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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 >> M, R (on the application of) v Mental Health Review Team  EWHC 2791 (Admin) (07 December 2005)
Cite as:  EWHC 2791 (Admin)
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Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of M
|- and -
|THE MENTAL HEALTH REVIEW TEAM
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Martin Chamberlain appeared on behalf of the Defendant
Crown Copyright ©
The Honourable Mr Justice Bennett:
"a) The Tribunal is satisfied that the patient is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment
b) The Tribunal is satisfied that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment."
"It is apparent from the evidence of Dr McAllister and Mr Turner of the Clinical Team that Mr M has a lengthy history of serious and dangerous criminal offending and of mental illness. Most of his adult life has been spent either in serving prison sentences or in psychiatric hospitals. He spent 2 years in Broadmoor Hospital from 1998 to 2000. Since at least 1990 his offending history and psychiatric history are inextricably linked. His index offences of January 2003 were committed after he had persuaded his community clinical team to end his psychotropic medication and and had then apparently disengaged from contact with them – thought he told the Tribunal that it was the community team who disengaged from him. He has been at the B… Centre since February 2003.
"For the first year of his current stay in hospital Mr M was reluctant to take his medication and showed little insight. He was also regularly found to have been abusing cannabis. By January 2004 his mental state was stable and his cannabis use ended. However he then seems to have persuaded his then RMO to reduce his medication below the therapeutic level. The Tribunal is in no doubt that it was for this reason that his mental state deteriorated in April 2004 and he lost his insight. Happily, following a significant increase in medication, he resumed stability within a month. Since then he has made good progress, and he has shown no irritability or aggressive or threatening behaviour. In September he transferred to the rehabilitation unit at [X], a hostel within the hospital campus. He now has unescorted community leave and has been out on 8 occasions during the past 4 weeks, without incident.
"The Tribunal accepts the evidence of Dr McAllister that Mr M continues to suffer from paranoid schizophrenia, the symptoms of which are currently controlled by appropriate medication. Dr McAllister has minor concerns that he may not be as quite as well as he had been, but regards these as no more than possible warning signs, rather than indications of actual relapse.
"Mr M recognises that the medication has helped to stabilise him and has expressed willingness to take his long-term. But it is clear to the Tribunal not only from the evidence of Dr McAllister but also from his answers at the hearing that he is not really accepting of his diagnosis. He regards any mental illness he might have had to be simply a consequence of stress. He persuaded his then RMO to reduce his medication below a therapeutic dose – a pattern which could also be seen during his last periods of living in the community. The Tribunal is not persuaded that he would be compliant with medication in the community. He is reluctant to acknowledge responsibility for the index offences. It is commendable that he has abstained from cannabis since January, and he is adamant that he will not take it in the future. However he does not seem to accept it's potential to destabilise his mental state.
"It is the intention of the Clinical Team that the stability of Mr M's recovery should be tested by a period of living in the less restrictive surroundings of [X] and a period of graduated community leave. This is still in its early stages. Until this has been successfully undertaken for a considerably longer period, the Tribunal is satisfied by the evidence of Dr McAllister and of Mr Turner that Mr M's illness remains of a nature which requires his continued liability to detention for treatment.
"Mr M asks that he be discharged on a deferred conditional discharge and assures the Tribunal that he would comply fully with conditions. The Tribunal congratulates Mr M on the progress he has made. To have reached the [X] rehabilitation unit is a notable achievement. However, for the reasons set out above the Tribunal is sure that a discharge at this stage would be premature."
"The common law test for bias has been authoritatively settled by the recent decisions of this House in Porter v Magill  2 AC 357 and Lawal v Northern Spirit Limited  ICR 856: "The question is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased."
Article 5 (4) provides:-
"Everyone who is deprived of his liberty by…. detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
The relevant part of Article 6 (1) provides:-
"In the determination of his civil rights…., everyone is entitled to a fair and public hearing within a reasonable time chaired by an independent and impartial tribunal….."
