Court of Appeal asked to set aside LJ Hickinbottom’s Order because of Bias

 

 

The English Democrats have applied to the Court of Appeal to set aside Lord Justice Hickinbottom’s Order - on the Grounds of 'Apparent Bias'.

The English Democrats have now made an application to the Court of Appeal to set aside Lord Justice Hickinbottom’s Order.

Here is the text of the statement in support of our Application:-

1.         General Introduction

The Court is referred to the Claimant’s Judicial Review Grounds (‘the JR Grounds’) and the Claimant’s Written Submissions (‘C Submissions’) for the background facts and core submissions of law in this matter.  Terms defined in C Submissions are applied here.  The Court is also referred to the First Defendant’s Summary Grounds of Resistance (‘the SGR’) and the Claimant’s reply to the same (‘C Reply’).

The application for permission was considered by Spencer J. and, by order dated 18.6.2019 and sent to the Claimant’s solicitors on 19.6.2019 (‘the Order’), he refused permission to issue judicial review proceedings and, pursuant to CPR r. 52.12 (7), declared that the application for permission was “Totally Without Merit”.

Accordingly, the Claimant was denied the right it would otherwise have to an oral renewal hearing heard in open court.  Pursuant to r. 52.8 (4) any appeal against the Order must be made ‘within 7 days of service of the order of the High Court refusing permission to apply for JR’.  Pursuant to r. 2.8 (3) (b) (iii) the date of deemed service (21.6.2019) was excluded and this application had to be filed by 4 pm on 28.6.2019.

It is notable that, notwithstanding 35 pages of detailed submissions in support of the application for permission in the JR Grounds, C Submissions and C Reply (that the learned judge below declared he had read ‘very carefully’) the judge’s decision on the merits of the claim is set out in three short paragraphs amounting to 13 lines and around 150 words, three lines of which merely rely upon five paragraphs in the SGR.  The learned judge, with respect, scarcely engaged with the Applicant’s constitutional arguments on the by-passing of Parliament through use of the Royal Prerogative. The published opinion of the Rt Hon. Sir Richard Aitkens was not addressed at all.  Put shortly, Hickinbottom LJ treated an argument supported by a distinguished former member of his own court as “Totally Without Merit”.

It is notable and a matter about which the Claimant is legitimately aggrieved that, although the Claim was issued on 1.4.2019 and the SGR filed and served on 17.4.2019, the claim was not considered by a single High Court judge for over two and a half months after issue, in spite of an application for expedition and notwithstanding the obvious constitutional importance of the claim.  Moreover, this was in spite of an order by Supperstone J. that, although refusing an application for expedition, did so taking into account that the Defendants had (at that time) undertaken to file and serve the SGR by 14.6.2019; and thereby suggesting that the application for permission would be determined shortly thereafter.  In that time, much debate about whether and how the UK should leave the EU had continued and the then Prime Minister has resigned as a result of her policy on Brexit. It is apparent that Supperstone J. did not envisage the degree of delay which eventuated. 

2.          The learned Lord Justice was either actually biased against the Claimant as a litigant and/or against the outcome sought by the Claimant; alternatively, the published positions of the learned Lord Justice were such as to give the appearance of apparent bias; and in either case his Order should thereby be set aside

Legal framework

The relevant principles are set out in a series of recent cases of high authority:-

R v Bow Street Magistrate ex p Pinochet [2000] 1AC119 (House of Lords)

Locabail (UK) Ltd v Bayfield Properties [2000] QB 451 (Court of Appeal)

Millar v Dickinson  [2002] 1 WLR 1615 (Privy Council)

Porter v Magill [2002] 2 AC 357 (House of Lords)

Taylor v Lawrence  [2003] QB 528  (5-member Court of Appeal)

Lawal v Northern Spirit  [2004] 1 All ER 187  (House of Lords)

Pinochet, Re [1999] UKHL 52 (15 January 1999) 
URL: http://www.bailii.org/uk/cases/UKHL/1999/52.html
Cite as: [1999] UKHL 52

