Planning – application to appeal against the decision of the Court
following a third party appeal.
[2012]JRC095
Royal Court
(Samedi)
11 May 2012
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Before :
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W. J. Bailhache, Q.C., Deputy Bailiff, and
Jurats Le Breton and Kerley.
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Between
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Alfred E Le Boutillier
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Appellant
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And
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Minister for Planning and Environment
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Respondent
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And
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Matthew Cosgrove
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Applicant
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Mr Le Boutillier appeared in person.
H. Sharp, HM Solicitor General appeared for
the Minister.
Mr Cosgrove appeared in person.
judgment
the deputy bailiff:
1.
On 20th December 2011
the Court, differently constituted, sat to consider the Appellant’s third
party appeal under the modified procedure under Article 114 of the Planning
and Building (Jersey) Law 2002. The Applicant is the owner of the land
which was the subject of the application for development, granted by the
Minister, in respect of which the third party appeal was brought.
2.
The Court
heard argument on 20th December and reserved its decision. Judgment has not been given. Amongst the papers put before the Court
were the objections which had been lodged following publication of not only the
successful application, but also a previous application in respect of the same
site, which had been unsuccessful.
The papers in the Court file included a representation from the
Development Applications Committee of the National Trust for Jersey,
objecting to the development proposed unsuccessfully in 2010. This was signed by Mr Michael Touzel,
Chairman of that Committee. The
Court file also included a letter signed by the Chairman of the Environment
Section of the Société Jersiaise, objecting to the second
(successful) application in 2011.
The Société Jersiaise had also objected to the
unsuccessful application in 2010.
3.
Neither
the National Trust for Jersey nor the Société Jersiaise are
parties to the present appeal, and their representations objecting to the
proposals were before the Court for completeness as part of the package of
relevant documents related to the planning application now the subject of the
third party appeal. Similarly,
neither the National Trust for Jersey nor the
Société Jersiaise made any further statements or presented any
further evidence to the Court. The
problem, if it is one, arises simply as a result of the material which we have
described. Both letters focused
their objections on the fact that the proposal was for development or
enlargement of buildings now on the site which is in a zone of outstanding
character, and forms part of the extended Green Zone under the Draft Island
Plan 2011, subsequently approved by the States. The letter from the National Trust for Jersey, in relation to the 2010 application, expressed
strong objections to any further development or enlargement of the buildings
now on the site.
4.
On
reviewing this material the members of the Court, we regret belatedly, focused
upon a matter which we felt obliged to draw to the attention of the
parties. I am a member of the
National Trust in England,
which is I believe an associated organisation of the National Trust for Jersey, and I am also a member of the
Société Jersiaise.
Jurat Kerley is a member of both the Société Jersiaise and
the National Trust for Jersey. Neither I nor Jurat Kerley have or have
ever had an executive position in either organisation, and have not expressed
any public views as to the objects of either association. Jurat Olsen is not a member of either
organisation.
5.
There are
two other potential issues. Jurat
Olsen’s wife is a member of the English National Trust, but not of the
National Trust for Jersey. Jurat Kerley’s wife is not only a
member of the National Trust for Jersey but
has also been on the general council for that organisation, although not on the
executive committee. She does
currently chair the committee of the National Trust which considers planning
applications, and has replaced Mr Michael Touzel who signed the letter to which
I have earlier referred. Jurat
Kerley has confirmed that he has not discussed this appeal with his wife. We do not know if she was on the
committee at the time Mr Touzel sent in his letter of objection, but as we made
clear to the parties, we have proceeded on the assumption that she was.
6.