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or falls to be imposed under section 109(2) of the Powers of Criminal Courts (Sentencing) Act 2000, or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place under guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
"(2) The conditions referred to in subsection (1) above are that-
(a) the court is satisfied, on the written or oral evidence of two
registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either-
(i) the mental disorder from which the offender is suffering
is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or
(ii) in the case of an offender who has attained the age of 16
years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."
"(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as a "restriction order"."
"(1) Where application is made to a Mental Health Review Tribunal by
or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and –
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied-
(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment of from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment;…"
"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if-
(a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(I) or (ii) of section 72 (1) above; and(b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
(2) Where in the case of any such patient as is mentioned in subsection (1) above -
(a) paragraph (a) of that subsection applies; but(b) paragraph (b) of that subsection does not apply, the tribunal shall direct the conditional discharge of the patient.
(3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect immediately."
"….he is then suffering from mental illness…."
and in s.72 (1) (b) (ii) are:-
"that it is necessary….that he should receive such treatment"
"(2) As the Master of the Rolls pointed out in para 30 of his judgment quoted above, the condition of many of those suffering from mental disorder will not be static. Episodes of acute illness may be followed by episodes of remission. Thus it does not follow that a tribunal decision, however sound when made, will remain so. Other things being equal, the longer the period since the decision was made the greater the chance that the patient's mental condition may have altered, whether for better or worse.
"(3) It is plain from the language of sub-paragraphs (a)(i) and (b)(i) of section 72(1), quoted above, that the focus of the tribunal's inquiry into the mental health of the patient is on whether he is not "then suffering" from mental disorder or mental illness. "Then" refers to the time of the tribunal's review and the tribunal has no power to consider the validity of the admission which gave rise to the liability to be detained: see Ex p Waldron  QB 824, 846. The tribunal will doubtless endeavour to assess a patient's condition in the round, and in considering issues of health, safety and public protection under sub-paragraphs (a)(ii) and (b)(ii) of section 72(1) it cannot ignore the foreseeable future consequences of discharge, but the temporal reference of "then" is clear and the tribunal is not called upon to make an assessment which will remain accurate indefinitely or for any given period of time."
"we recommend that, in the interests of ensuring that hearings are both fair and seen to be fair, there be a clearer distinction between the roles of the tribunals as a determining body and as a review tribunal. So, for example, a member of a tribunal that has imposed an order for assessment or treatment should never hear the review or appeal of that order."
"Under the present Act, the question in law that the MHRT must consider for patients who appeal against their detention subsequent to court orders, whether they are restricted patients or not, is whether the Tribunal panel is satisfied by the evidence of the detaining authority that the patient is at that point suffering from any classified form of mental disorder of a nature or degree that makes detention in hospital for medical treatment necessary in the interests of his own healthy or safety or with a view to the protection of others. Whilst, in practical terms, the question before most Tribunal hearings is therefore whether the patient's improvement or the passage of time means that conditions justifying formal powers are still met, rather than whether they were ever met, a patient should be able to appeal on the grounds that the imposition of powers was unjustified from the start, and such a patient must be confident that this would be considered impartially."
"(v) a real danger of bias might be thought to arise from personal friendship or animosity between the member and any other person involved in the case; or if the member had been closely involved with any such person in a professional relationship such as court proceedings; or when, in similar circumstances, the member has in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such evidence with an open mind on a later occasion;…."
" The guidance operative from April 2005, which we have quoted at paragraph (v) above, does of course contain the suggestion of "a real danger of bias" where the Tribunal member had been closely involved with any other person involved in the case "in a professional relationship such as court proceedings". We take the view that the relationship between a sentencing judge and a defendant must be construed to fall within this description. If it is the view of the Tribunal administration that it does not do so, either in general or with regard to the particulars of this case, we hope that the court will test that view carefully."
