Helow v Secretary of State for the Home Department
|LORD HOPE OF CRAIGHEAD,LORD RODGER OF EARLSFERRY,LORD WALKER OF GESTINGTHORPE,LORD CULLEN OF WHITEKIRK,LORD MANCE
|22 October 2008
| UKHL 62
|House of Lords
|22 October 2008
 UKHL 62
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Cullen of Whitekirk
HOUSE OF LORDS
Mungo Bovey QC
(Instructed by Drummond Miller LLP)
Lord Davidson of Glen Clova QC
Colin Tyre QC
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
Gerry Moynihan QC
(Instructed by Office of the Solicitor to the Scottish Executive)
The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word "he"), she has attributes which many of us might struggle to attain to.
The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in , 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The "real possibility" test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.
Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.
The context is crucially important in a case such as this. As my noble and learned friend Lord Mance whose speech I have had the advantage of reading in draft has explained, the appellant's argument depends entirely on the judgment that the observer would make of the fact that Lady Cosgrove was, at all relevant times, a member of the International Association of Jewish Lawyers and Jurists. As a member of the Association, she must be assumed to have received its quarterly publication, "Justice", all of whose editions are readily accessible on the Association's website. She was present at a meeting held in Edinburgh on 30 November 1997 when, in the presence of a number of other distinguished Jewish members of the legal profession, a Scottish Branch of the Association was inaugurated. There is no suggestion that she either did or said anything after that date which associated her either one way or the other with views that were being expressed on behalf of the Association. It was on the some of the contents of some of the more recent issues of "Justice", and those contents only, that Mr Bovey QC for the appellant concentrated in presenting his argument. The question is to what extent, if at all, the picture presented by this material would indicate to the observer, taking everything else into account, that there was a real possibility that Lady Cosgrove was biased.
There is no doubt that some of the articles that have been published in Justice, including messages by the Association's President, Judge Hadassa Ben-Itto, are fervently pro-Israeli. Inevitably, given the conflicts that have been taking place in the region, such a partisan stance carries with it sentiments that are hostile to those that people in Israel feel are ranged against them. It is not difficult to find publicity being given in "Justice" to views that are markedly antipathetic to the Palestinian Liberation Organisation with whom the appellant, who is an ethnic Palestinian, has connections. Had there been anything to indicate that Lady Cosgrove had by word or deed associated herself with these views so as to indicate that they were her views too, I would have had no difficulty in concluding that the test of apparent bias set out in ; , para 103 was satisfied.
But the fair-minded and informed observer would, as I have said, put the material published in "Justice" on which Mr Bovey relied into its context. The first point is that the material on which he relied was a one-sided selection of what has been published. It is incomplete. If one is looking for a balanced and fair-minded presentation of what is available to the reader one would need to see the other side. It is clear from the contents listed at the front of each edition that some of the material that was published was of genuine interest to a lawyer. From to time, for example, articles were published about judgments issued by the courts in Israel including its Supreme Court. Other aspects of Jewish and Israeli law were also sometimes dealt with. This is important, as it provides an explanation of why, leaving aside all the highly charged political material, the publication might be thought to of interest to a Jewish lawyer living outside Israel. It is not only Jewish lawyers in this country who value information about judgments issued by the Supreme Court. But Jewish lawyers in particular might be thought to have a particular interest in keeping themselves informed about its activities.
The second point relates to the nature of the Jewish diaspora. There is an affinity between Jewish people everywhere that expresses itself in participation in bodies such as the Association's UK and Scottish Branches out of sympathy with Jews who live in Israel. But, as Judge Ben-Itto herself recognised in one of her policy statements, it is well known that not all Jews agree with the views as to how Israel's problems should be solved that have been expressed by the Israel government. The editorial board of "Justice" is located in Israel and the journal itself in published in Tel Aviv. Its members live every day in the cauldron of public opinion which has been generated by the circumstances to which people on all sides are exposed in that country. A Jewish reader living abroad would be expected to recognise the partisan nature of some of the material that appeared in it. Statements by Ariel Sharon, for example, contain exactly the kind of sentiments about the problems that Israel faces that he would have been expected to express in his capacity as Prime Minister. The greater the geographic separation, the more likely it is that the educated reader will feel detached from the pressures that give rise to them. No fair-minded person would think that a judge who regularly takes one of the leading national newspapers circulating in this country was, simply by doing so, associating himself or herself with everything that was printed in it. In principle, this case is no different.
The Extra Division referred in its discussion section of its opinion to the fact that the judge had taken the judicial oath: ; , para 44. This is, of course, a factor to be taken into account along with all the other facts. In this case, however, where the issue is whether a judge having access to this material is to be associated with its contents, I would attach more weight to the other factor that the Division mentioned. The judge can be assumed, by virtue of the office for which she has been selected, to be intelligent and well able to form her own views about anything that she reads. She can be assumed to be capable of detaching her own mind from things that they contain which she does not agree with. This is why the complete absence of anything said or done by her to associate herself with the published material that the appellant complains of is so crucial to what the observer would make of this case. In the absence of anything of that kind there is no basis on which the observer would conclude that there was a reasonable possibility that the judge was biased.
For these reasons, and for those given by my noble and learned friends Lord Rodger of Earlsferry and Lord Mance with which I agree, I would dismiss the appeal and affirm the Extra Division's interlocutors.
I have had the advantage of considering the speeches of my noble and learned friends, Lord Hope of Craighead and Lord Mance, in draft. I agree with them. I add some remarks of my own, only because the challenge in the case is to the integrity of the justice system in Scotland. This is a matter of general concern, as was indeed indicated by the presence at the hearing of Mr Moynihan QC representing the Lord Advocate, not only as a Scottish minister with responsibility for the courts but also acting in the public interest.
The appellant is a Palestinian by birth. She avers that her family were supporters...
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