground, adjourned that issue for an inter partes hearing, and refused a stay. Saunders J later adjourned the second application for permission to the present hearing.
• High Court (Administrative Court): the Divisional Court refused permission for both judicial review applications and refused a stay. The first application had become academic after the police witness was called at trial.