Vatish v Crown Prosecution Service

Apparent bias is assessed from the standpoint of a fair-minded and informed observer, not the litigant. The observer is neither unduly sensitive or suspicious nor complacent and is assumed to know the relevant facts. The circumstances relied upon must be considered individually and cumulatively, but they must give rise to a realistic argument of bias. A tribunal member’s status as a lay member, ordinary judicial interaction with counsel, a later request for a judicial reference, or reversal of an interlocutory ruling will not, without more, establish apparent bias.

A former senior Crown Prosecutor brought Employment Tribunal claims alleging 46 acts of direct sexual discrimination or harassment. After a lengthy hearing, the claims failed on the facts and included adverse findings about the applicant’s good faith. Permission to appeal was sought on four grounds, but only apparent bias was pursued. Langstaff J refused permission, and His Honour Judge Peter Clark refused it on reconsideration under rule 3(10) of the EAT rules. The renewed application concerned alleged relationships between the Tribunal and CPS personnel, the treatment of the parties, a judicial reference, a reporting order, and consideration of a witness’s sexual orientation. The central issue was whether those circumstances, individually or cumulatively, raised a realistic argument of apparent bias.

1. Outcome. Lord Justice Burnett refused the renewed application for permission to appeal. The only ground pursued was apparent bias.
2. The correct perspective was that of the fair-minded and informed observer, not the litigant. The observer was neither unduly sensitive or suspicious nor complacent and was assumed to have acquired the relevant knowledge about the issues and the available information. This approach was consistent with Porter v Magill [2002] 2 AC 357 and Helow v Secretary of State for the Home Department [2008] 1 WLR 2416.
3. The Court also relied on Locabail UK Ltd v Bayfield Properties [2000] QB 451 and AWG Group v Morrison [2006] EWCA Civ 6 for the guidance that the answer to an apparent-bias question would ordinarily be obvious and that identified features would not ordinarily establish apparent bias.
4. The alleged connections with lay members of Employment Tribunals did not raise a realistic argument. Miss Crighton’s involvement was glancing, there was no evidence that the Tribunal knew of her role, and her integrity was not in issue. Miss Boot’s status as a lay member of another Tribunal did not disqualify her from giving evidence. Miss Haleema’s attendance and conversation reflected the sensitivity of the proceedings rather than apparent bias.
5. The joking exchange between counsel and the judge was inconsequential. A reasonably informed observer familiar with judicial appointments would not infer bias from counsel later asking the judge to provide a reference. The reference to Mr O’Connell’s sexual orientation and the overturning of the interlocutory ruling provided no support for the allegation.
6. None of the circumstances, whether considered separately or cumulatively, could give rise to a realistic argument on apparent bias. The application was therefore refused.

1. Employment Tribunal. The applicant’s claims were heard over 29 days in 2011 and dismissed in a detailed judgment issued in April 2012.
2. Employment Appeal Tribunal. Langstaff J refused permission to appeal on 12 July 2012. On reconsideration under rule 3(10) of the EAT rules, His Honour Judge Peter Clark also refused permission.
3. Court of Appeal (Civil Division). The renewed application, limited to apparent bias, was refused by Lord Justice Burnett on 1 July 2015.