"This is the overriding question and must be the question to be answered by any member concerned about bias."
"5. Given the very broad nature of the above definition, we have decided not to attempt to list or define the factors which may, or may not, give rise to a real possibility of bias. Everything will depend on the facts and issues in each case. The religion, ethnic or national origin, gender, age, class, means or sexual orientation of a member should not form the basis of a sound objection. Nor, at any rate ordinarily, should an objection based on matters of social or educational or service or employment background or history, or that of the member's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous decisions; or extra-curricular utterances; or membership of the same professional body, circuit, local law society or chambers.
"6. By contrast, a real danger of bias might be thought to arise from personal friendship or animosity between the member and any other person involved in the case; or if the member had been closely involved with any such person in a professional relationship such as court proceedings; or when, in similar circumstances, the member has in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such evidence with an open mind on a later occasion; or if on any question at issue the member had expressed views in such extreme and unbalanced terms as to throw real doubt on his ability to try the issue with an objective mind; or if, for any reason, there were real grounds for doubting the ability of the member to ignore extraneous consideration, prejudices and predilections and bring an objective judgment to bear on the issues."
"Nor, at any rate ordinarily, should an objection based on …. previous decisions…." [be the basis of a sound objection].
"In our view, a member should refuse appointment to a tribunal if the appointment would raise legitimate questions about the member's ability to exercise independent judgment. In the present case, a restricted patient is in a significantly different position from an unrestricted patient. A restriction order imposes real limits on an individual's freedom and is a reflection of the severity of the index offence and the antecedents of the offender. As such, it imports into a hospital order, which is designed for treatment, a quasi-criminal sanction. Criminal penalties should be appealed to, or reviewed by, an independent body.
"Where a simple hospital order is being reviewed, the MHRT is considering foremost the recovery, or otherwise, of the patient from the mental disorder. The tribunal is not concerned with conditions of discharge or recall of the patient. Where a patient has fully recovered, he can still be made subject to recall even if no conditions are imposed. This decision is, therefore, not simply a question of the patient's health but is a judgment on the wider public safety issue. The MHRT Rules, themselves, acknowledge the importance of a restricted hearing by providing that only experienced criminal practitioners can be presidents. This incorporates into such a hearing an element of criminal procedure and therefore means that issues of fairness should be that much more important. A judge who has already decided that the seriousness of the index offence and the antecedents of the offender are such that a restriction order ought to be imposed, should not, with respect, also decide whether to discharge that offender at a later date.
"Restriction orders are designed for the most serious cases and usually continue for several years, if not longer, after discharge. The conscious or subconscious desire to ensure that the correct decision was originally made would, it is submitted, cause a reasonable person to question the impartiality of the judge who imposed the restriction order. The fact that the restriction order could still be in force on discharge does not lessen this concern, since the judge's original decision would have taken into account all of the offender's circumstances and it is unrealistic to dissect all the factors relevant to that decision. The judge's reassurance that it was perfectly proper for him to consider the application for discharge also does not alleviate this concern.
"In these circumstances, MIND considers that a fair minded and informed observer would conclude that there was a very real possibility of bias where the judge, who imposed the restriction order, is reviewing its status just over a year later. At the very least it does not look very fair."
"8. We would endorse the judge's summary of the relevant legal principles. We would add only this comment in relation to the judge's statement that one must consider a case where unconscious bias is alleged by examining "other similar analogous situations". Lord Steyn stated that these "may arguably throw light on the problem". The natural reaction of the lawyer to any problem is to look for case precedent and this is true even where the issue is essentially one of fact. In such circumstances precedent can be helpful in focusing the mind on the relevant issues and producing consistency of approach. In a case such as the present, however, the search is for the reaction of the fair-minded and informed observer. The court has to apply an objective assessment as to how such a person would react to the material facts. There is a danger when applying such a test that citation of authorities may cloud rather than clarify perception. The court must be careful when looking at case precedent not to permit it to drive common sense out of the window."
