Non-Pecuniary Bias PDF

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Non-pecuniary bias as a ground of application for JR...

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JUDICIAL REVIEW GROUP 5 SEMINAR QUESTION ONE

OHURU TIMOTHY

LAW/M/0373/05/16

SARAH BINAH

LAW/MG/0799/05/18

FAITH OKWORO

LAW/MG/1914/05/18

DAVIES OTERO

LAW/M/0346/05/18

ESTHER WEBO

LAW/MG/0948/05/18

JENNIFER OBURA

LAW/MG/1501/05/18

MILLARD AGINGU

LAW/MG/2197/05/18

EVANS KIBET

LAW/MG/1325/05/18

DOROTHY NKATHA

LAW/MG/0593/05/18

COLLINS KORIR

LAW/M/0331/05/18

MERCY CHEPTANUI

LAW/MG/1609/05/18

SATIA MAISY

LAW/MG/2243/05/18

NON-PECUNIARY INTEREST A non-pecuniary interest is a private or personal interest that a Council official has that does not amount to a pecuniary interest as defined in the Local Government Act. Tests applicable in determining bias in non-pecuniary interest The test in determining bias has been divided into actual and apparent bias Actual Bias This occurs where a judge is proved that a judge or decision-making body has been influenced by partiality or prejudice in reaching a decision or where prejudice is proven. These are cases where in the absence of the real likelihood of bias and in the absence of pecuniary and other interests, and in the absence of the real danger of partiality, bias does actually occur and in this situation the test is whether there was actual bias. Proving actual bias is often difficult as it is difficult to explore the state of mind of a particular authority Apparent Bias This is where circumstances exist which give rise to reasonable apprehension or suspicion that the judge must have been biased. Due to the difficulty in determining actual bias, the common approach is to consider the material circumstances and apparent bias. Various tests have been developed to denote the moral culpability of decision-making bodies on charges of apparent bias. They include:i.

Reasonable Suspicion and Apprehension of Bias

The reasonable apprehension or suspicion of bias test was enunciated by the case of R v Sussex Justices, where the fact that a clerk, who was linked to one of the parties to a case, retired with the justices and gave an appearance of the possibility of bias, which was held to be enough to lead the quashing of the verdict. It places emphasis on matters of the appearance of impartiality and based on the premise that public confidence in the administration of justice is more likely to be maintained if courts adopt a test that reflects the reaction of the reasonable member of the public to the allegation in question The reference to phrases like “reasonable person/man” indicate that it is the court’s view of the public which should determine things

Since this test gave rise to a number of cases with remote suspicion and no material suspicion of bias, the court came up with another test; ii.

Real Likelihood and Danger of Bias

The real likelihood of bias test imposes a greater obligation on the person alleging bias on the part of a judge to strictly prove the allegations. Circumstances in which the court will conclude that there was a real likelihood of bias include cases where the decision maker has an interest in the matter under consideration. Interest may be pecuniary/ adverse (adverse interest suffices). In Regina v Camborne Justices ex parte Pearce, The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor member of the Council, but he did not serve on the Health Committee. An apparent bias was alleged against the Clerk. The court applied the real likelihood of bias test and found that on the full facts, there was no real likelihood of bias Circumstances in which the court will conclude that there was a real likelihood of bias include cases where the decision maker has an interest in the matter under consideration. Interest may be pecuniary/ adverse (adverse interest suffices). iii.

