Samer Alabboud Alhasan, R (on the application of) v Director of Legal Aid Casework & Anor

A judge’s prior legal opinion, judicial decision, employment background or instructions for a party will not ordinarily establish apparent bias. The question is whether a fair-minded and informed observer would conclude that there is a real possibility that the judge’s mind is closed on an issue requiring determination.

Relevant considerations include the nature and proximity of the earlier and current issues, and the terms in which any earlier view was expressed. Overlap is insufficient where the earlier opinion was given long ago, did not determine the issue now before the court, and did not express a final or absolute view.

The claimant brought judicial review proceedings challenging a refusal by the Director of Legal Aid Casework to grant exceptional case funding for legal representation at an asylum interview. The claim also challenged the Lord Chancellor’s failure to provide legal aid for such representation to former unaccompanied asylum-seeking children who had turned 18 before interview.

Before the substantive hearing, the court was invited to consider recusal because the judge had co-authored a publicly available legal opinion in 2003 concerning legal representation at asylum interviews and proposed legal-aid fee limits. All parties agreed that the issue did not require recusal. The preliminary question was whether the prior opinion created a real possibility of apparent bias.

1. Recusal refused. The judge concluded that a fair-minded and informed observer would not consider that his prior legal opinion created a real possibility of bias. He therefore proceeded to hear the substantive claim.
2. The fact that a judge has taken the judicial oath is important but does not by itself exclude legitimate concern, particularly where a judge has publicly expressed firmly held views relevant to the case: Higgs v Farmor’s School [2022] EAT 101.
3. A judge’s employment background, previous instructions to act for or against a party, or previous judicial decisions will not usually give rise to apparent bias: Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 and Siddiqui v University of Oxford [2016] EWHC 3451 (QB). Adherence to an earlier judicial opinion does not itself show closed-mindedness: Davidson v Scottish Ministers (2004) SLT 895.
4. The issue may arise where earlier involvement could suggest that the judge’s mind is closed on a relevant issue. Relevant factors include the nature and proximity of the earlier and current issues and the language used in the earlier determination: Stubbs v The Queen [2018] UKPC 30. Criticism expressed in absolute terms, particularly where unnecessary to an earlier procedural decision, may create such an appearance: Mengiste v Endowment Fund for the Rehabilitation of Tigray and others [2013] EWCA Civ 1003.
5. A prior legal opinion given as counsel will not ordinarily create apparent bias: Kartinyeri v Commonwealth of Australia, cited in Davidson. Judges may also write extra-judicially and express views on legal issues. The decisive consideration is whether the tone suggests preconceived views so firmly held that the judge may be unable to approach the case with an open mind: Locabail and Hoekstra (No 3) (2000) JC 391.
6. Although the 2003 opinion overlapped with the present claim in discussing asylum interviews and legal representation, it did not address the difference in legal-aid provision between children and former unaccompanied asylum-seeking children, nor express a concluded view on the issue requiring determination. Its age, subsequent developments and non-absolute terms further supported the conclusion that recusal was unnecessary.

Not an appeal. The judgment determined the preliminary recusal issue before the listed substantive judicial review hearing.