The authorities give rise to three categories of case in which decisions may be set aside on the grounds of partiality:-

First, in cases in which a judge has been influenced by partiality or prejudice (Locabail para 3) (actual bias).  Bias may be described as a predisposition or prejudice against one party's case or evidence on an issue for reasons unconnected with the merits of the issue (Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 at [28],  per Scott Baker L.J.  Bias also includes 'an inclination or a pre-disposition to decide the issue only one way, whatever the strength of the contrary argument' (Davidson v Scottish Ministers [2004] UKHL 34; R (on the application of DM Digital Television Ltd) v OFCOM [2014] EWHC 961 (Admin)).

Pre-determination and apparent bias are distinct concepts: R (on the application of Persimmon Homes Ltd) v Vale of Glamorgan Council [2010] EWHC 535.  In British Academy of Songwriters, Composers and Authors [2015] EWHC 1723 (Admin) at [168], [277], a case concerning a complaint about predetermination and a duty to consult, Green J. found that ‘The law focuses upon actual predetermination but also the appearance of predetermination’. 

Moreover, as Lord Goff of Chieveley held in R v Gough ([1993] AC 646 at p.659):

“Bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias"

A judge's comments may also demonstrate actual bias (O'Neill v HM Advocate (No 2) [2013] UKSC 36 at [53], per Lord Hope of Craighead DPSC).  A precautionary approach to recusal is a sensible one (Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515 at [39]) and (at [41]) the decision made by a judge whether or not to accede to an objection based on apparent bias is a 'multi-factorial decision'.

Secondly, in accordance with the principle that no man may be judge in his own cause.  This covers situations where the judge has a pecuniary interest, or, occasionally, some other form of interest.    Such an interest will automatically disqualify a judge (Locabail para 4). 

Thirdly, in circumstances in which “a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (apparent bias):  per Lord Hope of Craighead in Porter at para 103.     In this regard,

(1)            "Public perception of the possibility of subconscious bias is the key":  per Lord Steyn in Lawal at para 14; and

(2)            The "indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago":  per Lord Steyn in Lawal at para 22.

In Porter v Magill (at p.494 E-H paras 102-103) Lord Hope suggested that the traditional test formulated in R v Gough ([1993] AC 646) should be modified, so as to bring the English test fully into line both with other common law jurisdictions and with the manner in which the ECtHR has interpreted article 6.  In so doing, Lord Hope largely adopted, with one modification, a suggestion from Lord Phillips of Worth Matravers MR in In re Medicaments (no 2) [2001] 1 WLR 700.  The test thus reformulated is that:

"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge is biased.  It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased."

As Lord Hope of Craighead emphasised (at para 88), a tribunal must not only be independent, but also it must not appear to lack independence.

If there is any doubt it should be resolved in favour of recusal:  per Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd  [2000] QB 451 at para 25.

The Strasbourg jurisprudence is to very similar effect.  In Findlay v UK (1997) 24 EHRR 221 at p.224 the European Court of Human Rights (‘the Strasbourg Court’) held that:

As to the question of 'impartiality', there are two aspects to this requirement.  First, the tribunal must be subjectively free from personal prejudice or bias.  Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect."

(Para 74, emphasis added)

The concepts of independence and impartiality are closely linked: see, for example, Lord Bingham at para. 8 of R. v. Spear [2003] 1 AC 734:

‘The European Court has defined with great clarity and consistency the meaning of the article 6(1) requirement that a tribunal be independent and impartial. It is enough to quote paragraph 73 of the court's judgment in Findlay v United Kingdom 24 EHRR 221, 244-245:

"The court recalls that in order to establish whether a tribunal can be considered as 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and objective impartiality are closely linked and the court will consider them together as they relate to the present case." 

It should also be remembered, as the court pointed out at p 245, para 76, that in order to maintain confidence in the independence and impartiality of the tribunal appearances may be of importance."

