AC-2025-LON-001414 - [2025] EWHC 2840 (Admin)

The test for apparent bias is an objective test for the court to determine. It is a real, rather than a fanciful possibility and the central test was set out by the House of Lords in Porter v Magill [2001] UKHL 67, where Lord Steyne (referring to Lord Phillips MR in In Re Medicaments [2001] 1 WLR 700) set out the objective test as follows:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

The “the fair-minded and informed observer”:

“… 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 … 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 everybody 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.

[and 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 fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.” Helow v Secretary of State for the Home Department [2008] UKHL 62.

The “fair-minded and informed observer” is also able to take account of information not in the public domain such as minutes or accounts of what actually happened during deliberations: see Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117.