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|Judgments - Helow (Ap) V Secretary of State For The Home Department and Another (Scotland) Appellate
HOUSE OF LORDS
 UKHL 62
on appeal from: CSIH 5
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Helow (AP) (Appellant) v Secretary of State for the Home Department and another (Respondents) (Scotland)
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Cullen of Whitekirk
Mungo Bovey QC
(Instructed by Drummond Miller LLP)
Lord Davidson of Glen Clova QC
Colin Tyre QC
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
Gerry Moynihan QC
(Instructed by Office of the Solicitor to the Scottish Executive)
16 and 17 JUNE 2008
WEDNESDAY 22 OCTOBER 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Helow (AP) (Appellant) v Secretary of State for the Home Department and another (Respondents) (Scotland)
 UKHL 62
LORD HOPE OF CRAIGHEAD
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.
4. The context is crucially important in a case such as this. As my noble and learned friend Lord Mance whose speech I have had the advantage of reading in draft has explained, the appellants argument depends entirely on the judgment that the observer would make of the fact that Lady Cosgrove was, at all relevant times, a member of the International Association of Jewish Lawyers and Jurists. As a member of the Association, she must be assumed to have received its quarterly publication, Justice", all of whose editions are readily accessible on the Associations website. She was present at a meeting held in Edinburgh on 30 November 1997 when, in the presence of a number of other distinguished Jewish members of the legal profession, a Scottish Branch of the Association was inaugurated. There is no suggestion that she either did or said anything after that date which associated her either one way or the other with views that were being expressed on behalf of the Association. It was on the some of the contents of some of the more recent issues of Justice", and those contents only, that Mr Bovey QC for the appellant concentrated in presenting his argument. The question is to what extent, if at all, the picture presented by this material would indicate to the observer, taking everything else into account, that there was a real possibility that Lady Cosgrove was biased.
5. There is no doubt that some of the articles that have been published in Justice, including messages by the Associations President, Judge Hadassa Ben-Itto, are fervently pro-Israeli. Inevitably, given the conflicts that have been taking place in the region, such a partisan stance carries with it sentiments that are hostile to those that people in Israel feel are ranged against them. It is not difficult to find publicity being given in Justice to views that are markedly antipathetic to the Palestinian Liberation Organisation with whom the appellant, who is an ethnic Palestinian, has connections. Had there been anything to indicate that Lady Cosgrove had by word or deed associated herself with these views so as to indicate that they were her views too, I would have had no difficulty in concluding that the test of apparent bias set out in Porter v Magill  UKHL 67;  2 AC 357, para 103 was satisfied.
6. But the fair-minded and informed observer would, as I have said, put the material published in Justice on which Mr Bovey relied into its context. The first point is that the material on which he relied was a one-sided selection of what has been published. It is incomplete. If one is looking for a balanced and fair-minded presentation of what is available to the reader one would need to see the other side. It is clear from the contents listed at the front of each edition that some of the material that was published was of genuine interest to a lawyer. From to time, for example, articles were published about judgments issued by the courts in Israel including its Supreme Court. Other aspects of Jewish and Israeli law were also sometimes dealt with. This is important, as it provides an explanation of why, leaving aside all the highly charged political material, the publication might be thought to of interest to a Jewish lawyer living outside Israel. It is not only Jewish lawyers in this country who value information about judgments issued by the Supreme Court. But Jewish lawyers in particular might be thought to have a particular interest in keeping themselves informed about its activities.
7. The second point relates to the nature of the Jewish diaspora. There is an affinity between Jewish people everywhere that expresses itself in participation in bodies such as the Associations UK and Scottish Branches out of sympathy with Jews who live in Israel. But, as Judge Ben-Itto herself recognised in one of her policy statements, it is well known that not all Jews agree with the views as to how Israels problems should be solved that have been expressed by the Israel government. The editorial board of Justice is located in Israel and the journal itself in published in Tel Aviv. Its members live every day in the cauldron of public opinion which has been generated by the circumstances to which people on all sides are exposed in that country. A Jewish reader living abroad would be expected to recognise the partisan nature of some of the material that appeared in it. Statements by Ariel Sharon, for example, contain exactly the kind of sentiments about the problems that Israel faces that he would have been expected to express in his capacity as Prime Minister. The greater the geographic separation, the more likely it is that the educated reader will feel detached from the pressures that give rise to them. No fair-minded person would think that a judge who regularly takes one of the leading national newspapers circulating in this country was, simply by doing so, associating himself or herself with everything that was printed in it. In principle, this case is no different.
