In Sivapatham (Appearance of Bias: Sri Lanka) [2017] UKUT 293 (IAC) (7 July 2017) frustrated novelist and president of the Upper Tribunal McCloskey J considers the law surrounding judicial bias in the tribunal.

As with previous exponents of the art (see Denning LJ, or Moses LJ), judgments of the President are almost always entertaining on some level, written with eloquence and a sense of the dramatic, in ornate prose.

This determination is no different, and brings together important guidance on the steps to be taken where judicial bias is alleged, and the relevant legal principles for a court hearing any such allegation.

The Sivapatham allegations

The particular facts of the case are not of great relevance to the principles laid down in the decision, but Mr. Sivapatham was a Sri Lankan national who had claimed asylum and whose claim had been refused. Importantly, he also relied on his rights under Article 8 ECHR and attended the tribunal with his wife and children.

At the First Tier Tribunal hearing, the judge appears to have turned up and launched into a diatribe about the appellant’s credibility before the case had even started. This is set out in a witness statement of the representative – who recuses himself from the Upper Tribunal hearing in order to give evidence – and also that of the appellant himself, who described the judge as ‘hostile from the outset’.

In addition, the judge refused to hear evidence from the Appellant’s two children who were present at the tribunal because ‘no application was made’ for them to give evidence, and they could apparently not add anything more than the appellant would be able to himself.

In the Upper Tribunal, the appellant ran two arguments: firstly, that the determination of the first-instance judge was infected by apparent bias as a result of the judge’s…well, apparent bias; and secondly, that the hearing was unfair following his failure to hear evidence from potential witnesses.

If made out, both would amount to material errors of law requiring the original case to be re-heard.

The law of bias

The first step in any allegation of judicial bias, McCloskey finds, is to establish what happened at the hearing. This follows the approach of the House of Lords in the case of Lawal v Northern Spirit [2003] UKHL 35.

The President also cites Wagner (advocate’s conduct – fair hearing) [2015] UKUT 655 (IAC) which essentially describes the legal wild west of the lower tribunal, which is ‘not a court of record’ and where transcripts of hearings are not available.

Wagner also suggests a list of helpful documents which might be submitted to shed some light on the events at hearing, including notes taken by representatives and judges, and even witness statements from the advocates involved.

The burden of proof in showing apparent bias lies with the individual making the allegation to the normal civil standard.

The law in relation to apparent bias – to be distinguished from actual bias – was set out recently in Alubankudi (appearance of bias) [2015] UKUT 542 (IAC) [7], a definition derived in turn from the House of Lords decision in Porter v Magill [2001] UKHL 67 [105]:

The question is whether the fair minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was bias.

The key issue the President is keen to emphasise is that the reasonable observer is duly informed and ‘aware of everything bearing on the question of the judge’s impartiality’:

In short the hypothetical reasonable observer is endowed with greater and fuller attributes than his jurisprudential predecessor, the innocent bystander

Presumably the man on the Clapham Omnibus completes the trifecta of legal avatars.

Expression of an initial view

What if the judge, having read the papers, was simply expressing an initial view as to the merits of the case?

English law does not prevent judges from reaching tentative conclusions in advance of a hearing, as long as they truly are tentative and the judge does in fact keep an open mind: AM (Fair Hearing) Sudan [2015] UKUT 656 (IAC).

In fact, as McCloskey J highlights, expressions of scepticism are not ‘suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be’ Arab Monetary Fund v Hashim [1993] 6 Admin LR 348 [p356], and can actually be helpful to advocates who will better know where to direct their rhetorical artillery: Singh v SSHD [2016] EWCA Civ 492.

Procedure in cases of bias

A quick note on best practice in these cases.

The appellant (and his legal team) impressed the Upper Tribunal by taking two fairly straightforward steps to ensure the fairness of the hearing to decide whether the allegation of apparent bias had been made out.

The first was that the lawyer who argued the case made the transition from counsel to witness in accordance with BW (Witness statements by advocates) [2014] UKUT 568 (IAC). If he had not done, and appeared as advocate before the Upper Tribunal, he would not have been permitted to provide evidence as to the circumstances of the FTT hearing.

This is an important and sometimes difficult decision to make, for all sorts of reasons. A good example where an advocate was prevented from providing evidence of the events at the original tribunal hearing was this unreported case, incidentally heard on the same day as BW. As McCloskey J reminds us in the BW headnote, ‘the roles of advocate and witness are…separated by a bright luminous line’.

The second area of good practice was that the critical materials were forwarded to the Principal Resident Judge of the Upper Tribunal who in turn furnished them upon the first instance judge. The individual at the centre of the allegations then had an opportunity to comment, in line with the suggestions set out by the Court of Appeal in Singh (see paragraph 53).

Indeed, for anyone considering running these arguments, the headnote in Wagner, suggestions (1)-(7) at paragraph 53 of Singh, and this case are required reading.

Conclusions

McCloskey J then stands in the shoes of the hypothetical reasonable observer, in much the same way that Joey climbs into the map in Friends, providing three standard paragraphs that can essentially be used in any similar case [17-19], guiding judges as to the precise state of mind needed to assess allegations of apparent bias in the courts below.

The first instance judge, McCloskey J finds, did give the appearance of bias, having not disputed the evidence documenting the events at the hearing. In addition, the judge’s refusal to hear evidence from the other family members was ‘prima facie’ unlawful and denied the appellant the right to a fair hearing.

The determination concludes with an extract from Alubankundi [14] which reminds judges of the need to ‘have their antennae tuned to the immediate and wider audiences’, a sentiment echoed by McCloskey J who calls for ‘acute judicial alertness…in the real world of the United Kingdom in the year 2017’ [26].

This clarion call is arguably undermined by a judgment littered with Latin, and words like ‘averments’ (Late Middle English, I believe), by a judge who appears at times to be conducting his own low-level insurgency campaign against the Woolf plain language reforms of the late 1990s.