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

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52.  President Hadassa Ben-Itto ended her address to the December 2001 conference by recognising the existence of differences of view, but with a general call for solidarity, for support for Israel and the United States in a fight against terror and for support for the Association and the Israeli security forces, in these terms:

“We have carefully organized this Jerusalem conference to supply you with relevant information, to expose you to the views of experts on important relevant subjects. Each one must decide for himself how to use this information; you will each define to yourself the extent of your commitment. Each one will decide how to deal with the enormous dilemmas that face us, and on which we must take a stand if we wish to sound credible.

You may say: this conference is about solidarity, about standing together, and of course it is. By coming here you have made a statement: you have said that terror will not bring us down, you have said that Israel is not alone.

So, why then am I burdening you with all these controversial issues? Why do I speak on this occasion of internal conflicts that are part of the political agenda in Israel? I do so because if you wish to do more than make a statement, if you are ready to be our emissaries abroad, if you are willing to confront the elements that are constantly at work creating a hostile world opinion against us, often using not only distorted facts but also sophisticated arguments, you must be well armed, not only with facts but also with ready answers to questions aired daily in the international media.

I hope I have succeeded in posing this partial list of questions as objectively as possible. I myself do not have a ready answer to all of them, so, obviously, I have no answers for you. We know for a fact that the members of this Association are as divided on these issues as are Israelis and Jews everywhere. Our contribution is therefore limited to offering you as many facts as possible. The speakers you will hear were not chosen for their views but rather for their expertise. We shall continue to be as informative as possible both in our international meetings, through our publication JUSTICE, and through our site on the Internet.

We urge those who have not yet formally joined our Association, to do so. When we speak out in public, including at the UN bodies, we need to speak in a strong voice representing large numbers of Jewish lawyers. By coming here to stand with us at this Jerusalem conference, I hope you are expressing not only your solidarity with Israel, but also your support for the aims of our Association, what we stand for and what we do.

Bless you all for being here today. In these difficult times having convened in Jerusalem in such impressive numbers is no mean achievement in itself.

May I conclude by sending a message of support to the Israeli security forces, both army and police, who are out there defending us daily, at great risk. We send our condolences to the bereaved families who lost their beloved ones in heinous acts of terror, and best wishes for a speedy recovery to all those wounded in these attacks.

We also send our condolences to the American people who have suffered such a tremendous loss in a barbaric attack on September 11. We who have been exposed to ongoing terror for so long, feel their anguish and share their anger. We congratulate the American President and his government for their firm commitment to fight terror all the way to victory, and we wish them and all those who support them success in this unique endeavour to save civilization.”

53.  In my opinion a judge who had expressed, or was President of an Association which had expressed, views of the nature summarised and set out above could not sit on an application such as that which Lady Cosgrove determined. A fair-minded observer would regard such a judge as too closely and overtly committed to supporting the cause of Israel generally and of Mr Sharon in relation to the Sabra/Shatila massacre. It would not be appropriate for her to decide a case in which the appellant was relying on her past conduct and condemnation regarding Israel’s and Mr Sharon’s involvement in the Sabra/Shatila massacre as a main basis for her fear of reprisals if she was returned to Lebanon. But the President - when she said that she was speaking personally, when she invited solidarity and support and when she recognised the existence of internal conflicts and divisions of opinion within Israel - was, correctly, acknowledging that she could not either determine or reflect the views of any individual member. There is nothing save membership of the Association to link Lady Cosgrove and the President. There is no suggestion that Lady Cosgrove was in Jerusalem in December 2001 to hear the President’s greeting. There is no question of Lady Cosgrove having committed herself expressly to any such views as the President or any other spokesperson for the Association expressed. There is nothing to show that she was even aware that they were being expressed. Lady Cosgrove is in these respects, and apart from her membership, in no different position to any judge, who may or may not have private views about issues which come before the court, but who is expected to put them aside and decide the case according to the law.

54.  Would Lady Cosgrove by virtue of her membership alone be taken to subscribe to or approve all that the Association’s President or spokesperson may publish or communicate to organs such as the United Nations Human Rights Commission? In my opinion, the answer is a clear negative. Membership of such an association - for a subscription most unlikely to be regarded as in any way burdensome - connotes no form of approval or endorsement of that which is said or done by the association’s representatives or officers. In the case of Lady Cosgrove, membership may connote an interest in the content of legal articles none of which may be included in the material exhibited. Or it may be or have become effectively formal - connoting little if anything more than a failure to review and cancel the annual subscription or a general willingness to subscribe to an organisation believed to stand simply for the unobjectionable aims and objects to which every member had to subscribe.