(Emphasis added)

The Strasbourg Court has also found that actual or apparent bias can affect the independence of a tribunal and thereby impact upon a litigant’s right, in the determination of his civil rights, to a fair and public hearing.  (Of course, in this case the right to a public hearing has itself been precluded by the learned judge’s decision.) 

In Findlay v UK (1997) 24 EHRR 221 at p.224 the European Court of Human Rights held that:

‘…in order to establish whether a tribunal can be considered as 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.

‘As to the question of 'impartiality', there are two aspects to this requirement.  First, the tribunal must be subjectively free from personal prejudice or bias.  Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.’

(Para 73, emphasis added)

Possible actual bias against the Claimant as a litigant

The Claimant is a political party whose public policies are (inter alia):

(1)                That England should be independent from the United Kingdom; and

(2)                That the United Kingdom (or an independent England) should leave the European Union.

That the Claimant is a political party is of particular importance: the said positions are not merely the political views of an individual (which might be distinguished from his or her merits as an individual by a fair minded judge with different opinions) but are the policy positions by which the party is legitimately identified and judged.

Comments may indicate bias (O'Neill v HM Advocate (No 2)) and, ‘even though [the learned judge] may in good faith [have] believed that he was acting impartially, his mind may unconsciously [have been] affected by bias (R v Gough).

In support of this and the following allegation of actual bias, the Claimant relies upon what it respectfully submits is the paucity of the reasoning of both the learned Judge below and of the learned Lord Justice herein and the steps they took (by wholly unjustified TWM declarations) to remove the possibility of any oral hearing  and shut down the challenge. 

Possible actual bias against the outcome sought by the Claimant

This claim is distinguishable from claims (for example) involving alleged electoral offences committed by adherents of a Leave vote or (in other circumstances) a candidate or political party.^[1]  In those cases, while campaigners are identified by their political positions (distinguishing such cases from any case in which a litigant may have a political opinion but which is entirely incidental to the matters at issue), the allegations fall to be determined on their merits and are not linked directly to the prospect of the UK leaving the EU.^[2]

Here, as has been alleged at the outset, the decision of the Lord Justice of Appeal directly affects the possibility of – and materially contributes to – the United Kingdom leaving or remaining in the EU: an outcome that the learned Lord Justice has demonstrated he is opposed to. 

Apparent bias

Alternatively, even if the Court is not satisfied that the learned Lord Justice was actually biased against either the Claimant or the outcome sought by the Claimant, ‘a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’.  Moreover, there is at least a possibility of such apparent bias and so the Court should allow the Application.

Outcome if either of these grounds are successful

The Order of the 19^th August be set aside and reconsidered.  In the reconsideration, pursuant to CPR r. 52.15 (3), the Court of Appeal has the power (on paper or at a hearing) simply to give permission for judicial proceedings to be brought, thus avoiding the need for a further hearing in the Court of Appeal to determine whether to grant permission.  The editors of the White Book (at Vol 1, 52.15.2/3) discuss the solution to the ‘Gordian knot’ of the costs escalation that would be caused by a hearing of an appeal in the Court of Appeal and suggests that, in the event a single judge considers an application for permission to appeal (to the CA) arguable, he or she should grant permission to bring JR proceedings.

It is submitted that such an outcome would have been particularly appropriate in this case.  The decision of Spencer J. was not only made without a hearing but precluded the right to a hearing in the High Court, notwithstanding substantial evidenceand detailed legal argument.  This puts into sharp relief the need for open justice where there can be no suggestion that individual judges are shutting out important litigation.  It might be argued that the very existence of the right to preclude an oral hearing is invidious, non-compliant with ECHR Article 6(1) and should be removed.  Regardless, it is particularly important to ensure a public hearing of the Claimant’s case – one of overwhelming public importance whatever the merits either of the legal case or of the consequences of the declaration sought – in circumstances where the learned Lord Justice has (it is regrettably necessary to say) improperly failed to recuse himself notwithstanding his (at least) apparent bias.