Fair minded and well informed observer test

In the case of Porter v. Magill [2002] 2 AC 357, The Conservative majority of Westminster council adopted a policy to sell council houses in parts of the City where it was believed that home owners were more likely to vote Conservative. It became known as “the homes for votes scandal”, involving Dame Shirley Porter. As the leader of Westminster City Council, she helped formulate a policy which appeared to be designed to sell off the council housing at very low prices for the purpose of electoral advantage in marginal wards. The scheme was said to be illegal and so Dame Porter would face £31 million in personal liability if an investigation proved so. An auditor investigated and concluded that Porter had engaged in wilful misconduct, and that she should reimburse the city for the £31 million. Porter appealed on the ground of apparent bias on the part of the auditor; he had given a press conference during his investigation which, she argued, showed an appearance of bias.1 The issue that was to be determined was whether the resulting investigation’s decision could be quashed where an initial press conference appeared to be biased.2 The House of Lords accepted that councillors are elected. However, their powers can only be used for the purposes for which they are conferred, and not for the electoral advantage of a political party.3 Lord Hope concluded that the question was; Whether the fair minded and

1 https://webstroke.co.uk/law/cases/porter-v-magill-2002 2 Ibid 3 Ibid

informed observer would conclude that there was a real possibility of bias. This became known as the new (and final) test of bias.4 This test was similarly applied in the case of R (on the application of Southwark LBC) v London Fire and Emergency Planning Authority [2016] EWHC 1701 (Admin) the claimant council (“Southwark”) challenged the decision of the respondent (“Fire Authority”) to retain responsibility for the consideration and prosecution of Southwark in relation to a fire at a council housing block it owned. The decision was challenged on the basis that the fire authority was the responsible body for the operation and the organization of the land and fire brigade and was therefore conflicted in relation to the decision and possible prosecution. The High Court did not consider that any consequential prosecution would be infected by the appearance of the bias.5 The Court referred to the test in Porter v Magill which states the question “Whether the fair minded and informed observer, having considered the facts”, would conclude that there was a real possibility that the tribunal was biased.6 This is an objective test in that it assumes that the observer is not directly concerned with the investigation and has considered and understood the relevant features of the decision being taken.7 Importantly, the test is not to be considered from an instinctive or emotional perspective.8 In the case of Lawal v Northern Spirit Limited [2003] HL,9 counsel appearing at the tribunal had previously sat as a judge with the tribunal member. The opposing party asserted bias in the tribunal. It was held that the test in Gough should be restated in part so that 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 were real possibility, or a real danger, the two being the same, that the tribunal was biased. The rules recognized the need to separate counsel’s practice from the area in which he sat. The threshold is only a real possibility of unconscious bias. One starts by identifying the circumstances which are said to give rise to bias. Would a fair minded and informed observer having considered the given facts, conclude that there was real possibility that the tribunal was biased. The House of Lords held that there was a real possibility of bias where a Queen’s Counsel appears as representative in front of a division of the EAT where he has previously sat as part-time judge with one or both wing members.10

4 Human Rights Act Refer to Court of Appeal’s decision in re Medicaments and Related Classes of Goods (No 2) [2001]] 1 WLR 700 5 https://www.lexology.com/ibrary?detail.aspx?g=3a20e9d2-fa54-48f8-a30b-0092dc9eb 6 Ibid 7 Ibid 8 Ibid 9 https://www.swarb.co.uk/lawal-v-northern-spirit-limited-hl-19-jun-2003/amp/ 10 https://www.danielbarnett.co.uk/site/blog/employment.blog/lawal-v-northern-spirit-ltd-2003.html

v.

The modern test

Could also be referred to as the real danger test. In this case, the consideration is whether there is a real danger that a public official or body participating in a decision will be influenced by a personal interest in the outcome of a case.11 The question to ask is how significant the interest is and how closely or remotely related to the issue it is.12 Since the jurisprudence of the European Convention On Human Rights insists that the appearance of bias, even if there is no actual bias, is sufficient to taint a decision as a breach of Article 6(1), the ‘real danger’test, alias the modern taste, introduced a discrepancy between the Convention and the common law in ensuring impartial decision making. In addition it disregarded the hallowed principle that justice must be seem to be done.13 The House of Lords, in, recognition of this discrepancy, has now made a modest judgement in truth a substantial adjustment, to the real danger test and ensured consistency between the Convention and the common law.14

