Yiacoub and another v The Queen

The common-law requirement that justice be seen to be done is assessed objectively. The question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The assessment concerns the process as a whole and protects against an appearance of absent independence or impartiality, even without actual influence or partiality. A judge who sat at trial must not use an administrative power to select the presider of an appeal from that trial. The defect invalidates the appellate process, not the convictions themselves. The appellate decision should be quashed and the appeal reheard by a differently constituted court.

The appellants were convicted after a criminal trial before three Senior Judges sitting as the Resident Judge’s Court under the Courts (Constitution and Jurisdiction) Ordinance 2007. One of the trial judges was also the Presiding Judge of the Senior Judges’ Court and, under section 4(3), oversaw the constitution of the appellate panel. The appellants’ appeal was dismissed by the Senior Judges’ Court. They appealed to the Privy Council, arguing that the Presiding Judge’s role created an appearance of insufficient independence and impartiality. The central issue was whether the appellate arrangements complied with the objective common-law requirement that justice must be seen to be done.

Lord Hughes delivered the judgment of the Board. The appeal was allowed to the extent that the decision of the appellate court was quashed and the appellants’ appeal was directed to be reheard. The convictions themselves were not rendered unsafe.

1. Objective impartiality. The common-law test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. In this context, bias denotes an absence of demonstrated independence or impartiality. The objective appearance of those qualities is as important as their existence in fact. The approach was consistent with the European Convention requirement that impartiality be assessed objectively, as discussed in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, Findlay v UK (1997) 24 EHRR 221 and Millar v Dickson [2002] 1 WLR 1615.
2. Application to the appellate arrangements. The Presiding Judge had been a member of the trial court. His administrative function under section 4(3) of the Courts (Constitution and Jurisdiction) Ordinance 2007 included overseeing the constitution of the appellate panel and nominating another judge to preside. Viewed as a whole, that process created an appearance of lack of independence and impartiality, notwithstanding the absence of any suggestion of actual influence or partiality. The safeguards considered sufficient in Belize Bank v Attorney General of Belize [2011] UKPC 36 did not remove the material distinction that the judge in the present case was selecting the presider of an appeal from a court of which he had been a member.
3. Remedy. The defect lay only in the appeal. The appellate decision was therefore quashed, and the appeal was to be reheard before a court containing no judge who had sat at the trial or on the first appeal. The constitution of that court should, if practicable, be placed under the administrative responsibility of the next most senior uninvolved judge. If necessary, acting judges could be appointed under section 9 of the Ordinance.

• Privy Council — [2014] UKPC 22: appeal allowed to the extent that the appellate decision was quashed and the appeal was ordered to be reheard.
• Appeal Court of the Sovereign Base Areas of Akrotiri and Dhekelia — the appellants’ criminal appeal to the Senior Judges’ Court was dismissed.