The 2019 Upper Tribunal case of MR v Secretary of State for the Home Department PA/02377/2019 did little to allay concerns among immigration practitioners and clients that some judges may harbour bias viewpoints which negatively influence their decision making. The appellant, a citizen of Iraq, had originally applied for protection in the UK on account of being targeted by ISIS “for selling alcohol and being an atheist” in April 2019. The case reached the First-Tier tribunal and was heard by Judge Geraint Jones QC who dismissed the appeal finding the claim to lack any credibility. The Upper Tribunal was then asked to review the conduct of the First-Tier judge, which had been the subject of a complaint.
Upper Tribunal Judge Martin on reviewing the Decisions and Reasons from the First-Tier hearing stated that “an impartial observer sitting in court at this hearing would have come to the conclusion that this appellant did not have a fair hearing. The Decision and Reasons itself gives the impression that this particular judge considers all asylum seekers to be liars. It may be that the appellant’s claim may be found to be not credible but the terms in which the adverse credibility findings are couched in this Decision and Reasons does not give the impression of an impartial assessment of the evidence”. The judge in question has now retired from the law, and the case will be reheard at the First-Tier tribunal.
It is first important to understand that there are two main types of bias, as follows:
Actual bias occurs when a judge has an interest in the outcome of the proceedings, i.e. they are committed to a particular outcome such that any evidence and arguments which are presented will not alter that outcome. This doesn’t necessarily mean that the judge is in some way linked with the party/s to the case (although this may be the case), but rather that because they might stand to benefit, their judgement might be altered.
Apparent bias, on the other hand, occurs when a judge may not necessarily have a personal interest in the outcome, but they act in a way which is not impartial – perhaps due to their behaviour, interests, or affiliations.
If there are strong grounds for the existence of actual bias before a case commences, such as a clear personal relationship between a judge and a party to a case, then that judge should recuse themselves (i.e. stand aside), allowing the case to be overseen by someone else. If they have not recused themselves, then where possible, listing offices should be informed of any potential conflict, who can then use their discretion to determine whether to reallocate judges. It should also be noted that court listing offices are very alert to such potential circumstances.
If there is a concern or suspicion of apparent bias, it is extremely unlikely that a judge will be replaced. It is, however, important to know that the judicial system will treat bias seriously. This is demonstrated by the recent Supreme Court decision in Serafin (Respondent) v Malkiewicz and others (Appellants) 2020.
In this case, the Respondent, R, a Polish builder who also worked as a handyman for a Polish charity had been the subject of claims in Nowy Czas, a newspaper for the Polish community, including allegations of dishonesty, fraud, involvement with charitable institutions for his own gain, and questionable conduct towards women. Acting as a litigant in person, R’s case was originally dismissed by a judge on the basis that the allegations in the article were either true or had caused no serious harm to his reputation and that a defence based on a section the Defamations Act 2013 was applicable. This decision was later overturned by the Court of Appeal, who concluded that the Defamation Act defence was not valid and, of key relevance to this article, that the judge had acted in an unfair and hostile manner.
The Supreme Court having undertaken a full review of the previous oral hearing, affirmed that the judge should interfere as little as possible in the presentation of oral evidence by litigants in person, who are less able to withstand judicial pressure than professional advocates. In ordering a complete retrial, the judge stated, “when one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair. Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented. It was ridiculous for the defendants to submit to us that, when placed in context, the judge’s interventions were “wholly justifiable”.
Court cases, especially those involving immigration and family matters can be highly emotive. This is entirely understandable when decisions such as the right to reside in the UK are at stake. The problem is that the perception of bias does not necessarily mean it will occur and may, in fact, be wholly unfounded. In most cases, the hearing will need to proceed, in the knowledge that if bias does eventuate, a higher court will not hesitate to stamp their authority, and will likely insist on the case being reheard.
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