Stubbs v The Queen

A judge’s prior involvement does not automatically require recusal. The decisive question is whether a fair-minded and informed observer would conclude that there was a real possibility of pre-judgment relevant to the later decision. The court must consider the nature and proximity of the earlier and later issues and the terms of the earlier ruling, including whether it was provisional or final. Final rulings on important issues after full argument may create apparent bias when the judge later sits on a separate appeal involving substantially the same issues. The presence of other judges on the appellate panel does not cure the problem. A retrial before the same judge after an aborted jury trial is different because the earlier rulings have no continuing effect.

Three appellants were convicted of murder, attempted murder and, in one case, firearms offences at a third trial before Jones J. Their first convictions had resulted in a retrial, and their second trial before Isaacs J had been aborted during the judge’s summing-up. When the appeals from the third trial were heard in the Court of Appeal of the Commonwealth of the Bahamas, Isaacs JA sat despite having made significant rulings at the aborted trial. The Court of Appeal rejected the recusal application and dismissed the appeals on 8 July 2016, with a dissent concerning Evans. The central issue before the Privy Council was whether Isaacs JA’s prior involvement created an appearance of pre-judgment requiring recusal.

The appeals were allowed unanimously. Lord Lloyd-Jones delivered the judgment of the Board.

1. The common-law and constitutional standard asks whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. Apparent bias includes a real possibility that the judge has approached the matter with a closed mind or has pre-judged it. This principle is consistent with Article 20 of the Bahamas Constitution and the right to an independent and impartial tribunal under article 6 ECHR.
2. Prior judicial involvement alone does not require recusal. The issue is fact-sensitive. Relevant considerations include the nature of the previous and current issues, their proximity, and the terms in which the earlier determinations were expressed. Judicial continuity may be valuable in successive rulings in the same proceedings, but it does not justify an appearance of pre-judgment in a separate appeal.
3. Isaacs J had made final rulings after full oral argument on major intermediate issues, including no case to answer, admissibility of the deceased witness’s evidence, and dock identification. The later appeal required substantially the same issues to be reconsidered. The rulings were not provisional and were not subject to an internal review procedure. The strength of the prosecution case, or the likelihood that an impartial tribunal would reach the same result, was irrelevant to the apparent-bias question. Sengupta v General Medical Council [2002] EWCA Civ 1104 and Hksar v Hossain were distinguishable because they concerned provisional permission decisions capable of reconsideration.
4. A retrial before the same judge after an aborted jury trial is materially different. The earlier rulings have been rendered ineffective by the abortion of the trial, and any repeated ruling can be challenged before an independent appellate tribunal. Conversely, the participation of one apparently biased judge in a multi-member appeal affects the whole decision because of the mutual influence of the panel members.
5. The Board endorsed the need to resist unmeritorious recusal applications and illegitimate judge-shopping. Nevertheless, the complaint was well founded. Isaacs JA should not have sat, the Court of Appeal’s decision was quashed, and the appeals were remitted to that court for rehearing. The substantive grounds of appeal were not determined.

• Privy Council: Appeals allowed unanimously on apparent-bias grounds; the Court of Appeal’s decision was quashed and the appeals remitted for rehearing: [2018] UKPC 30.
• Court of Appeal of the Commonwealth of the Bahamas: The recusal application was rejected on 4 June 2015. The appeals were dismissed on 8 July 2016, with a dissent concerning Evans.
• Earlier proceedings: The first convictions were set aside on appeal and a retrial ordered. The second jury trial before Isaacs J was aborted during the summing-up. A third trial before Jones J resulted in the convictions challenged in these appeals.