If I may respectfully, and I hope not inaccurately, paraphrase that passage, it is that the court, in its search for the reaction of the fair-minded and informed observer, should keep its eye on the ball, i.e. the facts material of the case.
"One can accordingly understand that an accused might feel some unease should he see on the bench of the court called upon to determine the charge against him the judge who had ordered him to be placed on detention in remand and also had interrogated him on numerous occasions during the preparatory investigation….."
"Furthermore, through the various means of inquiry which he will have utilised at the investigation stage, the judge in question, unlike his colleagues, will already have acquired well before the hearing a particularly detailed knowledge of the – sometimes voluminous - file or files which he has assembled. Consequently, it is quite conceivable that he might, in the eyes of the accused, appear, firstly, to be in a position enabling him to play a crucial role in the trial court and, secondly, even to have a pre-formed opinion which is liable to weigh heavily in the balance at the moment of the decision."
"45. The Court's task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected Mr Hauschildt gave rise to a violation of Article 6 para 1 (art. 6-1).
"48. Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see, mutatis mutandis, the De Cubber judgment previously cited, Series A no. 86, p. 14, para. 26).
"This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive (see the Piersack judgment of 1 October 1982, Series A no. 53, p. 16, para. 31). What is decisive is whether this fear can be held objectively justified.
"49. In the instant case the fear of lack of impartiality was based on the fact that the City Court judge who presided over the trial and the High Court judge who eventually took part in deciding the case on appeal had already had to deal with the case at an earlier stage of the proceedings and had given various decisions with regard to the applicant at the pre-trial stage (see paragraph 20-22 and 26 above).
"This kind of situation may occasion misgivings on the part of the accused as to the impartiality of the judge, misgivings which are understandable, but which nevertheless cannot necessarily be treated as objectively justified. Whether they should be so treated depends on the circumstances of each particular case."
"Thus the difference between the issue the judge has to settle when applying this section and the issue he will have to settle when giving judgment at the trial becomes tenuous."
"36. I consider, in line with a submission made by Mr Pollock, that an affirmative answer to this question would travel beyond whatever is the perception of our courts and judges that may be entertained by the fair-minded and informed observer, whoever he may be. It is not only lawyers and judges who in various states of affairs may be invited – they may invite themselves – to change their minds. Absent special circumstances a readiness to change one's mind upon some issue, whether upon new information or simply on further reflection, and to change it from a previously declared position, is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis. It is surely a commonplace of all the professions, indeed of the experience of all thinking men and women."
"(6) who is the fair-minded and informed observer?
"37. Our fair-minded and informed observer must surely have these matters in mind. That does not turn him into a notional lawyer. It merely reflects his fair-mindedness. However, much we may in the name of public confidence be prepared to clothe our observer with a veil of ignorance, surely we should not attribute to him so pessimistic a view of his fellow-man's own fair-mindedness as to make him suppose that the latter cannot or may not change his mind when faced with a rational basis for doing so. That is, I think, what this case involves: not merely the ascription to the notional bystander of a putative opinion about the thought –processes of a judge, but the ascription of a view about how any thinking, reasonable person might conduct himself or herself when, in a professional setting, he or she is asked to depart from an earlier expressed opinion. The view which Miss O'Rourke submits should be ascribed to the bystander does much less than justice, I think, to the ordinary capacities of such a person. In my judgment, therefore, it is not a view which the fair-minded and informed observer would entertain."
"(7) The Adversarial System and the Legal Culture
"38. As I have indicated (paragraph 9) Miss O'Rourke accepts that the bystander may be taken to possess "some knowledge of the legal culture". He would know of the central place accorded to oral argument in our common law adversarial system. This I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges in fact change their mind under the influence of oral argument is not an arcane feature of the system; it is at the centre of it. Knowledge of it should, in my judgment, be attributed to the fair-minded and informed observer; otherwise the test for apparent bias is too far distant from reality.