EXAMPLES OF NON-PECUNIARY INTERESTS; Family Connection The fact that a judge is related to a party, or one of the party’s legal representatives, at least where that legal representative is involved in the litigation, will normally be a ground for disqualification15. However, where association with somebody with an interest in the litigation is relied upon there must be shown to be a logical connection between the matter complained of and the feared deviation from impartial decision making.16 It is deemed unacceptable to participate in an authoritative decision-making position in a matter if:17 The decision would directly affect a member of the immediate family or close friend of the decision maker; or A member of the immediate family has made a submission about the matter

11 ogekazacharia.blogspot.com/2017/04/judicial-review-generally-kenya-law.html?m=1 12 Ibid 13 H.W.R. Wade & C.F. Forsyth, Administrative Law, (Oxford University Press, 11th edn) 387 14 Lawal v Northern Spirit Ltd [2003] UKHL 35 15Civil Trials Bench Book: Disqualification for Bias www.judcom.nsw.gov.au/publications/benchbkscivil/disqualification_for_bias.html 16 Smits v Roach (2006) 227 CLR423 17 https://www.oag.govt.nz/2007/conflicts-members/part5.htm Accessed 7 October 2019

A decision made by a judge who is related to one of the parties may be challenged on the grounds of bias. The fact that the judge might have no pecuniary interest or arrived at the decision on good faith is immaterial if right minded persons would think that in the circumstances, there was a real likelihood of bias on his part. This reasoning follows the words of Lord Hewart CJ in R v Sussex Justices, Ex p Mc Carthy 18 where he stated that it is not merely of some importance but of fundamental importance that justice should both be done and manifestly seen to be done. The courts will consider if there is a real likelihood of bias or a reasonable suspicion of bias in determining whether to interfere with the decision on grounds of non-pecuniary interest and this applies to family relations. In Metropolitan Properties v Lannon [1969] QB 577, the case was brought to determine the rents of three flats in Oakwood Court, West Kensington. Once the rent of the three flats were determined they would form a guide in determining the rents, not only of the other flats in Oakwood Court, but also of numerous flats in the neighbourhood. According to the procedure laid out by the Rent Act 1965, the rent officer for the area first determines a fair rent. He is usually a valuer appointed by the local authority. If either party objects to his figure, he can appeal to the rent assessment committee. Oakwood Court was bought by one of the Freshwater Group of Companies and soon after they took over Oakwood Court they proposed to increase the rents of the flats. Some of the tenants applied to the rent officer to register a 'fair rent' under the Rent Act 1965. The rent officer fixed what he thought were fair rents. The Freshwater Group appealed to the rent assessment committee. That committee made drastic reductions in the rents. They put the fair rent at figures which were far lower than the contractual rents, far lower than any of the experts stated, and lower, indeed, than the tenants themselves had offered. The tenants were, no doubt, much gratified by the result; but the Freshwater Group took the case to the Divisional Court where they made a complaint against the respondent, Mr. John Lannon who was the chairman of the assessment committee. They alleged that he was disqualified. They said he could not have given them an unbiased hearing given he was a solicitor living in another block of flats owned by the Freshwater Group and his father was the tenant and was in dispute with the Freshwater Group. The Freshwater Group say that the son was assisting and advising his father in that dispute. John Lannon assisted his father in writing the letter addressing his dispute with the Fresh Water Group and a week later he sat as chairman of the rent assessment committee to hear an appeal by that very group that ended up fixing the rents for Oakwood court lower than anyone had submitted to them. It was held that John Lannon should not have sat in the committee. It was accepted that he had had no pecuniary interest himself, and had acted scrupulously. It was a question of whether there was any appearance of bias. Lord Denning MR considered the test for apparent bias, and said: “…in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may 18 [1923] All ER 223 at p 234

be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. If he was himself a tenant in difference with his landlord about the rent of his flat, he clearly ought not to sit on a case against the same landlord, also about the rent of a flat, albeit another flat. In this case he was not a tenant, but the son of a tenant. But that makes no difference. No reasonable man would draw any distinction between him and his father, seeing he was living with him and assisting him with his case.

