JG v Kent and Medway NHS & Social Care Partnership Trust
| Jurisdiction | UK Non-devolved |
| Judge | Ramshaw |
| Judgment Date | 11 June 2019 |
| Neutral Citation | [2019] UKUT 187 (AAC) |
| Date | 11 June 2019 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HM/2670/2018 |
Neutral Citation: [2019] UKUT 187 (AAC)
Court and Reference: Upper Tribunal (AAC)
Judge: UTJ Ramshaw
HM/2670/2018
Representatives: K Wolton for JG.
Facts: The judge of a Tribunal considering JG's case as a patient detained under s3 Mental Health Act 1983 revealed that he had read the judgment of the Court of Appeal dismissing an appeal by the prosecution against a ruling that JG had no case to answer on a charge of murder because of a lack of anything beyond circumstantial evidence. An account of the allegation was in the medical report of the responsible clinician. The judge indicated that the judgment would not affect his view on risk assessment and had been consulted to determine the sequence of events before detention. The hearing proceeded without a request that the judge recuse himself, in light of advice from JG's representative that the prospects of release were favourable and that the Tribunal could reach a majority view. The Tribunal upheld detention. Permission to appeal was granted by the Upper Tribunal. The primary ground of appeal was that apparent bias in breach of natural justice arose if a judge undertook independent non-legal research into a case; secondarily, it was argued that this led to a strong presumption of bias, that there was unfairness because evidence seen by the judge was not submitted to the parties or the Tribunal (as would have happened had the judge issued directions), and the Court of Appeal judgment had prejudicial material that prevented the judge having an open mind; it was also contended that there was no waiver of the right to complain by proceeding with the hearing.
This decision is given under s11 of the Tribunals, Courts and Enforcement Act 2007.
The decision of the First-tier Tribunal under reference MH/2018/15153, made on 4 September 2018, did not involve the making of an error of law. The appellant's appeal is dismissed.
1. The appellant was detained under s3 of the Mental Health Act 1983 at the time of the hearing before the First-tier Tribunal on 4 September 2018. The hearing proceeded before a panel consisting of a First-tier Tribunal judge, a medical member and a specialist member.
2. It is stated (in the grounds of appeal) that, at the commencement of the hearing the judge spoke to the appellant and his representative explaining that his colleagues had suggested that he inform them that he had accessed a Court of Appeal judgment1 in respect of the appellant in a connected matter, he emphasised that this would not affect his view of risk assessment in the case and he had merely accessed the judgment to ascertain the sequence of events prior to the appellant's detention.
3. The appellant and his representative state that they felt at the time that this gave a strong indication that the judge had a biased view of the case. The explanation given by the judge as to why he had accessed the judgment did not, in their view, rebut the strong presumption of bias. They nevertheless decided to proceed with the hearing rather than ask the judge to recuse himself. This decision was based on an assessment that the appellant's chances of success were favourable, particularly because the Tribunal could have come to a majority view.
4. The hearing went ahead, and the Tribunal decided that it was necessary for the appellant's health and safety and for the protection of others that he remained liable to be detained, setting out its reasons in a decision dated 4 September 2018.
5. The appellant applied, on 9 September 2018, to the First-tier Tribunal for permission to appeal to the Upper Tribunal against the First-tier Tribunal's decision claiming that the judge, having accessed the Court of Appeal judgment in respect of the appellant, acted with apparent bias.
6. The First-tier Tribunal, on 12 October 2018, refused permission to appeal. The appellant renewed his application to the Upper Tribunal. I directed an oral hearing and gave directions requiring written submissions from the appellant's representative. The oral hearing of the permission to appeal application was held on 28 January 2019 and was attended by the appellant's representative, Ms K Wolton. She provided written submissions and amplified these at the hearing.
7. On 27 March 2019, having considered the appellant's arguments (as elaborated upon at the oral hearing), I granted permission to appeal. This appeal raises issues that are deserving of consideration by the Upper Tribunal. I granted permission to appeal on that basis. I gave directions inviting the parties to make written or further written submissions if so wished. I did not consider it necessary to require the respondent to make submissions given the subject matter of the appeal. I also directed the appellant to
provide a copy of the Court of Appeal judgment or to make representations as to why it should not be disclosed.8. Neither party made any further submissions. The appellant provided a copy of the Court of Appeal judgment (obtained from a barrister's chamber's website).
9. The application for permission to appeal set out only 1 ground, namely that the First-tier Tribunal acted with apparent bias (it is not argued that there is actual bias). No application for permission to appeal was made on the basis of any other error of law. The apparent bias was said to arise from the judge having accessed the Court of Appeal judgment in respect of the appellant. There was no criticism of the judge's behaviour during the hearing or the conduct of the appeal hearing. That initial ground has subsequently been elaborated upon and, although the arguments are interrelated, the grounds of appeal are:
i) It is not open for a judge to undertake his own non-legal research into a case – this is a breach of natural justice and leads, of itself, to a reasonable conclusion of apparent bias
ii) The Court of Appeal judgment contained prejudicial material leading to the conclusion that the judge could not bring an open mind to bear on the case
iii) There is a strong presumption of bias as a result of the judge's action in independently seeking out evidence
iv) The hearing was not fair as the evidence seen by the judge was not submitted to the parties and Tribunal
v) It is not appropriate to conclude that by not objecting at the time the appellant has waived his right to complain now.
10. Although the appellant's case was initially advanced solely on the basis of apparent bias, as the arguments developed 2 aspects have emerged in respect of the rules of natural justice or procedural fairness. The 2 aspects of natural justice, as relevant to this case, were set out in the case of AMEC Capital Projects Limited v Whitefriars City Estates Ltd[2004] EWCA Civ 1418 (‘AMEC’) [14] as:
“…First, the person affected has the right to prior notice and an effective opportunity to make representations before a decision is made. Secondly, the person affected has the right to an unbiased tribunal. These two requirements are conceptually distinct. It is quite possible to have a decision from an unbiased tribunal which is unfair because the losing party was denied an effective opportunity of making representations. Conversely, it is possible for a tribunal to allow the losing party an effective opportunity to make representations, but be biased…”
11. I will deal with the 2 aspects separately considering apparent bias (grounds i–iii) first and then procedural fairness (ground iv). For the reasons set out below I do not consider that it is arguable that there was a breach of the rules of natural justice. I therefore do not need to consider the waiver issue (ground v).
12. The rule against bias, which is enshrined in the common law and Art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ensures parties have their cases determined by impartial tribunals. The principle on which the rule is built is that judges must decide cases without fear or favour, affection or ill-will. They must consider cases with an open mind exercising independent judgment.
13. The test for apparent bias is well established. The following relevant principles can be drawn from the cases:
— The test is ‘whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’ (Magill v Porter and Weeks[2001] UKHL 67 at [103])
— The fair-minded and informed observer, ‘is neither complacent nor unduly sensitive or...
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