Further Points

Lord Justice Hickinbottom’s political activism is directly opposed to the English Democrats who are a patriotic and nationalist party.  Multi-culturalism with its emphasis on trying to break society up into diverse “communities” is directly contrary and inimical to any true nationalism including English nationalism, with its emphasis on integration and assimilation into the (English) nation.  Essentially the Applicant political party’s policies favour national unity, defining the nation as England, whereas multi-culturalism is divisive.  This is nothing to do with race.  Many fine members of the ethnic minorities love England and share her values.     

It is also assumed that Mr Justice Hickinbottom is also, in National Identity terms very opposed to the English Democrats as it seems that he is proudly Welsh, despite having lived and worked most of his life in England.

In his biography of Master Arbitrator 2018/2019 of the Worshipful Company of Arbitrators it says that he is a member of the London Welsh Male Voice Choir for over 20 years and he and his wife have a house in Cardiff where they spend most weekends.  Companies House also records that he was formerly a Director of the London Welsh Centre Ltd and the London Welsh Centre Trust.  No judge strongly associated with one of the other nations which make up the United Kingdom should have had anything to do with a case brought by the English Democrats, not least on a subject as contentious as the legality of the UK’s ongoing membership of the EU.      

Mr Justice Hickinbottom is also on publically available record as being intensely Europhile and it is on their public website that he is a Fellow of the European Law Institute whose published first objective is:-  “To evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by the Member States.”    

This is a political stance which is clearly in direct opposition to, not only the policies of the English Democrats, but also specifically in direct opposition to what this case was about, which was to try to achieve a “No Deal” Brexit.  The Appellant wrote to the European Law Institute on 5^th September 2019 asking if the information on their website regarding Lord Justice Gary Hickinbottom is up to date and accurate.  No such confirmation has yet been received but this application is made now to avoid any delay.  If confirmation, as expected, is received then it will be forwarded to the court.

This case is therefore a much more direct example of apparent bias than there was in the Pinochet case

(Pinochet, Re [1999] UKHL 52 (15 January 1999) 
URL: http://www.bailii.org/uk/cases/UKHL/1999/52.html
Cite as: [1999] UKHL 52)

where Lord Hoffman was simply a prominent supporter of an organisation which had expressed its opposition to General Pinochet.  Lord Hoffman had not made any statements, that anybody was aware of, that opposed General Pinochet himself or specifically called for his prosecution.

The European Law Institute’s 2018 activity report proudly boasts of the activities of “ELI members who silently work behind the scenes each day to inch the ELI’s unique organisation towards achieving its causes” says that the 1372 Fellows (i.e. including Lord Justice Hickinbottom):- “must be natural persons and must actively engage, by their professional, vocational or scholarly activities in European legal development.  They … participate in the Institute’s activities based on their personal and professional convictions and without regard to the interests of any clients or stakeholders.”  There is no known instance of anyone opposed to their state’s membership of the EU being admitted to Fellowship of the ELI.  The ELI is also an avowed supporter of the Facrtortame doctrine, which treats “Community Law” as federal and holds that even laws of constitutional importance in Member States must give way to Community Law. 

The ELI’s report also shows that the ELI receives a substantial proportion of its funding from the European Union. 

Furthermore it says that in order to join this “pan-European…membership based organisation” not only do you need to fill out an application and pay the fee but you also have to submit two references from amongst the current members and your application is “subject to Council’s approval”.  It is assumed this is on the basis that if you are not Europhile enough then your application will not be accepted to join the European Law Institute and that therefore the Learned Lord Justices’ pro EU and anti-Brexit political views are manifest.

The requirement for judges who have an apparent bias on issues raised in a court case to recuse themselves from dealing with it is of longstanding in English Law.  In addition in Article 6 of the European Convention of Human Rights there is the provision:-

“In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time by an … impartial tribunal.”

The tribunal cannot be “impartial” if the judge determining the matter is openly partial about key elements of the case before him as here.

