Mitchell v Georges

Apparent bias is assessed by asking whether the fair-minded and informed observer, having considered the relevant facts and context, would conclude that there is a real possibility that the decision-maker is biased. The question is not whether actual prejudice or a closed mind has been proved. An interim report may properly be issued before the person concerned has given evidence where the terms of reference contemplate interim reporting. However, the report must not use language so firm and condemnatory that the observer would conclude that the decision-maker has already made up his mind and will not approach the remaining inquiry with an open mind.

The appellant, a former Prime Minister and Minister of Finance of Saint Vincent and the Grenadines, challenged the respondent’s continued conduct of a Commission of Inquiry into the failure of the Ottley Hall Project. The challenge concerned an Interim Report issued while the inquiry was suspended. The appellant alleged apparent bias and procedural unfairness, relying principally on the report’s strongly adverse language.

The High Court refused leave for judicial review. The Court of Appeal later granted leave concerning the Interim Report: Mitchell v Georges (2008) 72 WIR 161. The subsequent judicial review application was dismissed, and a further appeal was dismissed by the Court of Appeal. The central issue was whether the report would cause the fair-minded and informed observer to conclude that there was a real possibility that the Commissioner would not approach the remainder of the inquiry with an open mind.

1. Appeal allowed. The Board advised that the Commissioner should take no further part in the Commission. The parties were directed to make written submissions on the form of order and costs.
2. The applicable test was whether the fair-minded and informed observer, having considered the facts and context, would conclude that there was a real possibility that the Commissioner was biased: Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, at para 103. The relevant question was whether the Commissioner would approach the remainder of the inquiry with an open mind and conduct it impartially. The inquiry’s non-adversarial character did not displace that test.
3. The Court of Appeal had placed excessive emphasis on whether the Interim Report proved a concluded view, a closed mind or actual prejudgment. Those were not the questions required by the apparent-bias test. The issue was the view the informed observer would take, not whether actual bias had been established.
4. Context was material. The inquiry involved detailed examination of the appellant’s conduct over a substantial period, and the appellant faced serious allegations. The terms of reference contemplated interim reports, so the Board did not decide the appeal on the basis that the appellant had not yet given evidence.
5. The Interim Report contained too many firm and colourful statements describing the appellant’s conduct as involving fraud, misbehaviour, dereliction of duty, irresponsibility and deliberate wrongdoing. Although the report referred to possible criminal acts and the evidence then available, its language communicated conclusions of conviction and strong disapproval. The surrounding circumstances, including the report’s proximity to a general election and the similarly strong language of the later Salmon letter, reinforced the appearance that the Commissioner had made up his mind.
6. The fair-minded and informed observer would therefore conclude that there was a real possibility that the Commissioner had decided that the appellant was at the heart of the wrongdoing and would not be willing to change his mind. His final report would consequently not be impartial.

• Privy Council: Appeal allowed on 18 December 2014. The Board advised that the respondent should take no further part in the Commission; costs and the precise form of order were to be addressed after written submissions.
• Eastern Caribbean Court of Appeal: On 25 June 2012, the Court dismissed the appellant’s appeal from the judicial review decision, holding that the Interim Report did not demonstrate a closed mind or irreversible prejudgment and that there was no procedural unfairness.
• High Court: On 23 June 2011, Thom J dismissed the judicial review application and lifted the stay, holding that the fair-minded and informed observer would not conclude that there was a real possibility of bias and that the Interim Report did not contain concluded findings.
• Eastern Caribbean Court of Appeal: On 7 April 2008, the Court granted leave to seek judicial review concerning the Interim Report and maintained a stay pending determination: Mitchell v Georges (2008) 72 WIR 161.
• High Court: On 14 September 2007, Bruce-Lyle J refused leave to apply for judicial review and lifted the stay.