Judgments - Helow (Ap) V Secretary of State For The Home Department and Another (Scotland) Appellate

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33.  The appellant is a Palestinian who arrived in the United Kingdom in August 2001 and claimed asylum here on 4 September 2001. After refusal of that claim, notice of decision to remove her to Lebanon was given on 16 December 2003. Her appeal against that notice was dismissed by the Adjudicator, Mr K R Forbes, on 27 May 2004. She sought permission to appeal against such dismissal by lengthy grounds of appeal, supplemented by letters dated 11 June and 22 July 2004. Permission was refused by the Vice-President, Mr Allan Mackey, of the Immigration Appeal Tribunal (“IAT”) on 29 September 2004 with short nine-line reasons. The appellant filed a further lengthy grounds (covering 25 pages) seeking review of that refusal by the Court of Session. The matter was in the ordinary course allocated to Lady Cosgrove to deal with on the papers. After seeking and obtaining from the parties a copy of the letter of 11 June 2004, she affirmed the decision to refuse permission to appeal in reasons extending to just over four pages.

34.  The appellant’s case, in seeking asylum and resisting removal, was and is that she and her family were involved politically with the PLO, that she was in September 1982 living with other family members in the Sabra/Shatila refugee camp when it was attacked, that numbers of her relatives were killed in the attack, that she had maintained publicly that Mr Ariel Sharon, later Prime Minister of Israel, was implicated in the massacre through the Israeli Defence Force, that in August 2001 she had assisted Belgian lawyers investigating the massacre and was involved in a criminal complaint brought in Belgium against Mr Sharon by survivors, that she was regarded as holding political opinions which were anti-Israeli, anti-Lebanese and anti-Syrian, and would be risk from Israeli, Lebanese and Syrian authorities as well as anti-Arafat and pro-Syrian and pro-Lebanese factions, were she to be required to return to Lebanon.

35.  The Adjudicator did not accept the credibility of the appellant’s account in a number of respects. One related to her late statement that she had taken part in a television programme with one Elie Hobeika or Hubeika, leader of the Lebanese Phalange special security troops allegedly involved in the massacre and later killed in a bomb blast on 24 January 2002, whose denial of involvement in the massacre she said that she had challenged in the interview. The Adjudicator regarded this as a late assertion regarding a “crucial” connection, which would if true have been mentioned earlier, and did not believe that there had been any such television appearance, although adding that “Even if she had appeared her concerns were directed solely at Hobeika. She does not claim that she put forward her own views or widened her list of targets". Another point on credibility made by the Adjudicator related to a lack of contemporary medical evidence to show that she was suffering from or being treated for post-traumatic stress syndrome at the time of the hearing as she had maintained.

36.  The letter dated 22 July 2004 with which the appellant supplemented her application to the IAT contained material, including a videotape and transcript, confirming that she had indeed taken part as she had stated in a television interview broadcast on 8 August 2001, and a statement from her explaining why the video had not previously been produced and commenting on the transcript. This statement explained that the transcript showed not only that she was present in the Shatila camp in 1982 and outspoken in blaming both the Lebanese and the Israelis for the massacre, but also that Mr Hobeika has been prepared to give evidence to convict Israelis in relation to the massacre, and repeated the suspicion which she had uttered before the Adjudicator that Mr Hobeika had been killed by Israelis for this reason. The statement also took issue with the Adjudicator’s statements that she had directed her claims solely at Mr Hobeika, and had not widened her targets. On the contrary, it maintained, she had in the broadcast held Israelis assisted by Lebanese soldiers to be responsible for the massacre. The letter dated 22 July 2004 also contained a doctor’s letter dated 19 August 2002 regarding her medical condition and an explanation as to why it had not previously been produced.

