Judge’s Failure to Recuse

In an appeal against the refusal of Keehan J to recuse himself from further hearings in private law proceedings under the Children Act 1989 about a four-year-old boy, the Court of Appeal affirmed the law relating to recusal: AZ (A Child) (Recusal), Re [2022] EWCA Civ 911 Underhill, V-P, Baker, Whipple LJJ

The right to a fair trial, both under the common law and Article 6 of the European Convention on Human Rights included the right to a trial and decision conducted and made by a decision-maker free not only from actual bias but also from the appearance of bias. Justice had both to be fair and be seen to be fair.

An appellate challenge to the conduct of a judge during trial could be either (i) a broad challenge to the fairness of the trial which was a matter for judicial evaluation or, (ii) an assertion that the judge gave the appearance of bias.

In a test for bias the court must first ascertain all the circumstances which had a bearing on the suggestion that the judge was biased, and then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased.

The application in the present case had been argued only on the basis of apparent bias.

The following points were of particular relevance:

The overriding objective in Part 1 of the Family Procedure Rules 2010 which required a judge to deal with cases justly, having regard to any welfare issues involved.

Judges in the family court had extensive case management powers which they were expected to exercise firmly. It followed that a judge in the modern era was permitted and indeed expected to intervene in proceedings to a far greater extent than in earlier times.

This was particularly so when the family court was deciding a question relating to the upbringing of a child.

Apparent bias was an area of the law in which the context and particular circumstances were of supreme importance which required an intense focus on the essential facts of the case.

The fair-minded and informed observer would adopt a balanced approach and was neither complacent nor unduly sensitive or suspicious.

It was necessary to consider the proceedings as a whole in engaging in the objective assessment of whether there was a real possibility that the tribunal was biased.

Bias meant a prejudice against one party or its case for reasons unconnected with the merits of the case.

The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. If in any case there was real ground for doubt, that doubt should be resolved in favour of recusal.

On the whole the English tradition sanctioned and even encouraged a measure of disclosure by the judge of his current thinking. An expression of scepticism was not suggestive of bias unless the judge conveyed an unwillingness to be persuaded of a factual proposition whatever the evidence may be.

If a fair-minded and informed observer, having considered the facts, would not conclude that there was a real possibility that the tribunal would be biased, then the objection to the judge must fail even if that left the applicant dissatisfied and bearing a sense that justice would not or may not be done.

Managing a trial could be challenging, even for an experienced judge, and it was sometimes necessary to react without much time for refined consideration. Different judges had different styles and counsel and litigations could usually be expected to cope with the talkative, the uncommunicative, the robust, and even irritated judge, provided the judge’s behaviour did not stray outside acceptable limits.

This case was concerned with alleged bullying of counsel by a judge. It was inevitable that situations of conflict between bar and bench would sometimes arise.

The Court of Appeal made the following points in that respect:

• Counsel were sometimes obliged to object to, or be critical of, something said or done by the judge in the course of a hearing. Judges should, and almost always did, appreciate that this was a fundamental part of the advocate’s role and should entertain the objection with respect, even if they regarded it as ill-founded. However, respect went both ways. The fact that judges these days conducted hearings less formally than in earlier generations was not a licence to disregard their position of authority.
• Trials were a very intense environment. Even the best counsel may in the pressure of the moment express themselves in ways which they did not really intend or say things which they would not have said if they had time for reflection. Such lapses could be overlooked or corrected with a light touch.
• There would be occasions when counsel’s conduct required explicit correction or admonishment. In such a case the judge should try to ensure that any rebuke was proportionate and delivered in measured terms without showing personal resentment or anger.
• A statement by the judge that he was considering referring counsel to the BSB was a particularly strong form of admonition and was accordingly particularly liable to have an adverse impact. For that reason, it would be rarely appropriate for a judge to raise the possibility of referring counsel to the BSB in the middle of a hearing. In the great majority of cases, the better course would be to wait until the end of the hearing which would avoid raising the temperature more than was necessary and would also mean that the judge could evaluate counsel’s conduct in the overall context of the hearing. In the rare case where misconduct had to be raised, it would require sensitive handling and the judge would be well advised to take time to consider carefully when and how to raise the matter.
• Since judges were human and hearings could be challenging for them as well as counsel, they would sometimes lapse from high standards, and incidents would occur which the judge should have handled better. But such lapses did not necessarily amount to bullying. Still less did it necessarily follow that in such a case the hearing would have been unfair or that the judge should recuse himself from any further involvement. If judge and counsel rubbed each other up the wrong way, whether the fault of either or both, that could be, and almost always was, put to one side in the decision-making process. Likewise, the professional training and experience of counsel should enable them to deal with criticism from the bench even if they believed it to be unjustified.

In the present case, it was appropriate for the judge to admonish counsel about the tone of his position statement. He acted appropriately by doing so succinctly and in a way that drew a line before he moved on to the substance of the application although his rebuke was not well-expressed.

It was inadvisable for the judge to mention a possible reference to the BSB in the course of a hearing.

There was a response by counsel to an intervention from the judge that was both disrespectful and impertinent which caused the  judge momentarily to lose his temper. Counsel asked for a short break for cooling-off which the judge rejected and instead warned counsel that he was getting close to being reported to the BSB.

Overall, the court concluded that the various instances would not lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased against the mother even if all seven instances alleged were considered cumulatively.

Therefore, there was no basis on which the judge should have recused himself. The appeal was dismissed.

Cases Cited in Judgment:

Law Relating to Recusal and complaint of bias

M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch
Lawal v Northern Spirit Limited [2003] UKHL 35
Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468
Porter v Magill [2001] UKHL 67; [2002] 2 AC 357
Jones v National Coal Board [1957] 2 QB 55
Man O’ War Station Ltd v Auckland City Council (formerly Waiheke County Council) [2002] UKPC 28
Singh v Secretary of State for the Home Department [2016] EWCA Civ 492, [2016] 4 WLR 183
Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117
Secretary of State for the Home Department v AF (No2) [2008] EWCA Civ 117, [2008] 1 WLR 2528
Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004, [2000] QB 451
Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515, [2014] 1 WLR 1943
Re G (A Child) [2015] EWCA Civ 834

Application for Adjournment on Medical Grounds

in Teinaz v London Borough of Wandsworth [2002] EWCA Civ 1040, [2002] IRLR 721

Burden of Proof

Re B (Children) [2008] UKHL 35, [2009] AC 1