8. The Extra Division referred in its discussion section of its opinion to the fact that the judge had taken the judicial oath:  CSIH 5; 2007 SC 303, para 44. This is, of course, a factor to be taken into account along with all the other facts. In this case, however, where the issue is whether a judge having access to this material is to be associated with its contents, I would attach more weight to the other factor that the Division mentioned. The judge can be assumed, by virtue of the office for which she has been selected, to be intelligent and well able to form her own views about anything that she reads. She can be assumed to be capable of detaching her own mind from things that they contain which she does not agree with. This is why the complete absence of anything said or done by her to associate herself with the published material that the appellant complains of is so crucial to what the observer would make of this case. In the absence of anything of that kind there is no basis on which the observer would conclude that there was a reasonable possibility that the judge was biased.
9. For these reasons, and for those given by my noble and learned friends Lord Rodger of Earlsferry and Lord Mance with which I agree, I would dismiss the appeal and affirm the Extra Divisions interlocutors.
LORD RODGER OF EARLSFERRY
10. I have had the advantage of considering the speeches of my noble and learned friends, Lord Hope of Craighead and Lord Mance, in draft. I agree with them. I add some remarks of my own, only because the challenge in the case is to the integrity of the justice system in Scotland. This is a matter of general concern, as was indeed indicated by the presence at the hearing of Mr Moynihan QC representing the Lord Advocate, not only as a Scottish minister with responsibility for the courts but also acting in the public interest.
11. The appellant is a Palestinian by birth. She avers that her family were supporters of the Palestinian Liberation Organisation. More particularly, she was actively involved in the preparation of a lawsuit brought in Belgium, alleging that the then Prime Minister of Israel, Mr Sharon, was personally responsible for the massacre in the Sabra and Shatila camps in Lebanon in September 1982. She avers that, in consequence, she is at risk of harm not only from Israeli agents, but also from Lebanese agents and, because of her links with the Palestinian Liberation Organisation, from Syrian agents. On that basis she claimed asylum in this country, but her application was refused by the Home Secretary and, on appeal, by an adjudicator. The appellant was refused leave to appeal by the Immigration Appeal Tribunal. She then lodged a petition in the Court of Session seeking a review of that refusal under section 101 of the Nationality, Immigration and Asylum Act 2002. The petition was considered by Lady Cosgrove who dismissed it.
12. The appellant makes no criticism of Lady Cosgroves reasons for dismissing her petition. Instead, in a petition to the nobile officium, she craved the court to set aside Lady Cosgroves interlocutor on the ground that it was vitiated for apparent bias and want of objective impartiality".
13. The appellant does not suggest that the judge could not be impartial merely because she is Jewish. Rather, the contention is that, by virtue of her membership of the International Association of Jewish Lawyers and Jurists, Lady Cosgrove gave the appearance of being the kind of supporter of Israel who could not be expected to take an impartial view of a petition for review concerning a claim for asylum based on the petitioners support for the Palestinian Liberation Organisation and involvement in the legal proceedings against Mr Sharon.
14. The legal test to be applied in cases of apparent bias is to be found in the speech of my noble and learned friend, Lord Hope of Craighead, in Porter v Magill  2 AC 357, 494H:
The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
It is equally well established that the fair-minded observer is not unduly sensitive or suspicious: Johnson v Johnson (2000) 201 CLR 488, 509, para 53, per Kirby J.
15. If all that the appellant could have pointed to was the aims of the Association, her petition could not possibly have got off the ground, since they are unexceptionable. The Associations website at the relevant period explained that:
The Association strives to promote Human Rights goals such as the prevention of war crimes, the punishment of war criminals, the prohibition of weapons of mass destruction, and international co-operation based on the rule of law and the fair implementation of international covenants and conventions.
The Association particularly addresses issues that are on the agenda of the Jewish people everywhere, and is particularly committed to combat racism, xenophobia, anti-semitism and denial of the Holocaust.
