NATURAL JUSTICEApparent bias - judge's application for job with expert witness's firm withdrawn - whole tribunal disqualifiedIn re Medicaments and Related Classes of Goods (No 2): CA (Lord Phillips of Worth Matravers MR, Brooke and Robert Walker LJJ): 21 December 2000R, one of three judges in the Restrictive Practices Court hearing a case brought by the Director-General of Fair Trading against the applicants, applied for a job with an economic consultancy firm.

On realising that one of the directors of the firm was an expert witness for the Director-General she informed the parties and said that she had withdrawn her application and the firm no longer had any interest in her joining them.

The applicants applied (i) for R to recuse herself on the ground of apparent bias and (ii) for the whole court to recuse themselves on the ground that they were infected by R's apparent bias.

The court dismissed the applications.

The applicants appealed.Jonathan Sumption QC, Catherine Otton-Goulder QC and Margaret Gray (instructed by CMS Cameron McKenna) for the applicants.

Trevor Philipson QC, James Eadie, Jon Turner and Kassie Smith (instructed by the Treasury Solicitor) for theDirector-General.Held, allowing the appeal, that having regard to the jurisprudence of the European Court of Human Rights an adjustment of the test in R v Gough [1993] AC 646 was required; that in determining whether a judge should be disqualified on the ground of bias the reviewing court had to ascertain all the circumstances which had a bearing on the suggestion that the judge was biased and then consider whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the judge was biased; that the material circumstances would include any explanation given by the judge as to his knowledge or appreciation of those circumstances; that where such an explanation was accepted by the applicant for review it could be treated as accurate but otherwise the court had to decide, not whether the explanation should be accepted but whether the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced; and that, in the circumstances, all the members of the court would be disqualified.

(WLR)