Helow v Secretary of State For The Home Department and Another (Scotland)

The House of Lords applied the established test for apparent bias from Porter v Magill: whether the fair-minded and informed observer, having considered the facts, would conclude there was a real possibility that the judge was biased. The appellant relied on Lady Cosgrove's membership of the International Association of Jewish Lawyers and Jurists and the Association's journal "Justice" to show appearance of bias in an asylum review under section 101(2) of the Nationality, Immigration and Asylum Act 2002. The court held that selective material from the journal did not, objectively assessed, establish that Lady Cosgrove had associated herself with or been influenced by the partisan views published, and that professional training, the judicial oath and the absence of any evidence of active endorsement or conduct by the judge weighed against a finding of a real possibility of bias.

This appeal concerned a petition to vitiate an interlocutor of Lady Cosgrove dated 24 November 2004 refusing review under section 101(2) of the Nationality, Immigration and Asylum Act 2002. The appellant, a Palestinian asylum-seeker, did not challenge Lady Cosgrove's reasons on the merits but alleged apparent bias arising from the judge's membership of the International Association of Jewish Lawyers and Jurists (IAJLJ) and the content of the Association's quarterly journal, "Justice".

The procedural history was that the appellant's asylum claim was refused by the Home Secretary and the adjudicator; permission to appeal to the IAT was refused on 29 September 2004; the petition for review in the Court of Session was dismissed by Lady Cosgrove and that interlocutor was sustained by the Extra Division (Inner House), leading to this appeal to the House of Lords.

Issues framed by the court:

• What is the appropriate test for apparent bias?
• Whether membership of the IAJLJ and the content of its journal, in the absence of any evidence of endorsement by the judge, created a real possibility of bias.
• Whether features such as the judicial oath, judicial training and absence of evidence of active involvement affected the assessment.

The court analysed the selected material from "Justice", the Association's published aims and the context of the journal. It treated the material exhibited as selective, noted disclaimers in the journal, and accepted that the Association's stated aims were unobjectionable. The Law Lords concluded that mere membership, without evidence of endorsement, active involvement or extreme conduct, does not give rise to a real possibility of bias. The argument that a judge might be unconsciously influenced by periodic exposure to the journal's content was rejected. The House therefore dismissed the appeal, affirming the Extra Division's interlocutors.

Appeal dismissed. The House held that, applying the Porter v Magill test, a fair-minded and informed observer would not conclude there was a real possibility of bias merely from Lady Cosgrove's membership of the International Association of Jewish Lawyers and Jurists and receipt of its journal. The selection of partisan material was insufficient without evidence that the judge had endorsed or been influenced by those views; factors such as professional training and the judicial oath supported the presumption of impartiality.

Appeal from the Extra Division of the Inner House of the Court of Session ([2007] CSIH 5; 2007 SC 303). Underlying procedural steps: adjudicator refused the asylum claim (27 May 2004); permission to appeal to the Immigration Appeal Tribunal refused (29 September 2004); petition for review to the Court of Session refused by Lady Cosgrove (24 November 2004); Extra Division refused the prayer in the petition (16 January 2007); appeal to House of Lords ([2008] UKHL 62).