"48. I am conscious that in stressing these differences I am drawing on my own experiences as a judge, whereas one is concerned for present purposes with the way in which a fair-minded and informed observer would regard these procedures. It is not easy for a professional judge to put himself or herself in the position of an ordinary litigant or member of the public who does not possess such insight into and experience of the judicial decision-making process. Yet that is was has to be done if proper regard is to be had for the need to maintain public confidence in our procedures. However, the application before us postulates that the fair-minded and informed observer knows of the refusal of permission on the papers, since that is the very foundation of the allegation of bias. Such an observer must also be taken to know such a refusal is not the end of the road, because the matter has progressed to a full appeal hearing, and it is therefore to be assumed that an observer who is indeed "informed" is conscious of the sequence of procedures between the initial lodging of the written Appellant's Notice seeking permission to appeal and the substantive appeal hearing. That degree of knowledge is sufficient for him to conclude that there is no real possibility of bias, because it is the existence and nature of those procedural stages which, to my mind, lead properly to the conclusion that the judge in question still retains an open mind at the substantive appeal hearing. An uninformed observer might think differently, but no system can guard itself against criticism by the uninformed, nor does it need to adapt itself in what would be a vain attempt to deflect such criticism."
"Mr Thorold on the Applicant's behalf accepts on authority that the proper test in a case of this sort and is this: Would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair hearing would be possible?"
"It does not seem to me that the point which was raised upon the obligation not to discharge until satisfied of the matters to which I have referred and the fact that the liberty of the subject is involved, affects the constitution of the Tribunal, at any rate in this case, where the only other element advanced is the short period of time between the two hearings. This is not the case as was the position in R v Frankland Prison Board of Visitors, Ex parte Lewis  1 All ER 272, where the visitors had both administrative and disciplinary functions. This is a case in which the Tribunal had a statutory responsibility to hear the matter in accordance with the Rules. But at the end of the day, could the reasonable and fair minded person sitting in court and knowing all the facts have a reasonable suspicion that this applicant would not have a fair hearing, that a fair hearing would not be possible?
"I cannot think that any such person could have formed that view. Indeed, it might even be arguable that there are advantages in a President sitting on the recurring applications of a particular patient, since, as is apparent from what I have read from the decisions given, one of the most important features is to, in effect, monitor the progress of a patient, as quite clearly was done here in that it was far too early. In the second, the Tribunal records further progress since the last Tribunal. One can, I think, understand why this Applicant with his condition might form the view which he did, but I do not consider that that is the appropriate test. It is not his subjective view that matters. It is the reasonable and fair-minded person's objective view of the situation.
"To my mind, it would be quite wrong for this court to lay down that in the case of a particular applicant in successive applications as are permitted, that the Constitution of the Tribunal or the person presiding must as a matter of law be changed each time. I do not think that this is the law. I do not think it would be good practice. I think it would be quite wrong to put that obligation upon either the approved legal members or upon those who have to concern themselves with the administration of the Tribunal. Whether or not that extends to the membership, other than the President, is not for me to determine today."
a) The hearing in September 2003 was conducted completely in public.
There was nothing which the judge knew the Claimant and the public did not know. The judge made his decision under ss.37 and 41 of the MHA which required him to consider the facts and the evidence as they then stood.
b) In November 2004, which I am prepared to accept in the context of the instant case is a comparatively short time after September 2003, the judge, as part of the Tribunal considering the Claimant's case, was required to consider the matters I have identified in ss.72 and 73 of the MHA. The Tribunal had no power at all to question the validity of the sentence passed in September 2003. Therefore as a matter of logic and common sense there can be no question of the judge being swayed by a conscious or sub-conscious desire (even if one existed) to uphold the sentence he passed in September 2003. On the contrary, he was specifically enjoined by the authorities (viz von Brandenburg) not to consider its validity. Further, the decision to be made in November 2004 could not question the propriety of the sentence in September 2003.
