Thanks to Judge Wayne Gorman, we have a little more insight into perceived judicial bias. It is a difficult issue for any judge. We like to think of ourselves as fair…and so even though recusal is an option, there is a tendency either not to recuse and or to become defensive. Sitting in judgment of another judge’s decision not to recuse and to insist on presiding is not easy either.
In Mitchell v. Georges,  UKPC 43, December 18, 2014, the applicant successfully appealed to the Judicial Committee of the Privy Council (the Board) obtaining an order that the Commissioner (Georges, a retired High Court Judge) of a Commission of Inquiry “should take no further part in the Commission” because of a reasonable apprehension of bias.
Though this decision involves the application of the reasonable apprehension of bias test to an inquiry, the Board adopts the same test (“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”) that Canadian trial judges utilize when considering such applications. In addition, and as will be seen, the key issue in this case involved an interim report prepared by the Commission of Inquiry. Thus, the reasoning of the Board may be useful to trial judges in weighing their language in the context of pre-trial and mid-trial rulings.
In 2003, the government of Saint Vincent and the Grenadines set up an inquiry to consider a failed development project. At the time of the project the applicant (Mitchell) held the positions of finance minister and Prime Minister.
The Inquiry commenced and indicated to Mitchell that it intended to call him as a witness. However, prior to the interim report being filed, he had not testified.
In the interim report certain comments were made concerning Mitchell’s involvement in and knowledge of the circumstances of the project (including possible fraud). The Board noted, at paragraph 41, that “the Commissioner’s interim report was replete, as the judge noted, with strong and colourful language” and “that it was true that the Commissioner used the decisive language of a concluded finding.”
THE BOARD’S RULING
The Board indicated, at paragraph 33, that it “has reached the conclusion that, contrary to the conclusions of the courts below, the Interim Report was expressed in such terms that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the respondent was biased such that he would not approach the remainder of the Inquiry with an open mind or, put another way, that he would not conduct an impartial Inquiry, so far as the conduct of the appellant is concerned.”
The Board concluded as follows (at paragraphs 44 and 45):
The extracts from the Interim Report set out above strongly support the conclusion that, having regard to the context and all the surrounding circumstances, the fair-minded observer would conclude that there is a real possibility that the respondent had made up his mind by the date of the Interim Report that the appellant was at the heart of the wrongdoing which led to the Project and its collapse and would not be willing to change his mind, so that his final report would not be impartial.
In these circumstances the Board will humbly advise Her Majesty that the appeal should be allowed. The parties should make written submissions on the appropriate form of order and on costs within 21 days of this judgment being handed down. The provisional view of the Board is that, in addition to an order that the appeal be allowed, the only other order which it would be appropriate to make (apart from costs) is a direction that the respondent should take no further part in the Commission. As to costs, it is the provisional view of the Board that the respondent should pay the appellant’s costs before the Board and in the courts below.