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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A & Ors v Secretary of State for the Home Department  EWHC 1669 (Admin) (13 July 2005)
Cite as:  EWHC 1669 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Mr Justice Walker
| A, A, A, B, E, G, H, K, P, Q, I
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Keir Starmer QC, Miss Stephanie Harrison and Mr Sadat Sayeed (instructed by Tyndallwoods) appeared on behalf of the Appellants Q & I.
Mr Robin Tam (instructed by The Treasury Solicitor) appeared on behalf of the Respondent.
Hearing date: 13 July 2005
Crown Copyright ©
Lord Justice Kennedy:
Evidential status of the open judgments of SIAC
"… a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if the judge sits to hear a case say at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact."
And in Re: JRL ex parte CJL (1986) 161 CLR 162, again in the High Court of Australia, Mason J said at 185:
"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, a disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established' … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
"I accept that there will be some circumstances where such a fear would certainly be reasonable. If a judge has presided at a first instance trial and roundly concluded on the facts — after hearing disputed, perhaps hotly disputed, evidence — that one of the parties lacks all merit, everyone would accept that it would be unthinkable that he should sit on that party's appeal. He has committed himself to a view of the facts which he himself had the responsibility to decide. This is the kind of circumstance referred to the High Court of Australia in Livesey. It is also, I think, at least comparable with the state of affairs that arose in Hauschildt. In some such cases the judge's inability to open his mind on the appeal would not be just apparent, but real: if after a careful and professional review of all the evidence, given by witnesses whom, so to speak, he has looked in the face, he has arrived at the conviction that the party in question is a crook or a rogue, guilty as charged (whether the case is criminal or civil), he might not conscientiously be able to put himself back into a state of mind where he has no preconceptions about the merits of the case.
There may also be cases, though one hopes there will not be, in which a judge called on to make a preliminary decision expresses himself in such vituperative language that any reasonable person will regard him as disqualified from taking a fair view of the case if he is called on to revisit it."
Keene LJ gave a judgment to similar effect and Jonathan Parker LJ agreed.