On 13th
January, I asked my secretary to inform the parties of these facts to identify
whether any objection was taken to the constitution of the Court. The Court’s preliminary view was
that there was no bias or perception of bias but it was emphasised that if
there were objections, a date would be fixed so that argument could take place
on that matter and that the view expressed was a preliminary view only. The Applicant has objected, and hence
this hearing was fixed. Normally it
would have been fixed with the original Court. Unfortunately however the coincidence of
leave and other Court commitments has meant that to reconstitute the original
Court for the purpose of hearing these objections would be very much delayed
and accordingly I have asked Jurat Le Breton, a senior Jurat, to sit with Jurat
Kerley on this hearing. For the
avoidance of doubt, it should be added that Jurat Le Breton is also a member of
the Société Jersiaise and of the National Trust for Jersey. There
are no Jurats available today who are not in a similar position. The parties did not object to Jurat Le
Breton’s participation.
7.
Essentially
the position today is this. The
Applicant maintains some of his objections. He is no longer anxious about my
participation or that of Jurat Olsen, but he is anxious about Jurat
Kerley. In his view the connections
of Jurat Kerley which I have mentioned are such that he cannot be sure he would
receive a fair hearing of the third party appeal. He emphasised that he wished to make no
attack on the integrity of the Court and did not assert there was any actual
bias against him but he did assert that the constitution of the Court would
fail to meet the requirements for an impartial tribunal as there would be a
perception of bias. His inherent
concerns were, he said, well expressed by the Solicitor General in the analysis
in his skeleton argument.
8.
The
Appellant does not object to the constitution of the Court in December. The Solicitor General, for the Minister,
contended that there was no objection that could be properly maintained to my
presiding over the Court but there could be an objection to Jurat Kerley
sitting as a member of the tribunal as a result of the connection which his
wife has with the National Trust for Jersey. However the Minister did not object to
the Jurat sitting on the appeal.
9.
I now
therefore turn to the challenge of the Applicant and consider whether the Court
should recuse itself from this appeal.
10. The starting point is Article 6 of the European
Convention on Human Rights. The
relevant provisions are as follows:-
“(1) In the determination of his civil rights and
obligations … everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by
law.”
11. The Royal Court of Jersey has for some time
applied the same tests to this question as have been applied in the Courts of
England and Wales. There, as is set out clearly in the
judgments of the House of Lords in R –v- Bow Street Metropolitan
Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) (1999) 1
All ER 577, the fundamental principle is that a man may not be judge in his own
cause. That principle is applied in
two ways – it is applied literally if in fact the judge is a party to the
litigation or has a financial or proprietary interest in its outcome. It is a principle which also applies
where the judge does not have a financial interest in the outcome and is not
actually a party, but in some other way his conduct or behaviour gives rise to
a suspicion that he is not impartial.
It is a doctrine of very long standing. In short hand terms, it is sometimes
described as resulting in a two part test – was the judge actually
biased, or was there an appearance of bias. In the Pinochet case, the decision
proceeded on the test in R –v- Gough (1993) 2 All ER 724 –
is there in the view of the Court a real danger that the judge was biased? The Convention test is framed in a
slightly different way – do the events in question give rise to a
reasonable apprehension or suspicion on the part of a fair minded and informed
member of the public that the judge was not impartial? This latter test has been applied in
decisions in Canada,
Australia
and New Zealand. I am not sure whether there is any
substantive difference between the two tests but the convention test is
certainly the one which has more latterly been applied in the Royal Court –
see Syvret –v- Chief Minister and Others [2011] JRC 116 - and it is the test we apply today.
12. Both I and Jurat Kerley consider that we are
not in any way biased in relation to the matters which call for decision in
this case. I add this for
completeness notwithstanding that actual bias is not asserted. We therefore only approach the matter
insofar as concerns the contention that there is a perception of bias –
namely whether the fair minded and informed observer would consider that there
was a real possibility that the tribunal was biased.
13. We think there is a good summary of the fair
minded and informed observer in the judgment of Lord Hope of Craighead in Helow
–v- Home Secretary [2008] 1 WLR 2416 at page 2418 where he said
this:-
“(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
… 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 seen to be, unbiased. She knows that judges, like anyone 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.