37.  The matters mentioned in the preceding three paragraphs were referred to in the grounds put before Lady Cosgrove. It was submitted that, since the IAT had only mentioned the letter of 11 June 2004, it cannot have considered the further evidence, lodged with the letter of 22 July 2004, confirming the appellant’s account regarding the television interview, and cannot have conducted the requisite balancing exercise in deciding whether or not to admit the fresh evidence. The IAT’s decision was further challenged on the grounds of inadequate reasoning, and error of law in failing to apply the proper test of a “real prospect of success". Lady Cosgrove analysed the new evidence, and considered that the material regarding the television broadcast gave no reason to think that the Adjudicator’s conclusions regarding the safety of return to Lebanon were not sustainable generally or that the petitioner was suffering from a medical condition at the time of the hearing before the Adjudicator. In her decision dated 24 November 2004, she found herself quite unable to hold that the IAT had erred in the exercise of its discretion or in law in refusing to give permission to appeal and considered that its reasons were sufficient and adequate. No criticism is made of and no point is made on Lady Cosgrove’s reasoning or decision as such.

38.  The submission regarding apparent bias and want of objective impartiality on the part of Lady Cosgrove arises from research on the web undertaken by the appellant’s legal advisers after Lady Cosgrove’s refusal of the petition under section 101(2). This revealed on 30 November 2004 that Lady Cosgrove is a member of The International Association of Jewish Lawyers and Jurists (“the Association”), and later that she as a member of the Outer House together with Lord Caplan of the Inner House was a founder member of a Scottish branch of the Association, welcoming participants to an inaugural meeting in Parliament House, the Court of Session’s home, on 30 November 1997. The fact that Lady Cosgrove is Jewish is of itself, rightly, not relied upon. But it is submitted that the Association “has a strong commitment to causes and beliefs at odds with the causes and beliefs espoused by the appellant", this on the basis that the Association is “anti-Palestinian …., anti-Moslem …., anti-pathetic to the PLO …., supportive of Israel ..., supportive of Ariel Sharon ..., critical of the legal action against Mr Sharon …., a campaigning organisation …., [using] immoderate expression …., one-sided …., and recruiting members as activists ….". These epithets are alleged to be justified by the contents of various policy statements, presidential messages and contributors’ articles published or reproduced in the Association’s quarterly publication “Justice” in years ranging from 1994 to 2004.

39.  The basic legal test applicable is not in issue. The question is whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there existed a real possibility that the judge was biased, by reason in this case of her membership of the Association: Porter v Magill [2001] UKHL 67; [2002] 2 AC 357. The question is one of law, to be answered in the light of the relevant facts, which may include a statement from the judge as to what he or she knew at the time, although the court is not necessarily bound to accept any such statement at face value, there can be no question of cross-examining the judge on it, and no attention will be paid to any statement by the judge as to the impact of any knowledge on his or her mind: Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, para. 19 per Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott V-C. The fair minded and informed observer is “neither complacent nor unduly sensitive or suspicious", to adopt Kirby J’s neat phrase in Johnson v Johnson (2000) 201 CLR 488, para 53, which was approved by my noble and learned friends Lord Hope of Craighead and Baroness Hale of Richmond in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2; 2006 SC (HL) 71, paras 17 and 39.

40.  The appellant also invokes or seeks assistance from the principle of automatic disqualification applied in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119. It was there held that a judge was automatically disqualified not merely if he or she had a pecuniary interest in the outcome of the case, but also if his or her decision would lead to the promotion of a cause in which he or she was involved together with one of the parties. In that case the judge’s involvement was as the chairman and a director of Amnesty International Charity Ltd, a charity wholly controlled by Amnesty International which had intervened in the case as a party to support the prosecution’s application for the extradition of Senator Pinochet to Spain. However, in my opinion the present case is a long way away from Ex p Pinochet, since the Association was not a party to or in any way concerned with (or so far as appears even aware of) the proceedings involving Miss Helow. Even where proceedings are brought by, for example, a bar association, mere membership of the association, as opposed to active involvement in its affairs or in the institution of the proceedings, may not bring the principle in Ex p Pinochet into play: Meerabux v Attorney General of Belize [2005] UKPC 12; [2005] 2 AC 513, esp at para 24 per Lord Hope of Craighead. I consider, therefore, that it is the principles mentioned in the previous paragraph that govern the present appeal.

41.  There has, in this case, been no statement obtained, or so far as appears sought, from the judge. The petition seeking to vitiate Lady Cosgrove’s decision of 24 November 2004 is based exclusively on material taken from the internet and from the Association’s quarterly publication “Justice". No material or information has been put forward to show or suggest that Lady Cosgrove had any involvement with the Association other than her membership and her welcoming appearance at the opening of its Scottish branch in 1997. A fair-minded observer would assume that, had she been an active member, some trace of this would have appeared.

