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@Richard Peter Whitehurst 20 March 2018 17:00

In my opinion the court of appeal misapplied the test.

The judgement states that the maxim that justice must not only be done but be seen to be done from Sussex Justices is still important, and then applies the test in Porter v Magill. This test asks whether the fair-minded and informed observer, after considering the facts leading to the allegation of apparent bias, would consider that there is a possibility that the judge was biased. In this case, where the judge's daughter served a mini-pupillage for one side and given the private meetings and subsequent communications, the answer must be yes. I can't see how it could be otherwise.

Where I think the court of appeal erred is that after considering the allegations of apparent bias and rightly criticising the judge, they then strayed into whether the judge was actually biased. But the question was whether the bias was apparent, not actual, and the two concepts are different. So while the narrative of the judgement indicated apparent bias, the conclusion flowing from that narrative didn't address the question asked of the court of appeal. So, in this case I think most people will feel that justice wasn't seen to be done as things stand. One has to look at the allegations of apparent bias separately from the facts of the underlying case - it doesn't matter if a different judge would have reached the same decisions, what matters is that this judge was accused of having the appearance of bias (he even offered to recuse himself).

In terms of the situation you found yourself in, these are of course not situations where there is likely to be the same chance of apparent bias being inferred by the reasonable person, and I think there is some subjectivity as to the best course of action. I would say that a fair minded and informed person is unlikely to believe that a judge sitting with acquaintances to whom he has provided references or given career advice has the appearance of bias, although this is perhaps less likely if the judge had a close friendship or had employed or been instrumental in securing a position for someone. Broadly speaking, its best to consider how any conflict of interest looks and whether it could lead to a fair accusation of appearance of bias.

The case in point shows that if an offer is made to recuse oneself, it is best to do so if requested, and the judgement also shows that cost or putting off of work shouldn't be a factor in deciding on recusal related to apparent bias.