October 19th, 2018 by James Goudie KC

When does involvement at an earlier stage give rise to an appearance of bias? That was the issue in Stubbs v The Queen [2018] UKPC 30.

Two sub-issues were whether it was material that the previously involved individual would now be part of a panel; and whether any apprehension of bias was assuaged by the passage of time. Neither factor was accepted as being a sufficient justification for non-recusal.Lord Lloyd-Jones said:-

“15.    The appearance of bias as a result of pre-determination or pre-judgment is a recognised ground for recusal. The appearance of bias includes a clear indication of a prematurely closed mind …”

“19.    The degree of proximity between the subject matter of the earlier decision and the later decision can clearly have an important bearing on the appearance of bias. …”

“32.    The respondent …relied upon the observation of Lord Bingham in Locabail … that the greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be. … The Board considers, however, that in the context of this case, the passage of time could have done little to diminish the concern which would legitimately be created in the mind of a fair-minded and informed observer …

  1.      Finally, …, the fact that Isaacs JA was not sitting alone to hear the appeal cannot assist the respondent. The whole point of the appeal was that three judges should consider the issues afresh and without any pre-determination or pre-judgment. If there were valid grounds requiring Isaacs JA to recuse himself, they apply with equal force whether he sat alone or in company. Each member of the Court of Appeal will have played a full part in the deliberation and resolution of the issues raised on the appeal. The mutual influence of each member of the court over the others necessarily means that if any of them was affected by apparent bias the whole decision would have to be set aside …”

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