The same web page records that among the founders of the Association were a justice of the Supreme Court of Israel and Justice Goldberg of the United States Supreme Court. Lord Woolf is an Honorary Deputy President of the Association.
16. Counsel for the appellant submitted that it was necessary to look below the surface, however. He pointed to various articles in the Associations journal, Justice", referred to by Lord Mance. These included criticisms of the Belgian case against Mr Sharon. Understandably, counsel drew particular attention to the messages and addresses of the President of the Association, Judge Hadassa Ben-Itto. As a member of the Association, Lady Cosgrove would have received its journal and, counsel argued, there was nothing to show that she had ever dissociated herself from the views expressed by the President. So noscitur a sociis: the observer would identify Lady Cosgroves views from the company that she kept in an association whose President expressed extreme pro-Israeli sentiments.
17. In particular, at a conference held by the Association in December 2001, about three months after 9/11, the President said:
As a matter of personal choice I define myself as a Jew, a Zionist, an Israeli and a member of the legal community, in that order.
This appeared in the Winter 2001 issue of Justice". In my view, a judge who defined herself in that way would indeed be unable to deal with the appellants petition: a fair-minded and informed observer would readily conclude that there was more than a real possibility that such a judge was biased. The Advocate General accepted that.
18. But it is not suggested that Lady Cosgrove has ever said anything remotely comparable. Nor is it suggested that she has ever expressed support for the more extreme views expressed by the President of the Association or in any of the articles in Justice". In that situation there is, as a matter of general principle, no basis for fixing her with the views of the President or other contributors. She is, quite simply, an intelligent and educated individual whose reaction to the articles - supposing that she had read them - is quite unknown.
19. Moreover, those who were conducting the affairs of the Association during the relevant period were well aware that, in actual fact, members of the Association held widely differing views. The journal specifically says that the views of individuals and organisations published in it are their own and that inclusion in it does not necessarily imply endorsement by the Association. Even when referring to the issues confronting Israel, in her address to the international conference in December 2001, the President acknowledged that We know for a fact that the members of this Association are as divided on these issues as are Israelis and Jews everywhere.
20. I am accordingly satisfied that the fair-minded and informed observer would not impute to Lady Cosgrove the published views of other members, by reason only of her membership of the Association.
21. Mr Bovey QC had a second line of attack. He suggested that the observer would think that, by reading Justice", Lady Cosgrove might well have absorbed the more extreme views expressed in its pages by a process of osmosis. So there would be a real possibility that, as a result, she would be biased in dealing with the appellants petition.
22. I accept that much of the material from the journal, which the House was shown, could be described as highly partisan. But the selection was, naturally, skewed in the direction of contributions of that character. Reading this selection all at once is an artificial exercise. The lists of contents of the issues show that, as would be expected in a journal of an organisation with the aims set out above, many articles are of quite a different character. Even the issue for Winter 2001, containing the text of the polemical address by the President in December 2001 and other partisan material, included a scholarly article on Integrity as a Value in Jewish Law and a factual account of a judgment of the Supreme Court of Israel about the broadcasting of a particular programme on the Sabbath. So, for purposes of considering their impact, the selected articles have to be seen as simply part of the contents of the relevant issues. Moreover, the journal appears quarterly: anyone reading an article would be unlikely to retain any clear recollection of a similar article in an earlier issue. This would greatly reduce the chances of the articles having a cumulative effect on the reader.
23. So the hypothetical observer would have to consider whether there was a real risk that these articles, read at perhaps quarterly intervals, over a period of years would have so affected Lady Cosgrove as to make it impossible for her to judge the petition impartially. In assessing the position, the observer would take into account the fact that Lady Cosgrove was a professional judge. Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience. Like jurors, they swear an oath to decide impartially. While these factors do not, of course, guarantee impartiality, they are undoubtedly relevant when considering whether there is a real possibility that the decision of a professional judge was biased. Taking all these matters into account, I am satisfied that the fair-minded observer would not consider that there had been any real possibility of bias in Lady Cosgroves case.
24. In my view the decision of the Extra Division was correct and the appeal should be dismissed.
LORD WALKER OF GESTINGTHORPE
25. I agree that this appeal should be dismissed, for reasons set out in the opinions of all your Lordships. But I have reached that conclusion rather less readily, I think, than some of your Lordships.
