Helow (AP) (Appellant) v Secretary of State for the Home Department and another (Respondents) (Scotland)

Apparent bias is assessed by asking whether a fair-minded and informed observer, having considered all relevant facts in context, would conclude that there was a real possibility of bias. The observer is objective, neither complacent nor unduly sensitive or suspicious.

A judge’s membership of an association does not, without objective evidence of endorsement or active involvement, impute to the judge partisan views expressed by the association’s officers or publications. Judicial training and the judicial oath are relevant but not conclusive. Automatic disqualification for involvement in a cause does not arise from mere membership where the association is neither a party nor concerned in the proceedings.

The appellant was a Palestinian asylum claimant who alleged that her political activities, including involvement in proceedings concerning the Sabra and Shatila massacre, exposed her to reprisals if she returned to Lebanon. An adjudicator dismissed her appeal, and the Immigration Appeal Tribunal refused permission for a further appeal. Lady Cosgrove subsequently refused her petition for statutory review under section 101(2) of the Nationality, Immigration and Asylum Act 2002.

After that decision, the appellant discovered that Lady Cosgrove belonged to the International Association of Jewish Lawyers and Jurists. She petitioned the nobile officium to set aside Lady Cosgrove’s interlocutor for apparent bias and want of objective impartiality. The Extra Division of the Inner House refused the petition in [2007] CSIH 5.

The central issue before the House was whether a fair-minded and informed observer would conclude that the judge’s membership of the Association created a real possibility of bias.

1. Disposition. The House unanimously dismissed the appeal and affirmed the Extra Division’s interlocutors.

2. The objective test. Per Lord Hope, Lord Rodger and Lord Mance, the governing question derived from Porter v Magill [2001] UKHL 67 was whether the fair-minded and informed observer, after considering the relevant facts, would conclude that there was a real possibility of bias. The observer reserves judgment until both sides have been understood. She is neither complacent nor unduly sensitive or suspicious and considers the material in its full social, political and factual context.

3. Membership and attributed views. Per Lord Hope, Lord Rodger, Lord Cullen and Lord Mance, the Association’s stated aims were unobjectionable. The appellant relied on a selective body of strongly partisan material from its journal and officers. There was no evidence that Lady Cosgrove had expressed, endorsed or associated herself with those views, or that she had participated actively in the Association after helping to inaugurate its Scottish branch. Membership alone supplied no objective basis for imputing the views to her.

   The observer would recognise that the Association’s members held differing opinions and that its journal also contained material of ordinary legal interest. Mere receipt of the journal did not create a real possibility that its partisan content had influenced a professionally trained judge by a process of unconscious absorption.

4. Automatic disqualification. Per Lord Mance, whose reasoning was agreed by a majority, R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119 did not govern. The Association was not a party to, concerned in, or apparently aware of the proceedings. Mere membership, without active involvement in the cause or proceedings, did not engage automatic disqualification.

5. Partisan commitment. Lord Rodger, Lord Walker and Lord Mance accepted that a judge who had personally expressed or endorsed the Association President’s strongly partisan views could not properly determine this case. That hypothetical circumstance was absent. Lord Walker reached the result less readily and cautioned that judges must exercise restraint in publicly associating themselves with controversial causes.

6. Judicial office and disclosure. Per Lord Mance, professional training, experience and the judicial oath were relevant factors, but neither guaranteed impartiality nor supplied a complete answer. Disclosure may sometimes be a badge of impartiality, but it cannot cure clear disqualification. Conversely, non-disclosure has little significance where the observer would see nothing that required disclosure. Lady Cosgrove’s failure to disclose her membership therefore carried no substantial weight.

1. House of Lords: In [2008] UKHL 62, unanimously dismissed the appeal and affirmed the Extra Division’s interlocutors.
2. Extra Division of the Inner House of the Court of Session: In [2007] CSIH 5, refused the prayer of the appellant’s petition to the nobile officium seeking to set aside Lady Cosgrove’s interlocutor for apparent bias.
3. Court of Session: Lady Cosgrove refused the appellant’s petition for review under section 101(2) of the Nationality, Immigration and Asylum Act 2002.
4. Immigration proceedings: An adjudicator dismissed the asylum appeal, and the Immigration Appeal Tribunal refused permission to appeal.