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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> KR (Perceived bias, fair hearing) Iraq [2004] UKIAT 00117 (26 May 2004) URL: https://www.bailii.org/uk/cases/UKIAT/2004/00117.html Cite as: [2004] UKIAT 117, [2004] UKIAT 00117 |
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APPEAL No. KR (Perceived bias- fair hearing) Iraq [2004] UKIAT 00117
Date of hearing: 5 April 2004
Date Determination notified: 26th May 2004
KR | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
"The point which Miss Birtles was making during the submissions was that the appellant had managed to emerge unscathed from the various determined attacks on him, a situation which I likened to a Hollywood movie, thinking of a particular situation usually in western, where the hero escapes a volley of hostile fire and then kills his enemy with one shot from a pistol at improbable range, but James Bond would have done as well. It struck me as a useful one line encapsulation of Miss Birtles' general credibility submission on the point. The appellant had obviously picked up the point when he had referred at the end to not acting like Rambo and Mr Moralli made the same point perfectly properly during his closing submissions. My comment was not intended to belittle the appellant's evidence but to summarise the submission being made at the time."
"To suggest that my approach to the appeal was thereby presumptuous making proceedings unfair is of course a matter for the Tribunal and not for me. I accepted some parts of the appellant's evidence but not others as can be seen from section 9 of the determination."
"Credibility? - Shot at times X 4 but never injured – others injured but not at App who was the actual target (Hollywood!)".
"Since the Tribunal decision in MNM, the issue of the test for determining apparent bias has been the subject of consideration by the House of Lords in Porter and Another v Magill [2001] UKHL 67. The test for apparent bias had been formulated by Lord Goff of Chieveley in R v Gough [1993] AC646 in the following terms:
"…having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the Tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him …"
That formulation of the relevant test was reconsidered in the light of Strasbourg jurisprudence by the Court of Appeal in Re Medicaments and Related Classes of Goods (No 2) [2001] 1WLR 700, who summarised the Court's conclusions as follows:
"When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the Tribunal was biased."
That formulation was approved by the House of Lords in Porter and Another v Magill save for deletion of the reference to "a real danger". In the leading judgment given by Lord Bingham of Cornhill, he said in this respect:
"Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg Court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased."
H J E Latter
Vice President