Furthermore it is also submitted that it is wrong in principle for the court to make a finding without properly hearing the case that an Application is “Totally without Merit” where the Application is supported, not only by a professional solicitor, but also by professional Counsel and, in this case, also by very senior professional Senior Counsel.  It is an abuse of the questionable “Totally without Merit” bureaucratic device of blocking further consideration of a Judicial Review.  This may also be a breach of Article 6 of the European Convention of Human Rights of a right to a “fair and public hearing”.

In the premises both Mr Justice Spencer and Lord Justice Hickinbottom were wrong to make findings of “Totally without Merit”.

3.         Controversy with Claimant/Applicant/Appellant

Multi-culturalism is of course a Left-wing political ideology whose key objective is to undermine traditional society.  It and its proponents like Lord Justice Hickinbottom are at direct loggerheads with the English Democrats stance on multi-culturalism which is set out in their manifesto as follows:-

“3.16 England and Multi-Culturalism

3.16.1 It is a fact that during the past forty years people of many different cultures have come to live in England. Our country is in that sense a multi-cultural society. However, multi-Culturalism is an ideology which suggests that a mix of many cultures in one society is desirable and that it is the duty of government to actively encourage cultural diversity within the state. Further, it suggests that all cultures should be treated as equal. A logical extension of this is that all languages, histories and law codes should be treated equally. This is clearly impossible in a unified country. All ethnic groups should be free to promote their own culture and identity, but the public culture of England should be that of the indigenous English. The wearing in public of clothing designed to conceal one’s face is at variance with English culture and current security considerations. The European Court of Human Rights supports this view with its ruling ECHR 191 (2014).

This position is consistent with the rights of indigenous nations everywhere.”

Mr Justice Hickinbottom suggested his disapproval of the Claimant in his Order when he highlighted that the Claimant is a “political party”.

This is a case in which the Claimant sought judicial review of the decision by the Prime Minister, purportedly exercising the Prerogative powers of Her Majesty, to agree to an extension of the period before which the United Kingdom would withdraw from the European Union pursuant to Article 50 of the Treaty of European Union (‘A50’, ‘A50.1’, etc; ‘the TEU’).  The remedy sought was a declaration that no such Prerogative power existed and that the UK had, in consequence, withdrawn from the EU, in domestic, EU and international law, on 29.03.2019.

Consequently, any judge making any judicial decision that affects the outcome of this case would be responsible either: (a) by allowing the case to proceed, for an ultimate judicial determination that leads the United Kingdom to leave the European Union; or (b) by ending the claim (including by refusing permission to appeal to the Court of Appeal),  for allowing the UK to remain within the EU unless and until further steps are taken (or the effluxion of time without legislation, or a further extension of A50, on 31.10.2019). 

Moreover the purpose of a judge’s declaration that an application for permission to appeal is “Totally Without Merit” is to deny a claimant/applicant the right to an oral renewal of its permission application; as does a single judge of the Court of Appeal making the same declaration (which in this case would be final and un-appealable).

The Claimant is a political party in respect of which donors of more than £500 must be individuals on the electoral roll in the UK or bodies based in the UK (Political Parties, Elections and Referendums Act 2000, s 54) and the majority of whose members are resident in England and (it is reasonable to suppose) were electors eligible to vote in the referendum on membership of the European Union held on 23.6.2016 (‘the Referendum’).  The Claimant was publicly committed to the Leave campaign during the Referendum and has since continued to publicly campaign for the UK to leave the EU.  It also has a publicly expressed policy of support for the independence of England from the remainder of the United Kingdom, a policy advertised by its name.  Essentially the Appelant’s/Applicant’s political position is a logical extension of the process of balkanisation of the UK started by the then Labour Government’s devolution legislation in the late 1990s.   It also reflects the deep animosities created in England through the use of Welsh and Scottish votes to force membership of the EU onto England, which in turn suffered disproportionately from membership. 

