Oldfield, R. v

Apparent bias is assessed objectively by asking whether a fair-minded and informed observer, having considered the relevant facts, would see a real possibility of bias. That observer understands ordinary judicial practice, including judges’ professional training, impartiality and oath of office.

A limited professional acquaintance and occasional inconsequential social contact between a judge and a witness’s former counsel do not, without more, satisfy that test. It is nevertheless safer practice to use a judge with no personal knowledge of former counsel where an application to withdraw a guilty plea involves a conflict of evidence. A sentence that is manifestly excessive after proper allowance for aggravation, mitigation and plea credit should be reduced on appeal.

The appellant pleaded guilty at Lancaster Crown Court to rape, assault by penetration and theft. The rape count was contrary to section 1 of the Sexual Offences Act 2003. Before sentence, he applied to withdraw his guilty pleas to the sexual counts, alleging that his former counsel had placed undue pressure on him.

At Preston Crown Court, Judge Knowles QC heard evidence from the appellant, his mother, former counsel and a solicitor’s clerk. The judge found that counsel had given proper advice and that the pleas were free and voluntary. He refused permission to change them and imposed a concurrent total of six years and three months’ detention.

The appellant appealed against conviction on the sole ground that the judge’s limited acquaintance with former counsel gave rise to actual or apparent bias. He also sought leave to appeal against sentence. The central issue was whether a fair-minded and informed observer would perceive a real possibility that the judge was biased.

1. The conviction appeal was dismissed. There was no actual bias. The applicable test was that in Porter v Magill [2001] UKHL 67: would the fair-minded and informed observer, having considered the facts, conclude that there was a real possibility of bias? The observer is neither complacent nor unduly suspicious, knows the facts available to the public, understands ordinary judicial practice, and has confidence in judges’ training, experience and oath of office.

2. On the facts, the judge’s relationship with former counsel was essentially professional. It consisted of limited appearances before him and occasional exchanges of pleasantries. It was not a personal friendship. A competent judge could fairly assess the conflicting evidence of the former counsel, the appellant and the other witnesses. The observer would therefore not suspect bias, and the refusal to permit withdrawal of the guilty pleas stood.

3. The court nevertheless commended the safer practice of bringing in a judge from another court centre, with no personal knowledge of former counsel, where an application to change plea is likely to involve such a conflict of evidence. That practice would have avoided the appearance argument, but its absence did not affect the outcome here.

4. Leave to appeal against sentence was granted and the sentence appeal allowed. The guideline starting point for rape of an adult was five years’ custody. The court took account of the injury caused, the degrading features of the assault, the appellant’s youth and previous good character, and the appropriate one-sixth credit for the guilty pleas. A total of six years and three months was manifestly excessive. The sentence on rape was reduced to five years’ detention, subject to the stated remand and curfew credit. The concurrent sentences for assault by penetration and theft remained unchanged.

• Court of Appeal (Criminal Division). The appeal against conviction was dismissed. Leave to appeal against sentence was granted, and the sentence for rape was reduced from six years and three months’ detention to five years’ detention.
• Preston Crown Court. Judge Knowles QC refused permission to withdraw guilty pleas to the sexual counts, finding that they were free and voluntary. He imposed a concurrent total sentence of six years and three months’ detention.
• Lancaster Crown Court. The appellant pleaded guilty to rape, assault by penetration and theft.