42.  The basis upon which it is suggested that a fair-minded observer would conclude that Lady Cosgrove’s membership of the Association gave rise to a real possibility of bias has fluctuated between two poles: one, that the fair-minded observer would think that the views put forward by the Association represented views which she shared as a member, the other, that, if the fair-minded observer did distinguish between the Association and its members, he or she would think that Lady Cosgrove may have been “influenced” by the views expressed by the Association of which she was a member.

43.  If the epithets quoted in para 38 above represented an accurate characterisation of the Association and its aims, then the basis on which bias was alleged would not much matter. It would not be appropriate for a judge to join a one-sided, anti-Palestinian and anti-Moslem Jewish campaigning organisation using immoderate expression, and still less so for such a judge to decide a case involving an activist Palestinian Muslim who had engaged in criticism and pursuit of alleged illegal conduct by Israelis. The express aims and objects of the Association, as published on the Association’s website, are however very different from those suggested by the stated epithets. They appear under the heading “Pursuing human rights” as follows:

“The International Association of Jewish Lawyers and Jurists strives to advance human rights everywhere, including 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 is especially committed to issues that are on the agenda of the Jewish people, and works to combat racism, xenophobia, anti-Semitism, Holocaust denial and negation of the State of Israel.

IAJLJ was founded in 1969. Among its founders were Supreme Court Justices Haim Cohn of Israel, Arthur Goldberg of the United States and Nobel Prize laureate René Cassin of France. Our membership comprises lawyers, judges, judicial officers and academic jurists in more than 50 countries who are active locally and internationally as the need arises. Membership is open to lawyers and jurists of all creeds who share our aims.

The Association has Category II Status as a non-governmental organization (NGO) at the United Nations, enabling it to participate in the deliberations of various UN bodies. In this capacity, the representative of the Association has been actively involved in the work of the Commission on Human Rights in Geneva and of related bodies, and will now be engaged with the work of the United Nations Human Rights Council, which has replaced the Commission on Human Rights.

The Association also publishes Justice …. which examines a variety of relevant issues and current topics and is mailed to thousands of lawyers and jurists throughout the world...”

44.  Membership was invited on the website in the following terms:

“Membership in the International Association of Jewish Lawyers and Jurists is by direct individual membership. Lawyers and Jurists who share the aims of the Association as described on this site, are invited to join the IAJLJ by filling out the enclosed membership form and mailing it to us together with the annual membership fee for the current year.”

The relevant form contained this declaration:

“I hereby apply to become a member of The International Association of Jewish Lawyers and Jurists. I declare that I approve the aims and objects of the Association and undertake to comply with the Articles and Rules of the Association.”

45.  Clearly, there is nothing objectionable about the aims and objects of the Association as stated on its website and to which its members had expressly to subscribe. The appellant’s case is that the Association had in practice acquired a different and unbalanced character as shown, it is said, by the material exhibited and relied upon in support of the petition. I would observe at once, however, that the material exhibited and relied upon is selective rather than representative. It consists of those statements and articles which in the appellant’s or her advisers’ submission advance the case made regarding the character and purposes of the Association. Accordingly, it is necessary to be cautious about drawing general conclusions from it about the Association’s character or about the significance of such material as regards any individual member. It is clear from those indexes to issues of “Justice” which have been exhibited that there are many other articles not exhibited on subjects likely to have been of legal interest and of a character which any legal journal would be expected to contain. The second point is that any approach which assumes that a member of the Association would have read all or even most of the selected material is highly suspect, particularly when one is without any overview of the other material not selected. It is common experience for a member of an organisation receiving its regular publication to do little more than glance at its contents table or page, reading only the occasional item appearing to be of particular interest.