55.  It is no doubt possible to conceive of circumstances involving words or conduct so extreme that members might be expected to become aware of them and disassociate themselves by resignation if they did not approve or wish to be thought to approve of them. But the present material falls far short of involving such circumstances. Lord Nimmo Smith giving the opinion of the Inner House 2007 SC 303, para 44 said: “we do not accept that it could reasonably be assumed by any fair-minded and informed observer that every member of this apparently very large and widely-based international organisation (with wide and generally-expressed aims which are beyond criticism) would necessarily share all the views apparently expressed by its representatives in the ways, and on the occasions, referred to. ….. It must not be forgotten that, although the concentration in the hearing before us was necessarily on certain views apparently expressed on particular matters (especially on what was said to be the ‘material aspect of the case', the question of Israeli responsibility in respect of the Sabra/Shatila massacre), these represented only a very small proportion of the many views expressed on diverse and varying issues over many years". My only comment would be that the relevant question is not whether it can be concluded that a member would “necessarily” share the views of the Association’s representatives. But I cannot think that a fair-minded and informed observer would in the light of Lady Cosgrove’s continuing membership alone conclude that there was a real possibility that the Association’s President was in substance speaking on Lady Cosgrove’s behalf or that Lady Cosgrove was in any way endorsing or associating herself with statements of the character presently in issue made by the President or Mr Lack or anyone else speaking on the Association’s behalf in public or to bodies such as the United Nations Commission on Human Rights

56.  The other basis on which the case is put involves the submission that, by virtue of her membership and receipt of “Justice", Lady Cosgrove may have been influenced, albeit subconsciously, by the content and general attitude of some of the material, particularly once again the policy statements and President’s speeches or messages. In my view, that submission must be categorically rejected, even if one assumes that Lady Cosgrove ever read and digested such material. Judges read a great deal of material which is designed to influence them, but which they are trained to analyse and to accept, reject or use as appropriate. A person may well subscribe to or read publications in order to inform him or herself about views different to his or hers. The suggestion that mere membership gives rise in the eyes of a fair-minded observer to a real possibility of unconscious influence, through some form of osmosis, by materials in the relevant association’s periodical which would be available to be read by the member is a blanket proposition of great potential width that I reject without hesitation.

57.  It remains to mention two considerations to which attention was paid during submissions. The first is the oath that Lady Cosgrove will as a judge have taken, in familiar terms: “I, ... , do swear that I will well and truly serve our Sovereign …. in the office of Judge of the Court of Session, and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or illwill. So help me God.” In R v S(RD) [1997] 3 SCR 484, L'Heureux-Dubé and McLachlin JJ identified the taking of the judicial oath as often the most significant occasion in the career of a judge (para 116), and said (para 117) that “Courts have rightly recognised that there is a presumption that judges will carry out their oath of office. … This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with ‘cogent evidence’ that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias.” At para 119, they went on to say that

“The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial ‘does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognise, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind'".

So viewed, the judicial oath appears to me more a symbol than of itself a guarantee of the impartiality that any professional judge is by training and experience expected to practise and display. But on no view can it or a judge’s professional status and experience be more than one factor which a fair-minded observer would have in mind when forming his or her objective judgment as to the risk of bias.

58.  The other consideration is that Lady Cosgrove did not volunteer a reference to her membership of the Association. Had she disclosed this, the very fact of disclosure could have been seen by a fair-minded observer as a “badge of impartiality", as showing that “she ha[d] nothing to hide and [was] fully conscious of the factors which might be apprehended to influence … her judgment": Davidson v Scottish Ministers (No 2) 2005 1 SC (HL) 7, paras 19 and 54, per Lord Bingham of Cornhill and Lord Hope of Craighead. Again, however, this can only be one factor, and a marginal one at best. Thus, to take two opposite extremes, disclosure could not avoid an objection to a judge who in the light of the matter disclosed clearly ought not to hear the case; and non-disclosure could not be relevant, if a fair-minded and informed observer would not have thought that there was anything even to consider disclosing. In the present case, I do not consider Lady Cosgrove’s failure to disclose her membership of the Association to be a factor which would carry any great weight in the balancing of factors which a fair-minded and informed observer must be assumed to undertake. A fair-minded and informed observer would I think be much more likely to conclude that it never crossed her mind that her membership involved anything which it was relevant for her to disclose.

59.  For these reasons, I would dismiss this appeal and affirm the decision of the Extra Division of the Inner House refusing the prayer of the appellant’s petition.

 
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Prepared 22 October 2008