(3) Then
there is the attribute that the observer is “informed”. It makes the point that, before she
takes a balanced approach to any information she is given, she will take the
trouble to inform herself on all matters that are relevant. She is the sort of person who takes the
trouble to read the text of an article as well as the headlines. She is able to put whatever she has read
or seen into its overall social, political or geographical context. She is fair-minded, so she will
appreciate that the context forms an important part of the material which she
must consider before passing judgment.”
14. This passage was cited with approval in Syvret
–v- Chief Minister [Supra].
15. The case of Helow arose out of an
immigration appeal by a Palestinian refugee who had been highly critical of the
Israeli approach to Palestine. It came before a judge of the Court of
Session in Scotland
who subscribed to a journal, some issues of which contained articles expressing
strong pro Israeli views. The House
of Lords accepted that if the judge had shared those views, she would be have
been bound to recuse herself. There
was however no reason to believe that she did. Reliance was placed on the fact that the
judge had taken the judicial oath; on the fact that the judge could be assumed,
by virtue of the office for which we had been selected, to be intelligent and
well able to form her own views about anything she read; on the fact that she
could be assumed to be capable of detaching her own mind from things that she
read with which she did not agree.
The impartial observer would want to know whether the judge had
expressed any views about the content of that material and in the absence of
evidence of that kind, there was no basis upon which the observer would
conclude that there was a reasonable possibility that the judge was biased.
16. Lord Mance considered that the judicial oath
was perhaps more a symbol than of itself a guarantee of the impartiality that a
professional judge is by training and experience expected to practice and
display. Nonetheless a
judge’s professional status and experience was a factor which the fair
minded observer would have in mind when forming his or her objective judgment
as to the risk of bias. Lord Mance
referred with approval to the case of R –v- S (RD) [1997] 3 SCR 484 where at paragraph 119 it was said:-
“The requirement for
neutrality does not require judges to discount the very life experiences may so
well qualify them to preside over disputes. It has been observed that the duty to be
impartial “does not mean that a judge does not, or cannot bring to the
bench many existing sympathies, antipathies or attitudes. There is no human being who is not the
product of every social experience, every process of education and every human
contact with those with whom we share the planet. Indeed, even it if were possible, a
judge free of this heritage of past experience would probably lack the very
qualities of humanity required of a judge.
Rather, the wisdom required of a judge is to recognise, consciously allow
for, and to question, all the baggage of past attitudes and sympathies that
fellow citizens are free to carry, untested, to the grave. True impartiality does not require that
the judge had no sympathies or opinions; it requires that the judge nevertheless
be free to entertain and act upon different points of view with an open
mind”.
17. In Helow –v- Home Secretary
(Supra) Lord Rodger of Earlsferry pointed out that even lay people acting as
jurors are expected to be able to put aside any prejudices they may have. Jurors are obliged to swear an oath to
decide the matter impartially and of course they have the advantage of a judge
to assist them with how they perform their duty.
18. In this case, the position of Jurat is
somewhere between that of a juror and that of a professional judge. In my judgment, it is closer to the
position of professional judge, in the sense that the Jurats sit regularly,
more than a lay magistrate in the United Kingdom, and probably sitting in court
for in excess of 50 days a year – and have that experience year on year
during their appointment.
Experienced Jurats hear the same directions many times from the
professional judge as to how they should go about their business of assessing
the facts in a civil case or forming a judgment as to what is or is not
reasonable. While we must and
should distinguish between the position of the professional judge and that of
the Jurats, the fact is that the Jurats are elected by an electoral college on
the basis of their ability and integrity and are therefore trusted by that
college to be able to perform the duties which the office of Jurat
carries. In our judgment, the
informed and fair minded observer would have that context very much in mind
when considering the facts of any particular case.
Membership
19. It is in our judgment well established in the
cases to which we have referred that mere membership of an organisation would
be an insufficient basis upon which the informed and fair minded observer would
conclude that there was a real possibility that the tribunal was biased. The informed and fair minded observer
would assume that as a member of the organisation or association, the judge
received copies of any journal or other publications which the organisation or
association put out to its members.