46.  It is, nevertheless, necessary to look at the material which has been selected and exhibited. This falls into three main categories: speeches made and reproduced or articles written by third party contributors; “policy statements” by the Association’s United Nations’ representative (in most cases Mr D Lack); and speeches or messages by the Association’s President (in most cases Judge Hadassa Ben-Itto, an Israeli judge). Starting with speeches and articles by third parties, each contents page of “Justice” carries the unsurprising disclaimer “Views of individuals and organisations published in JUSTICE are their own, and inclusion in this publication does not necessarily imply endorsement by the Association". Individual phrases from speeches and articles must be read in this light. Apart from this, the presentations and articles published in “Justice” do not anyway appear to go generally beyond legitimate expression of reasoned views; and they certainly do not appear objectionable in a way which justifies any criticism of the Association for publishing them or justifies any conclusion that the Association must implicitly have agreed with or endorsed them. An example is the article cited in support of the proposition that the Association is anti-Palestinian: “The Current Conflict - Legal Aspects", by Colonel Daniel Reisner, Head of the International Law Department (“ILD”) of the Israeli army, published in edition No 30 of “Justice". The article was the text of a presentation made by Colonel Reisner to an international conference on Standing by Israel in Time of Emergency organised by the Association and the Jewish Agency in Jerusalem in December 2001. In it he said at one point that “The Palestinians believe that while we are constrained by rules of morality and legality, they are not". Colonel Reisner went on to say that “As a lawyer, it is my job to make sure that the Army will fight lawfully and morally", and he also welcomed the supervision of the Israeli Supreme Court. Although the first passage is a generalisation which, taken literally, must be far too broad, no other passage is suggested to be objectionable and the article appears generally to be a useful account of the ILD’s activities and approach.

47.  The “Winter 2002” edition of “Justice” (No 30, evidently published early in 2002) reproduces the text of five other presentations at the December 2001 conference, on three of which reliance is placed in various respects, one entitled “Anti-Israel Bias in the International Arena: Politicisation of International Criminal Law” by Alan Baker, Legal Adviser of Israel’s Foreign Ministry, another “Geneva: Israel being Singled Out and Discriminated Against, Fighting Back, with Few but very Important Allies” by Israel’s Ambassador to the United Nations, Mr Yaakov Levy. The senior Israeli officials who gave these presentations clearly felt strongly that Israel was receiving a raw deal in international fora, particularly the United Nations, but such expressions of view, backed by specific instances, are legitimate. They would not justify a description of such officials as “anti-Moslem", a phrase which suggests general prejudice against anything Muslim. Still less can they support a case that the Association is anti-Moslem.

48.  Reliance is also placed on presentations and articles by third parties which contain references to Mr Sharon and to the Belgian legal proceedings against him. A warm greeting by Mr Sharon to the December 2001 conference was reproduced in edition No 30 of “Justice” and is relied upon for the assertion that the Association is supportive of Mr Sharon. But this greeting was made in the context of the December 2001 international conference in Jerusalem at a time when Mr Sharon was Prime Minister of Israel and is on any view unsurprising in such a context. Criticisms directed - by Mr Alan Baker in the presentation already mentioned and by others in the later Spring 2003 and Summer 2004 editions of “Justice” - at the Belgian prosecution instituted against Mr Sharon as a politically motivated abuse are covered by the disclaimer and are again in terms which, however forceful, remain within the bounds of legitimate expression of view. The material exhibited from the Spring 2003 edition includes well-informed articles by an academic and two Belgian lawyers. They went to the legal aspects of what Mr Alan Baker had in his article described as the “extremely wide and liberal system of universal jurisdiction” in relation to international crimes which the Belgian legislator had, as Mr Baker put it, introduced as “a well intentioned if perhaps a somewhat naïve action".

