Helow (AP) (Appellant) v. Secretary of State for the Home Department and Another (Respondents) (Scotland)

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.

30. The alternative argument for the appellant was that there was a real possibility of bias by reason of Lady Cosgrove having been influenced by the views expressed in the articles and pronouncements founded on by the appellant?s counsel. This argument runs into the same difficulty in the lack of an objective basis for the assumption that Lady Cosgrove would have read and been receptive to these views. That assumption also involves the inherent unlikelihood that Lady Cosgrove,despite her training and experience as a judge, would not have been able to put aside what she had read.

38. ? 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.

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.

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 nondisclosure 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.