Adu v General Medical Council

Apparent bias is assessed objectively. The question is whether the fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias. The circumstances must be assessed cumulatively. A judge should disclose a potentially relevant association and determine any objection, while resisting both tenuous objections and undue reluctance to recuse. Where there is real ground for doubt, the doubt should be resolved in favour of recusal.

Dr Kofi Adu appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision that his fitness to practise was impaired and that his name should be erased from the medical register. He alleged unfairness arising from the Legal Assessor’s actual or apparent bias. When the appeal came before Mr Justice Warby, it became apparent that the judge had a recent and continuing professional association with the Legal Assessor, including shared chambers membership and work on a textbook. The central issue was whether those circumstances created a real possibility of apparent bias requiring recusal.

1. Recusal ordered. Mr Justice Warby recused himself from hearing the appeal and adjourned it to a date on or after 7 October 2014.

2. The governing test, drawn from Porter v Magill [2002] 2 AC 357, is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the court or tribunal was biased. It is an objective test depending on all the circumstances. It does not require a likelihood of bias or a real danger.

3. The court applied the guidance in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451. A judge should disclose a matter which could arguably give rise to apparent bias, hear any objection, and exercise judgment upon it. The judge must neither yield to a tenuous objection nor ignore one of substance. The passage of time may weaken an objection, while a recent association may strengthen it.

4. The relevant circumstances included the judge’s approximately 20-year professional association with the Legal Assessor, the fact that it had ended only shortly before the hearing, continuing professional contact, and some social contact. The appeal raised a significant complaint about the Assessor’s impartiality in proceedings affecting the appellant’s right to work as a doctor and the public interest in safe medical practice.

5. The circumstances, considered cumulatively, meant that a fair-minded and informed observer would see a real possibility that the judge might bring subjective impressions of the Assessor’s character and personality to the issue. The objection was therefore well-founded. The judge recognised the need to avoid excessive readiness to recuse, but concluded that real doubt should be resolved in favour of recusal.

The judgment records an appeal under section 40 of the Medical Act 1983 from determinations made by the General Medical Council’s Fitness to Practise Panel. The appeal was not determined on its merits because the judge recused himself.