It is obvious that members of organisations do not necessarily agree
with everything which is contained in the organisation’s journals or
periodicals, which frequently reflect the expression of opinion by the
individual writer, and not even the organisation itself, or on other occasions reflect
the views of the executive committee or general council of that
organisation.
20. For these reasons, mere membership of the
Société Jersiaise or the National Trust for Jersey,
and certainly the National Trust for England is an insufficient basis
for asserting that the constitution of the Court fails for that reason the test
on perceptions of bias. There would
need to be something far more positive to suggest that such periodicals or
objects were endorsed by the member of the tribunal for such an argument to get
off the ground.
21. Similarly, in our view the alternative argument
that membership of the organisation might lead the member of the tribunal to be
unduly receptive to the views of the organisation requires one to assume that
the tribunal member would put aside the training and experience as a judge or
Jurat and not apply a judicial approach to what was being said or what had been
read. We reject that
contention. Accordingly we reach
the firm view that mere membership of the Société Jersiaise and/or
the National Trust for Jersey did not
disqualify either me or Jurat Kerley from sitting on this appeal.
22. Although this is not critical to the decision
which we have reached, we think it is also right to reiterate the words of
Southwell J A in States Greffier –v- Les Pas Holdings Limited
[1998] JLR 196 at page 203.
Commenting on the suggestion of bias on the part of the Deputy Bailiff
in that case, Southwell J A said this:-
“Having regard to the written
evidence which this court has seen, I think it right to make these observations
of general import on the developing habit of making récusation
applications:
(1) Those who live and work in Jersey have to accept that the administration of justice
depends to a great extent on the two senior judges, the Bailiff and the Deputy
Bailiff;
(2) No application for
récusation should be made without strong grounds to support it, and no
such application should be granted unless such strong grounds are clearly
established.
(3) Included in the affidavits
filed on behalf of Les Pas were allegations that members of the Court shook
their heads in disagreement when things said by Advocate Falle, and nodded
their heads in agreement with things said by the Solicitor General. It is entirely normal, particularly for
a non-lawyer Jurat, to indicate by movements of the head whether a point is or
is not considered to be a good one.
That the application for récusation was in part based on such a
frivolous ground is to be regretted.”
23. We emphasise that the Applicant has not made
any such suggestion that the Jurats showed bias by movements of the head and we
do not include this reference by way of any express or implied criticism of his
objections. The passage is repeated
merely as an emphasis as to the way in which the Royal Court should approach
the issue of perceptions of bias – the legal tests have to be applied,
but some reliance can be placed on the fact that in a small jurisdiction of
this kind judges whether professional or lay are acutely aware of the need to
be impartial and to reach conclusions based on the evidence, and indeed to put
any baggage which they may carry at the door of the court and leave it there,
before embarking on the judicial process.
24. We now turn to the connection which Jurat
Kerley has through his wife’s chairmanship of the National Trust for Jersey’s applications panel. For the Minister, the Solicitor General
contends that the reasonable, informed and fair minded observer would apprehend
a real risk of bias on the part of Jurat Kerley because his wife would be
regarded as having an interest in the outcome in the sense that she would
represent the Applications Panel of the National Trust. Reliance was placed on the comment by
Commissioner Sumption in Syvret –v- Chief Minister and Others
(Supra) that “loyalty to individuals
is, or at least might reasonably appear to be more insidious”.
25. Commissioner Sumption also went on to say this,
at paragraph 35 of his judgment:-
“However it is in my
judgment… necessary to identify what it is that might lead the judge to
decide the case otherwise than on its merits and that there must be a logical
connection between that matter and his potential deviation from deciding the
case on its merits.”