c) The decision the Tribunal had to make in November 2004, was not the same, or even substantially the same, as that made by the judge in September 2003. First, in November 2004 there was no issue or dispute that the Claimant was suffering from a requisite mental illness. Even if there had been a dispute on this issue it would have made no difference since the Tribunal had to consider the position as at November 2004. Second, the evidence before the Tribunal concerned how the Claimant had progressed (or not) since September 2003 and whether he could then be safely released (conditionally) into the community. It is thus apparent from the foregoing and the nature of the reasoning of the Tribunal that the issues in November 2004 were factually different from those in September 2003.
d) There can be no basis for saying that the judge might have had information from September 2003 (which Miss Morris was quite unable to identify) which may have affected his mind in November 2004.
e) In any event the fair-minded and informed observer would not attribute to the judge an inability or reluctance to change his mind when faced with a rational basis for doing so.
f) Miss Morris accepted, rightly in my judgment, that proceedings before the Tribunal were quasi-adversarial. Oral argument plays a vital role in promoting a change of mind of the Tribunal or one or more of its members.
g) neither the domestic nor the European authorities, whether enunciating principle or looked at as their own facts, are persuasive that a fair-minded and informed observer, having considered the facts of the instant case, would say that there was a real possibility of bias on the part of the judge. Indeed, Mackman is the closest authority to the facts of the instant case and is supportive of the Defendant's submissions.
h) I reiterate paragraph 46 above.
i) the views of the Commission and MIND would, I am sure, be considered in the instant case by a fair minded and informed observer, but could not be given very much weight for the reasons I have sought to give and also when balanced against the matters I have set out in sub-paragraphs (a) to (g) above.
j) the fifth reason given by Miss Morris (see paragraph 31 above) I am prepared to accept would be considered by the fair-minded and informed observer but could not tip the balance in favour of the Claimant's case in the light of the matters set out in sub-paragraphs (a) – (g) above.
"all the circumstances which give use to the objections are known to the applicant and the waiver is unequivocal."
per Lord Hope of Craighead at paragraph 53 of Millar v Dickson  1 WLR 1615. At paragraph 56 Lord Hope referred to Bulut v Austria 24 EHRR 84 where the European Court of Human Rights observed:-
"In any event, it is not open to the applicant to complain that he had legitimate reasons to doubt the impartiality of the court which tried him, when he had the right to challenge its composition but refrained from doing so."
"The power to adjourn is a fundamental aspect of the obligation resting on all decision-making bodies to hear both sides, for this necessarily means giving each party a fair opportunity to put its case and to contest what others are saying. Accordingly a power to adjourn where the interests of fairness require it will ordinarily be implied by the courts wherever it is not expressly or necessarily excluded. In many cases, the present included, rules having the force of law make express provision at large for the tribunal to adjourn a hearing. As an aspect of procedural fairness the exercise of this power is classically a free-standing public law obligation and justiciable as such. It is not a simple discretion challengeable only upon what have become known as Wednesbury grounds: see R v Thames Magistrates Court, ex parte Polemis  1 WLR 1371, citing Local Government Board v Arlidge  AC 120, at p 132 Viscount Haldane LC:
"….when the duty of deciding an appeal is imposed, those whose duty it is to decide must….give to each of the parties the opportunity of adequately presenting the case made."
"It follows that in the ordinary case, where the power of adjournment is at large, there is no true margin of appreciation for the tribunal; the court itself will decide on the relevant material whether fairness required an adjournment. That this is so is pointed up by the decision of the Court of Appeal in R v Immigration Appeal Tribunal ex parte Adrees (1996) 18 April (unreported), a case which concerned a power of adjournment which by rule was conditional upon the tribunal 'being satisfied that there was good cause for the adjournment'."