Helow v Home Secretary - [2008] UKHL 62

HOUSE OF LORDS	SESSION 2007–08 [2008] UKHL 62
on appeal from:[2007] CSIH 5

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)

Appellate Committee

Lord Hope of Craighead

Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Cullen of Whitekirk
Lord Mance

Counsel

Appellant: First Respondent:

Mungo Bovey QC Lord Davidson of Glen Clova QC

Scott Blair Colin Tyre QC

(Instructed by Drummond Miller LLP) Ailsa Carmichael

(Instructed by Office of the Solicitor to the Advocate

General for Scotland)
Second Respondent: Gerry Moynihan QC

(Instructed by Office of the Solicitor to the Scottish

Executive)

Hearing dates:

16 and 17 JUNE 2008

ON
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)
[2008] UKHL 62

LORD HOPE OF CRAIGHEAD
My Lords,
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] UKHL 62
Decision Date: 22 October 2008

CaseChat Overview and Summary

The case of Helow v Home Secretary involved an appeal against a decision made by the Extra Division of the Inner House of the Court of Session. The appellant, Fatima Helow, a Palestinian, sought to challenge the decision of Lady Cosgrove, who had dismissed her petition for judicial review of a decision by the Home Secretary to refuse her asylum in the United Kingdom. The central issue in the appeal was whether Lady Cosgrove's membership in the International Association of Jewish Lawyers and Jurists (IAJL) created a real possibility of bias in the adjudication of the asylum petition.

The House of Lords, in dismissing the appeal, found that there was no real possibility of bias on the part of Lady Cosgrove. The court considered the nature and content of the IAJL's publications, specifically its quarterly journal "Justice", and noted that while some of the content was highly partisan, it was not representative of the entire publication. The Lords also highlighted that the fair-minded and informed observer would take into account the fact that Lady Cosgrove was a professional judge, capable of detaching her own mind from things she did not agree with. Furthermore, the court held that Lady Cosgrove's membership in the IAJL alone did not equate to an endorsement of the views expressed in the journal or by the Association's representatives. The court also found that there was no evidence that Lady Cosgrove had been influenced by the content of the journal, even if she had read it.

In conclusion, the House of Lords dismissed the appeal and affirmed the decision of the Extra Division of the Inner House, finding no real possibility of bias on the part of Lady Cosgrove. The court's decision emphasised the importance of the fair-minded and informed observer test in determining apparent bias and the need for objective judgment in such matters.

Orders