49.  The Spring 2003 edition also included a powerfully expressed article, to which considerable attention appears to have been given below, by Professor Yoav Gelber, Head of the School of History at Haifa University. In it he described the background to the Sabra/Shatila massacre and his personal frustration at the Israeli government’s initial refusal to investigate the massacre and said that “The evasive answers given by Begin and his ministers to the media and the public made me feel cheated". He went on to record that he had as a result resigned his membership of another commission of inquiry, that within a week the government had given in to pressure to appoint a judicially chaired commission to investigate the massacre, and that its report, although not finding any office holder directly responsible, criticised several including Mr Begin, and led to Mr Sharon being required to resign from his post. Finally, he described how the Phalange had come to terms with the Syrians and how Mr Hobeika had served them to his last day. He concluded that “The lawsuit submitted in Belgium is no more than a propagandist attempt - using a very peculiar situation that Belgian law has created - to blame Israel for a domestic Lebanese act of revenge and to remind a forgetful world of [the Palestinian refugees’] continued existence in the their camps". As is evident, this is an article which was by no means one-sided in its attitude to Israel’s past conduct. In the Summer 2004 edition Israel’s Minister of Justice described how the prosecution of Mr Sharon had finally ended when Belgian law was changed at the instance of the United States (faced with suits against President Bush, Secretary of State Powell and others). Forcefully expressed though both these contributions once again are, I find it difficult to see what relevance or influence a fair-minded observer would think they had or might have for or on a professional judge in the United Kingdom, charged with the resolution of an issue such as that put before Lady Cosgrove, even if she happened to read them. It would be a very poor judge whose decision on the question whether the IAT erred in law in refusing permission to appeal was affected by descriptions by Israeli contributors of the Belgian proceedings as propagandist or political, and this is so even if she happened herself to share the same view.

50.  The President’s speeches or messages and the policy statements give rise to different considerations, in so far as they are not subject to any disclaimer and came from the Association’s leading figure or were made on the Association’s behalf. It may be true, as the Inner House observed, that one underlying theme is a demand for fair treatment for Israel, not so much on the basis that Israel had never done any wrong, as on the basis that Israel was being made the only target of blame for any wrong. But it is also true that the speeches, messages and statements take a very strong, verging on the strident, stance, pro-Israeli and highly critical of the Palestinian Authority and PLO, they are not confined to legal issues and they include what may be described as political or campaigning material of a nature and in terms unfamiliar in a legal journal. The majority of the policy statements on the Association’s website relate to the Association’s activity as a non-governmental organisation with Category II Status at the United Nations enabling it to participate in the deliberations of various United Nations’ bodies, particularly the Commission on Human Rights in Geneva. Thus, from 2000 through to 2004, the Association’s representative with the Commission issued a number of policy statements very critical of the Arab League, Islamic extremist groups and the Palestinian Authority for lies about Israel, for denial of Israel’s right of existence, for racist or anti-Semitic statements towards Israel, for rejection of Israel’s offer to accept virtually all their reasonable demands, and for the support of terror or a terror campaign against Israel. (Two such policy statements were made jointly with the World Jewish Congress, the banner of which organisation’s website evidently bears the slogan “All Jews are responsible for one another". However, to seek to deduce from this association by the Association with the World Jewish Congress some conclusion relevant to Lady Cosgrove’s suitability to adjudicate upon Miss Helow’s application seems to me to go on any view too far into remote considerations.)

51.  The President in statements in “Justice” and elsewhere extended her early criticism of Moslem fundamentalism in September 1994 to later, more general criticism of the Palestinian leadership. She said in Spring 2001 that such leadership had done nothing to curb and had even promoted incitement against Israel, in Autumn 2001 that it had chosen a path of violence, and in Spring 2004 that she was “sometimes told not to blame Moslems, only the radical fundamentalist elements", but that “at the expense of not being politically correct, the truth must be told. Today, it is not only radical groups like Hamas which are using the Protocols [the alleged ‘Protocols of the Elders of Zion'] as a means to de-legitimize both the Jews and the Jewish State". Her address to the December 2001 conference (reproduced in edition No 30 of “Justice”) was in even less commonplace terms and represents perhaps the highpoint of the appellant’s case. She opened in this unusual way: “Let me be very personal. Let me speak not as a public figure, not as President of this Association, but as a person who constantly needs to define her own priorities, her own commitments. 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". Later she spoke of the welcome given by Jews and Israelis to the United Nations as the focal point for enforcing human rights, but of the bitter disillusion which had followed, because “We are still being discriminated against both as Jews and as the Jewish State". She criticised the Belgian prosecution of Mr Sharon, saying “…absent on the Belgian dock are those who actually committed the murders in Sabra and Shatila. The only one they propose to place in the dock is the Israeli Prime Minister. One group of Arabs killed another group of Arabs in a most brutal massacre, and I did not hear of the Lebanese government setting up a public committee of inquiry, as did Israel, or being censured in the United Nations, let alone being accused in a criminal court".

 
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