26. Those who take on the responsibility of judicial office have to exercise a measure of restraint in associating themselves publicly with controversial causes. I agree with my noble and learned friend Lord Mance that a judge who expressed or endorsed the views put forward in December 2001 by an Israeli judge, speaking publicly and formally as President of the International Association of Jewish Lawyers and Jurists (IAJLJ), would not be a fit person to adjudicate on a case to which Ms Helow was a party, and to which the Sabra and Shatila massacres were relevant.
27. It is said that there is insufficient evidence that Lady Cosgrove did endorse those views. I accept that, and for that reason I would dismiss this appeal. But I do not accept that membership of an association such as the IAJLJ can be equated with subscribing to a daily or weekly newspaper, or that there is any room for conjecture that Lady Cosgrove may simply have omitted to cancel her annual subscription to the IAJLJ. She had been a high-profile member of the Scottish Branch at its inaugural meeting. Moreover the fair-minded and informed observer would be tending towards complacency if he treated the fact of having taken the judicial oath as a panacea.
LORD CULLEN OF WHITEKIRK
28. The primary argument for the appellant was that the informed and fair-minded observer, having considered the relevant facts, would conclude that, by reason of her being a member of The International Association of Jewish Lawyers and Jurists, there was a real possibility of bias on the part of Lady Cosgrove. It was asserted the Association had, or had acquired, a strong commitment to causes and beliefs at odds with the causes and beliefs espoused by the appellant". That assertion gained no support from the stated aims and objects of the Association, as published on its website. However, the appellants counsel relied on the views expressed in articles and pronouncements by the Associations representatives and officials which appeared in its quarterly journals. I am indebted to the noble and learned Lord Mance for his survey of them. While these views were without doubt strongly partisan in tone, they were drawn from a small selection of the total material appearing in the journal over a period of years. An informed and fair-mined observer who took account of what appeared in the issues of the journal would no doubt take an overall view and not simply concentrate on parts. Examinations of the lists of contents shows that the journals also included articles on matters of legal interest, the type of articles which one would expect to find in a periodical for lawyers and judges.
29. Critical to the appellants argument was the assumption that by reason of her membership Lady Cosgrove shared the views expressed in these articles and pronouncements. However, beyond the bare facts that she was a member throughout the relevant period and had helped to found the Scottish branch of the Association in 1997, there is nothing to indicate what part, if any, she had taken in the activities of Association. The informed and fair-minded observer would proceed on an assumption only if on an objective basis. While he or she would no doubt assume that as a member of the Association Lady Cosgrove regularly received copies of the journal, there is nothing to suggest that she endorsed or was interested in, let alone read, the articles and pronouncements founded on by the appellants counsel, as opposed to articles on matters of legal interest. Furthermore, as the President of the Association recognised, it could not be assumed that the members of the Association, who lived in a wide range of countries, were all of one mind in regard to the controversies in which Israel was embroiled. Thus there was not, in my opinion, an objective basis for the assumption on which the appellants argument depended.
30. The alternative argument for the appellant was that there was a real possibility of bias by reason of Lady Cosgrove having been influenced by the views expressed in the articles and pronouncements founded on by the appellants counsel. This argument runs into the same difficulty in the lack of an objective basis for the assumption that Lady Cosgrove would have read and been receptive to these views. That assumption also involves the inherent unlikelihood that Lady Cosgrove, despite her training and experience as a judge, would not have been able to put aside what she had read.
31. For these reasons and those given by my noble and learned friends, Lord Hope of Craighead, Lord Rodger of Earlsferry and Lord Mance, with which I agree, I would dismiss the appeal and affirm the Extra Divisions interlocutors.
32. The appellant, Miss Fatima Helow, appeals against an Interlocutor of 16 January 2007 whereby the Extra Division of the Inner House of the Court of Session refused the prayer in her petition seeking to hold vitiated for apparent bias and want of objective impartiality an interlocutor of the Lord Ordinary, Lady Cosgrove, of 24 November 2004 which had refused her petition under section 101(2) of the Nationality, Immigration and Asylum Act 2002.