The recent case of UCG v Westminster Magistrates’ Court [2019] provides a slightly different view of possibility of bias arising from family relations. In the case one of the grounds of challenge for the Judicial Review was that the judge’s decision to grant an operating license to Uber in London for 15 months was tainted by actual or apparent bias, because the judge’s husband was a consultant with a company providing services to the Qatar Investment Authority, which had a financial investment in Uber. Following the publication of a Guardian article uncovering the connection after her judgment, the judge wrote to the parties confirming that she had been unaware of the link (as was her husband) and that she would not sit on the matter any further. UCG were unsuccessful in their challenge, with the appellate judges holding that they could see 'considerable practical difficulties if a judge has to research whether his or her immediate family members may have any link with any party in every case over which they preside.' They further reiterated that where the judge’s interest is said to derive from the interest of a family member, the link must be 'so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the judge himself, as per Jones v DAS Legal Expenses Insurance Co. Ltd19. Personal friendship In case of Cottle vs Cottle20, Mardell Cottle had instituted matrimonial proceedings against her husband Justin Cottle. Citing cruel and inhumane treatment, plaintiff prayed for a divorce, custody of their infant child, alimony and a fund sufficient for the support and education of the child. In his cross-bill, the defendant likewise asked for a decree of divorce in his favour, and that he be awarded the custody of their child, Aaron Cottle, age six years, and the possession of certain pieces of tangible personal property, which plaintiff had taken from the place where the parties last resided. The chairman of the bench was a friend of the plainitiff’s family and the plaintiff had told the defendant that the chairman would decide the case in her favour. The divisional court quashed the orders on this ground and disqualified the magistrate. 19 [2003] EWCA Civ 1071 20 Cottle v Cottle (1939 ) 2 All ER 535:83 SJ 501

Closed mind/ predetermination21 The decision-maker must remain open to persuasion. This may seem especially unlikely in circumstances where a decision maker has formulated a policy and then hears representations against that policy. Predetermination might occur if your public statements indicate that you made up your mind about the matter before it came to be heard and deliberated upon. The courts accept that in such situations an element of bias must be accepted. Indeed, if the decision maker is active and committed then it is to be expected that he or she will favour certain policies and outcomes. An extreme example arose in Franklin v Minister of Town and Country Planning (1948), where the minister had made up his mind that Stevenage would be the first new town to be designated under the New Towns Act 1946. The minister had addressed a public meeting in Stevenage and, to cries of ‘gestapo’ he proclaimed ‘It is no good your jeering: it is going to be done’. After a subsequent public inquiry, the minister indeed confirmed the designation order. All that was required according to the House of Lords was that the minister followed the statutory procedure and genuinely addressed the question with an open mind. Lord Thankerton was of the opinion that the applicants had not established that the minister’s speech ‘had forejudged any genuine consideration of the objections or that he had not genuinely considered the objections at a later stage when they were submitted to him’ However, general personal factors, such as ethnicity, religion, national origin, age, political or physical leanings, wealth or professional background, will, of themselves, not often constitute predetermination. 22 Active interest in an organization. A judge/decision makers’ impartiality is threatened if the matter involves an organisation to which he/she belongs. This sort of conflict of interest arises not from something one has said or done, but from a pre-existing state of affairs. Accordingly, no matter how careful one is, this type of conflict sometimes cannot be prevented.23 A judge’s can easily be biased if; 

He/she is an executive officeholder or trustee, or is otherwise strongly publicly identified with the organization.



The matter specifically and significantly involves or affects the organization – such as proposed grant of money to the organization, or something else directly affecting the organization’s finances or property.

In the case of...