Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 22 (AAC)

Fecha: 23-Ene-2024

First ground of appeal for 1 st the 3 rd appellants--- apparent bias

First ground of appeal for 1^st the 3^rd appellants--- apparent bias

78.

It is not in dispute that the appellants have a right to an unbiased tribunal and to a fair hearing compliant with Article 6 of the ECHR.

79.

The appellants are not alleging actual bias but apparent bias. There was no dispute between the parties that the test for apparent bias is as set out in Porter, namely whether a fair-minded and informed observer, having considered all the circumstances which have a bearing on the suggestion that the decision-maker was biased, would conclude that there was a real possibility that he was biased (para 103). The answer in any particular case will be dependent on the facts and circumstances of that case.

80.

The question then arises, what is a “fair-minded and informed observer”? The fair-minded and informed observer is “neither complacent nor unduly sensitive or suspicious” (Johnson v Johnson (2000) 201 CLR 488 at para 53). In Helow v. Secretary of State for the Home Department 2009 SC (HL) 1, Lord Hope stated:-

1 …… 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.

2 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 Johnson v Johnson (2000) 201 CLR 488, 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.

3 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.

81.

Therefore, the Porter test must be applied while knowing what the fair-minded person would think were one looking at it objectively and considering reasons why the judge might be biased. It must also be kept in mind that what we are concerned with is a real possibility of bias, not a fanciful one.

82.

Locabail was not directly cited to the Upper Tribunal however, it is discussed in AMEC. The passages already referred to by Lord Dyson are worth quoting at length:-

20.

In my judgment, the mere fact that the tribunal has previously decided the issue is not of itself sufficient to justify a conclusion of apparent bias. Something more is required. Judges are assumed to be trustworthy and to understand that they should approach every case with an open mind. The same applies to adjudicators, who are almost always professional persons. That is not to say that, if it is asked to redetermine an issue and the evidence and arguments are merely a repeat of what went before, the tribunal will not be likely to reach the same conclusion as before. It would be unrealistic, indeed absurd, to expect the tribunal in such circumstances to ignore its earlier decision and not to be inclined to come to the same conclusion as before, particularly if the previous decision was carefully reasoned. The vice which the law must guard against is that the tribunal may approach the rehearing with a closed mind.If a judge has considered an issue carefully before reaching a decision on the first occasion, it cannot sensibly be said that he has a closed mind if, the evidence and arguments being the same as before, he does not give as careful a consideration on the second occasion as on the first. He will, however, be expected to give such reconsideration of the matter as is reasonably necessary for him to be satisfied that his first decision was correct. As I have said, it will be a most unusual case where the second hearing is for practical purposes an exact rerun of the first.

21.The mere fact that the tribunal has decided the issue before is therefore not enough for apparent bias. There needs to be something of substance to lead the fair-minded and informed observer to conclude that there is a real possibility that thetribunal will not bring an open mind and objective judgment to bear.As was said in Locabail the mere fact that the tribunal had previously commented adversely on a party or found his evidence unreliable would not found a sustainable objection. On the other hand, if the tribunal had made an extremely hostile remark about a party, the position might well be different. Thus, in Ealing London Borough Council v Jan [2002] EWCA Civ 329 , this court decided that the judge should not hear the retrial of proceedings where he had twice said of the respondent in preliminary proceedings that he could not trust him “further than he could throw him”. So too in Timmins v Gormley , which was heard with Locabail , it was held that there was a sufficient danger where a personal injuries case in which insurers were the real defendants was heard by a recorder who had published articles in which he had expressed “pronounced pro-claimant anti-insurer views”.

83.

In the present case, the DTC is a specialist adjudicator in a regulatory regime which requires to be able to trust operators to comply with that regime in order to maintain public safety and fair competition. The DTC is a professional adjudicator who can be assumed to be trustworthy and to approach the issues he had to decide with an open mind and who would bring objective judgment to bear on the issues (AMEC and see AM Richardson v BETR 2000/65). With regard to the DTC in this case, there is nothing to suggest he would be anything other than open minded and would bring objective judgment to bear.

84.

At the 2021 PI, he had heard evidence from Johanna Dunne, Gordon Dunne, James Strathearn and Aaron Harrison, among others. He determined the issue of fronting based on the evidence available to him at that time. He accepted the evidence of Johanna and Gordon Dunne. He referred to them as “experienced, respectable businesspeople” (see paragraph 9(xxiii) above). There is no suggestion of any improper, hostile or extreme comments made by him at the 2021 PI or even that he had erred in law, that would give rise to an apprehension of bias.

85.

Counsel for the first three appellants submitted that the DTC had criticised Johanna and Gordon Dunne by commenting that there had been a woeful lack of due diligence in the appointment of Mr Honeyman as transport manager; that he did not find the suggestion of fronting made out to the required standard, rather than positively exonerating them. However, that has to be taken along with his finding that there was an absence of a proven link between Hana Simpson and James Strathearn. He found the suggestion of such a link was outweighed by the categorical statements of Mr and Mrs Dunne and James Strathearn (see paragraph 9(xxvii) above), which he accepted. Any comments he did make fall far short of suggesting that he might be biased against them and would approach the second PI with a closed mind. To suggest otherwise, is unduly sensitive and suspicious.

86.

As regards, the 22/23 PI, the DTC had to determine broadly the same issue again. He heard evidence from Johanna Dunne, Gordon Dunne, James Strathearn and Aaron Harrison again. Judges often have to hear cases involving parties who have previously given evidence before them. Without more, that will not give rise to a real possibility of bias. In the 22/23 PI, much of the oral and documentary evidence was different. In addition, he heard evidence from Hana Simpson. The DTC had a rational basis for reaching a different conclusion. He made different findings and reached a different conclusion on different evidence. He has given cogent reasons why he was able to accept some evidence and reject other evidence. There is no suggestion that the evidence was insufficient to underpin the conclusions or that the findings were in some way perverse or irrational.

87.

As regards a lack of evidence at the 2021 PI of a link between Hana Simpson and James Strathearn, counsel for the first three appellants submitted that when that evidence was provided in the 22/23 PI, this allowed the DTC to confirm his previous suspicions, thus leading to confirmation bias. We do not accept that submission. As explained in the previous paragraph, that was simply the DTC reaching a different conclusion on different evidence which he found acceptable. Nor could it be described as the DTC having “a second bite at the cherry”.Further, we agree with the submission for the respondent that, based on his findings at the 2021 PI, any risk of confirmation bias would have favoured the first three appellants.

88.

We do not accept that the DTC gave undue weight to the concession made by counsel for the first three appellants that the credibility of a witness is about more than what a witness said. There was nothing unusual about such an observation. In any event, it is clear the DTC’s preliminary decision did not turn on that and that he had regard to many other factors.

89.

Bearing in mind the guidance from the authorities cited, we do not agree that the facts and circumstances of this case give rise to a real possibility that the DTC was biased. We agree with the submissions made on behalf of the respondent that the test for apparent bias is not satisfied. Nor is the case for confirmation bias made out. For the same reasons, we find that the DTC did not err in law and was not “plainly wrong” by declining to recuse himself. We therefore reject the first three appellants’ submissions.

90.

Counsel referred to other authorities which we considered did not add anything of significance to the principles and guidance found in the authorities we have referred to. In saying that, we mean no disrespect to the carefully researched arguments presented to us.