4.         Public Controversy with Solicitor

Lord Justice Hickinbottom was formerly the Senior Liaison Judge for Diversity. His proposal to fast track representatives of multi-culturalist diversity client groups featured in the Law Society Gazette.  Here is the text of the article:-

“Judicial fast-track would boost diversity

Creating a judicial career fast-track for young lawyers could help improve diversity on the bench as they work their way up the judicial ladder, the most senior solicitor judge has told the Gazette.

But such a scheme would be just one of many entry points rather than an exclusive European-style career judiciary, Mr Justice Hickinbottom (pictured), recently appointed to the Court of Appeal, said.

This is one of a range of ideas being considered by senior judges, including developing a generic judicial skillset so applicants would be recruited for their judging abilities and then trained for specific roles.

Sir Ernest Ryder, senior president of tribunals, believes that would create a more objective selection system because ‘you aren’t just looking for someone who looks like you and looks like a good family judge. You are looking for a group of lawyers who satisfy the competencies we want from a judge – now how are we going to train them and where are we going to deploy them?’

Another driver for change is that fewer solicitors are applying successfully for court roles.

Ryder stressed: ‘One thing I am absolutely sure about is I want solicitors’ skills.’ And that means looking at ways of fast-tracking solicitors from part-time roles because ‘we know we can train someone to the appropriate level in a shorter time than it takes now’, he said.

Hickinbottom said that multiple entry points could speed up improvements in diversity. ‘We take judges from the top of the profession,’ he said. ‘But we could also take lawyers in as district or circuit judges in their twenties and support them up through the system. It happens in other jurisdictions and attracts a lot of women.’

However he recognised that those coming up through the ranks could be viewed differently and acknowledged it would require a residential judicial college.

He is not in favour of people becoming a full-time judge without doing a part-time role first. ‘That is dangerous. You can’t go back so you have to enjoy it,’ he said. ‘Most do, but, for those that don’t, it is hell.”

In response Robin Tilbrook, the solicitor who has conduct of this matter, and who is also the Chairman of the English Democrats, had the following letter published in the Law Society Gazette in which the then Mr Justice Hickinbottom’s comments were directly challenged.  Here is the text of the letter:-

“Dear Sir

Re: Judicial fast-track would boost diversity – 31st October 2016

I viewed your above story with great disquiet as it seems that this proposal from Mr Justice Hickinbottom seems somewhat symptomatic of the various questionable, not to say flaky “Reform” initiatives launched by various members of the Judiciary of the England and Wales jurisdiction.

I suspect that most other practitioners, who have a court based practice, will have noticed that, whilst many of the Judges that we experience are still of excellent quality that there is nevertheless an increasing proportion who are not of that quality. They are being appointed by the Judicial appointments system, which was politicised by Lord Irvine when he was Tony Blair’s Lord Chancellor to ensure that "no-one with reactionary views" could be appointed or promoted. 

With the utmost respect to the learned Mr Justice Hickinbottom, the focus of any public service ought to be on actually delivering a service to the public rather than tick-boxing “Diversity” quotas in a fashion reminiscent of the appointment system in the Soviet Union.”

As Lord Justice Hickinbottom, is a former solicitor, it is not unreasonable to suppose that the Judge may have read this criticism of his multi-culturalist agenda and have noted that Robin Tilbrook is an opponent.  In any event it was unwise with respect and inappropriate for a judge who had been in open conflict with the Applicant’s solicitor to be assigned to the case.  Judges should take care not to preside over the cases of those whom they have been in dispute, whether contractual, political or otherwise.  

5.         In the Premises

Lord Justice Hickinbottom’s decision should be set aside and the Application for Permission to Appeal reinstated for reconsideration to another Lord Justice of Appeal.

---

[1] For example, the recently concluded appeal of Leave.EU v the Electoral Commission (2019), Central London County Court (unreported) and the ongoing appeal of Vote Leave v the Electoral Commission.

[2] Although it should be noted that the findings of the Electoral Commission in the above cases were relied upon by the Claimant in Wilson v the Prime Minister R (Wilson) v [2019] EWCA Civ 304 in support of a judicial claim that sought to require HM Government to take particular steps because of illegalities found by the EC (and since under appeal).