Impartiality

The importance of decision-makers acting in a judicial or quasi-judicial capacity has been a cornerstone of administrative law from at least the late nineteenth century. In terms of judges such cases as Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [2000] 1 QB 451, [1999] EWCA Civ 3004, [2000] 1 QB 451 and Magill v Weeks (otherwise Porter v Magill) [2001] UKHL 67, [2002] 2 AC 357, [2002] 2 WLR 37 stress the point. The Court of Appeal dealt with the question only last week in Otkritie International Investment Management & Ors v Urumov [2014] EWCA Civ 1315, where Longmore LJ said:

'[1] It is a basic principle of English law that a judge should not sit to hear a case in which "the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that [he] was biased" (Porter v Magill [2002] 2 AC 357 para [103] per Lord Hope of Craighead) ... The concept of bias includes any personal interest in the case or friendship with the participants, but extends further to any real possibility that a judge would approach a case with a closed mind or, indeed, with anything other than an objective view; a real possibility in other words that he might in some way have "pre-judged" the case.'

The common law asserts the importance of impartiality in the context of inquiries. The law can be said to be represented by Inquiries Act 2005, s 9 (and the Home Secretary accepts that this applies to non-statutory inquires: see eg letter drafted by her officials https://childsexualabuseinquiry.independent.gov.uk/wp-content/uploads/2014/10/Letter-to-the-Home-Secretary.pdf ):


If a party to litigation wishes to challenge the ‘bias’ of a judge, application is made in the proceedings. How does a person interested in the appointment of an inquiry chair or panel challenge the appointment decision? In R (ota Howard and anor) v Secretary of State for Health [2002] EWHC 396 (Admin), Scott Baker J and R (ota Persey and ors) v Secretary of State for Environment, Food and Rural Affairs [2002] EWHC 371 (Admin), Divisional Court (Simon Brown LJ and Scott Baker J) applicants sought review of decisions to hold a private, not public, inquiry. In each case the challenge was based on the rights to freedom of expression under Art 10 (not as here under fairness where bias may apply: European Convention 1950 Art 6(1)); and both applications were refused.

That both applications achieved a full hearing suggest that judicial review was the appropriate forum for such a challenge.

Statutory inquiry

In very broad terms, an inquiry can be under Inquiries Act 2005 or non-statutory. The 2005 Act gives defined powers to the inquiry panel, for example to take evidence on oath (s 17(2)). The powers and duties of a statutory inquiry are not so clear.

This inquiry has eight members as well as its chair. But is the Home Secretary clear as to the difference between a judicial decision-making process (which at root is the object of an inquiry) and evidence to an inquiry: experts and lay evidence. For example Inquiries Act 2005, s 11 empowers a minister to appoint assessors. It is not clear that one or two of the panel members are unengaged personally with the issues involved in the inquiry; though they might be eminently appropriate as witnesses or assessors.

The Home Secretary might think a single family law specialist High Court or Court of Appeal judge could more appropriately take on chairmanship of this inquiry.

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David Burrows acts for a survivor who has issued a judicial review application in respect of the inquiry.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.