HM Solicitor General v Ellis (Rev 1)

A judge who has previously formed an adverse view of a party’s conduct may need to recuse himself or herself from later proceedings involving that party, even where the later proceedings concern a different order and different evidence. The question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The court should act with particular caution where the earlier decision suggested a pattern of conduct and the issues and defence in the later proceedings remain undefined. Recusal is prudent where the judge cannot confidently exclude the possibility that prior views may create a predisposition on the merits.

HM Solicitor General brought contempt proceedings against Edward William Ellis for alleged breach of a General Civil Restraint Order. Mr Ellis applied for the judge, Mr Justice Jay, to recuse himself because he had previously dealt with proceedings involving Mr Ellis in July 2016 and had then expressed the view that there was a strong prima facie case that Mr Ellis had breached an earlier civil restraint order.

The judge initially refused the application, but reconsidered the matter after reviewing the earlier judgment and hearing transcript. The issue was whether his previous involvement gave rise to apparent bias.

1. Apparent bias. The applicable question was whether a fair-minded and informed observer, possessing the relevant facts, would conclude that there was a real possibility of bias. The judge rejected the allegation of actual bias.
2. Effect of prior involvement. The fact that the present contempt proceedings concerned a different civil restraint order and different evidence did not resolve the apparent-bias issue. In the earlier proceedings the judge had stated that Mr Ellis was probably in breach of an order and had described him as the driving force behind the conduct in question. That material could reasonably be viewed as showing that the judge had already formed an adverse view of Mr Ellis and his modus operandi.
3. Need for caution. The later proceedings were serious, and the judge did not know the nature of Mr Ellis’s defence. The issues were therefore undefined, and evidence might emerge which would make his continued involvement inappropriate. The need for caution was especially strong because the earlier material and the present allegations might be perceived as part of a continuing pattern of behaviour.
4. Disposition. On balance, the judge considered it prudent to recuse himself on the ground of apparent bias. The contempt application was directed to be heard on 14 December 2020 before a judge with no previous knowledge of Mr Ellis. The case was not to be listed before May J or Turner J.