Bias Flashcards
2 categories of interest that result in automatic disqualification.
- Financial interests (Dimes)
2. Where D’s decision promotes a cause in which the judge, as well as one of the parties, is involved (Pinochet No.2).
Locabail
- Financial interests fall outside Dimes if they are so remote and indirect as to be “incapable of affecting D’s decision”
- C may waive her right to object by deciding to proceed after being informed of D’s interest, for it is not open to a litigant to wait and see how her claims turn out before deciding whether to complain of bias
Gough (test of bias)
Does the court conclude that in the circumstances there is a real danger (in the sense of possibility, rather than probability) of bias on the part of the relevant member of the tribunal in question?
New 3 stage test of bias in Porter
1) The court must first ascertain all the circumstances which would have a bearing on the suggestion that D was biased.
2) It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias.
3) Even where C genuinely holds fears of bias, those fears must be objectively justified if they are to found the allegation of bias.
Taylor v Lawrence (significance + facts)
The courts have shown willingness to impute specialist knowledge to the hypothetical observer (here knowledge about the structure of the English legal profession and the tradition of close relations between the judiciary and the legal profession, and that these relations promoted an atmosphere totally inimical to the existence of bias).
Lawal
“A reasonable man is neither complacent nor unduly sensitive or suspicious”
Gillies (ratio + facts)
“It is to be assumed that the fair-minded and informed observer is able to distinguish between what is relevant and what is irrelevant, and when exercising his judgment to decide what weight should be given to the facts that are relevant”.
He was also taken to appreciate that there was no reason the doctor would not apply her medical expertise in the same professionally detached manner when sitting as a tribunal member as she would when acting for the Benefits Agency
Virdi (2 characteristics of FMO)
- The FMO is not restricted to publicly available facts, but must also be taken to know those facts which would have been obtained on inquiry of the decision-maker
- Being fair-minded, the FMO would not conclude that a tribunal appeared to be biased w/o seeking to obtain the full facts and any explanation it could supply
Belize (criticism + dissent)
Despite acknowledging the danger of imputing insider knowledge to the FMO, Lord Kerr and the majority fell into this trap, deeming the FMO to know details about the appeal process which they conceded were not publicly available; this in effect renders the Porter test the same as the Gough test.
Lord Brown, dissenting, noted “the whole point of inventing the FMO is that he does not share the viewpoint of a judge” and concluded that “the ordinary person in Queen’s Square market” would perceive the appearance of bias; this for him was sufficient.
Lewis (2 points)
- When a claim for bias/predetermination is brought against a political decision-maker, the court should put itself in the shoes of the FMO and make its own assessment of the possibility of predetermination, noting that the importance of appearances will be more limited in this context than a judicial/quasi-judicial one.
- “The notion that a planning decision is suspect for bias or predetermination just because all members of a political group have voted for it is an unwarranted interference with the democratic process.”
Distinguish relevancy and bias.
• that bias must have actually affected the decision, for the doctrine presumes there is a set of considerations so inimical to good administration they may never be properly considered.
Why does Elliott object to eliding predetermination and bias? What approach does he prefer?
The rule against bias is concerned only with influences upon the decision-making process so toxic they cannot even be permitted to be seen to operate.
The approach in C and Kirkstall is to be preferred – predisposition towards a particular decision (which will often be perfectly legitimate) belongs in the category of predetermination; “the source of potential bias has to be a personal interest to be potentially objectionable in law”.
Ringeisen v Austria (ratio + problems)
ECtHR decided that Art.6(1) does apply to administrative proceedings IF they are decisive of civil rights and obligations.
Art.6(1) was originally intended to regulate the conduct of criminal/civil courts in determining private law rights and extending it beyond the court-based adjudicative and adversarial model is problematic – not all admin decision-makers are or should be politically independent
1st Stage of Art.6 test for bias (distinguish Tsfayo, Salesi)
- Does the decision determine a civil right of which C may consider himself the holder, or does it merely relate to a benefit “dependent upon a series of evaluative judgments by the provider” as to whether the statutory criteria are satisfied and how the need for the benefit should be met? In the latter case Art.6 does not apply (Ali).
Tsfayo and Salesi belong to the “mainstream” of Art.6 cases in which the benefit in dispute, being precisely defined by statute, is not one within the discretion of the decision-maker.
X School Governors
Laws LJ suggested a decision with a major role in the eventual determination of a civil right would suffice as “determinative of civil rights and obligations”