26. The
Solicitor General pointed to the case of In re L (Minors) (Care
Proceedings: Solicitors) 2001 1
WLR 100. In that case, the course
of care proceedings involved children of related families. The mother of one of the children became
aware that the solicitor with conduct of the care proceedings on behalf of the
local authority was co-habiting with the solicitor acting for the other parents
with whom the mother was not on good terms. Both solicitors resisted the
mother’s application that the two solicitors should not personally retain
conduct of the proceedings. The
Court held that it would declare that the local authority’s solicitor
should no longer act for the local authority in the proceedings unless the
local authority decided to transfer conduct of the case away from the solicitor
concerned. The reason given was
that the power of the local authority in care proceedings placed a premium on
the importance that they should be seen to act impartially and that intimate
co-habitation was different in kind from professional association or social
friendship and could give rise to a reasonable lay apprehension of bias. The Solicitor General therefore contends
that if the informed observer would be sufficiently concerned that there would
not be a fair hearing where mere advocates co-habited, the informed observer
would certainly consider there to be a reasonable possibility of bias if one of
the Jurats was the spouse or partner of a person whose objections to the
planning application would have to be considered in the course of the judicial
consideration of the appeal. The
link described by Commissioner Sumption as necessary to be established was that
the Applications Panel asserted in its objections exactly that which the Court
had to determine in deciding the appeal.
27. Against that view, in this case, it seems to us
that one can point to these factors:-
(i)
The
National Trust for Jersey is not a party to
this appeal.
(ii) The National Trust for Jersey
in fact has expressed no view about the present application. It only expressed a view about the
application in 2010 which was unsuccessful and we do not know whether the
National Trust Applications Panel would or would not have expressed the same
view about the matter which is now the subject of appeal.
(iii) Jurat Kerley’s wife was not the Chairman
of the Applications Panel which did sit to consider the unsuccessful
application in 2010, and we do not know what view she had or might have had
about that application.
Conclusion
28. When the Court retired to consider these
matters, Jurat Kerley said immediately that he no longer felt comfortable in
sitting on this appeal. That view
was expressed not because he personally felt in any way biased but because he
felt it was essential that all the parties to the proceedings felt they had had
a fair hearing. His approach is a
testament to the integrity which the Jurats have to have and do have –
but I have made it plain that we do not apply the subjective test of what is in
the minds of the litigants but the objective test of what the informed and
impartial objector would make of it.
Of course there are circumstances when the personal embarrassment of a
judge is such that he must recuse himself because he cannot do justice but that
is qualitatively different from his embarrassment that the litigant does not feel
he will obtain justice. The latter
is not a reason for recusal.
29. In our judgment, this is a close decision. The factors set out in paragraph 27 are
objectively strong reasons why the informed and impartial observer could reach
the conclusion that there was no real possibility of bias – because Jurat
Kerley could not know if his wife had been present when the 2010 application
was considered, nor, if she had been, whether she agreed with the objections
generally or with the robust terms of the letter signed by the then Chairman in
particular. That being so, and
recognising too that spouses do not always agree about everything anyway, the
impartial observer might well conclude there was no reason why the Jurat should
not sit.
30. However, by a slender margin we have reached
the view that the informed and fair minded observer would be troubled by the
fact that, even though it related to an earlier application, the objections of
the National Trust for Jersey were expressed in relation to any further development
of the Applicant’s property, which was also essentially the
Appellant’s position, and the Court would have to consider that issue in
order to reach its own view of the application, as the law requires, before
going on to consider whether the Minister’s decision was
unreasonable. Accordingly we think
the informed and fair minded observer might conclude there was a possibility of
bias which ought not to be ignored and we accordingly have ordered that the
challenge of the Applicant succeeds and the appeal will be reheard before a
differently constituted court.
Authorities
Planning and Building (Jersey) Law 2002.
European Convention on Human Rights.
R –v- Bow Street Metropolitan
Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) (1999) 1 All
ER 577.
R –v- Gough (1993) 2 All ER
724.
Syvret
–v- Chief Minister and Others [2011] JRC
116.
Helow –v- Home
Secretary [2008] 1 WLR 2416.
R –v- S (RD) [1997] 3 SCR 484.
States
Greffier –v- Les Pas Holdings Limited [1998] JLR 196.
In re L (Minors) (Care Proceedings: Sol icitors) 2001 1 WLR 100.