Disciplinary panel members must avoid any appearence of bias or of being involved in judging their own case. Governors of organisations should not be members of disciplinary panels.

An organisation should not have a financial interest in a successful prosecution of a member. The CA in allowing the appeal noted that the ILEX panel had awarded the exact amount of fines requested by the prosecution against alleged cheats in exams.

Kaur, R (on the application of) v Institute of Legal Executives Appeal Tribunal & Anor [2011] EWCA Civ 1168

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In Kaur, R (on the application of) v Institute of Legal Executives Appeal Tribunal & Anor (on the application of Kaur) v (1) The Institute Of Legal Executives Appeal Tribunal (2) The Institute of Legal Executives, the Court of Appeal has quashed by way of Judicial Review on appeal decisions of an ILEX Disciplinary Tribunal and Appeal Tribunal.

ILEX Council members (and by extension those of other organisations)are thereby disqualified from participating in disciplinary hearings of ILEX members in order to avoid the appearence of bias or judging their own case.

Allegations had been made against a student member of ILEX of bringing ILEX into disrepute (through alleged cheating in an exam) and an ILEX council member participated in the ILEX Disciplinary Tribunal that upheld an allegation and rejected an appeal.

The Court of Appeal agreed with this distinguished between a situation where a disciplinary panel member belongs to the governance of a body such as here with ILEX where the council members are company directors and where membership does not involve this.

Rix LJ united ideas of no one judging their own case with apparent bias (Pinochet No 2 and Porter v Magill) where judges must be recused when the possibility exists that a tribunal may be seen to be biased.

The Court of Appeal was composed of LORD JUSTICE RIX, LORD JUSTICE SULLIVAN and LADY JUSTICE BLACK

The following excerpts from the judgment should help those interested in delving deeper into the judgment.

"The leading cases concerned with apparent bias and its ancillary doctrine that no one must be a judge in his own cause (nemo debet esse judex in propria causa) are too well known to need extensive revisiting in this judgment. I would merely seek as briefly as possible to lay the ground by referring to the essence of them.

"No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern; but my Lords, it is of the last importance that the maxim that no man is to be judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest." Therefore the decision of the House of Lords in Pinochet No 1 [2000] 1 AC 61 was set aside.

Lord Browne-Wilkinson said (at 135): "Can it make a difference that, instead of being a direct member of A.I., Lord Hoffmann is a director of A.I.C.L., that is of a company which is wholly controlled by A.I. and is carrying on much of its work? Surely not. The substance of the matter is that A.I., A.I.L. and A.I.C.L. are all various parts of an entity or movement working in different fields towards the same goals. If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart C.J.'s famous dictum is to be observed: it is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done:" see Rex v. Sussex Justices, Ex parte McCarthy [1924] 1 K.B. 256, 259.

Lord Goff of Chieveley said (at 139):- "It follows that A.I., A.I.L and A.I.C.L. can together be described as being, in practical terms, one organisation, of which A.I.C.L. forms part. The effect for present purposes is that Lord Hoffmann, as chairperson of one member of that organisation, A.I.C.L., is so closely associated with another member of that organisation, A.I., that he can properly be said to have an interest in the outcome of proceedings to which A.I. has become party… It is important to observe that this conclusion is, in my opinion, in no way dependent on Lord Hoffmann personally holding any view, or having any objective, regarding the question whether Senator Pinochet should be extradicted, nor is it dependent on any bias or apparent bias on his part…"

"In Porter v. Magill [2001] UKHL 67, [2002] 2 AC 357 the modern law of apparent bias was definitively stated in the speech of Lord Hope of Craighead, building on R v. Gough [1993] AC 646 and In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 (CA): "The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased" (at [103]). There is a jurisprudential issue as to whether the Dimes/Pinochet (No 2) doctrine is distinct from or allied to the doctrine of apparent bias. One can perhaps see a reconciliation of the two in the illuminating observations of Lord Bingham of Cornhill in Davidson v. Scottish Ministers [2004] UKHL 34, [2004] HRLR 34 at [6]-[7]: Lord Bingham restated Lord Hope's definition from Porter v. Magill as the correct formulation of the correct test.

"Thus in Sadler v. General Medical Council [2003] UKPC 59, [2003] 1 WLR 2259 the Privy Council considered the role of members of the GMC sitting as panel members of its Committee on Professional Performance (the "CPP"). Meerabux v. The Attorney General of Belize [2005] 2 AC 513 was another decision of the Privy Council, this time concerned with a judge of the supreme court of Belize who had been removed from office by the Governor-General on the advice of the Belize Advisory Council (BAC) following complaints of misbehaviour filed by the local Bar Association. There were proceedings before the BAC. The chairman of the BAC was a member of the Bar Association, and this led to a submission that he was disqualified by the doctrines of either Pinochet No 2 or Porter v. Magill. The submission failed. The judgment of the Privy Council was again delivered by Lord Hope. He pointed out that the chairman was only a member of the Bar Association because as an attorney-at-law he had to be: he was not a member of the Bar Committee on whose initiative the complaints had been brought, nor had he attended any meeting at which the complaints were discussed (at [23]). Moreover the Constitution of Belize required the BAC chairman to be a member of the Bar Association, a "powerful" and "conclusive" indication that in the context mere membership of the Association was not a sufficient ground of disqualification.

"The rule that no one may be a judge in his own cause extends to cases where it can be demonstrated that he has a personal or pecuniary interest in the outcome, however small: Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759; Sellar v Highland Railway Co, 1919 SC (HL) 19. The extension of the rule was taken one step further when Lord Hoffmann was held to have been disqualified automatically by reason of his directorship of a charitable company. That company was not a party to the appeal, nor had it done anything to associate itself with those proceedings. But the company of which he was a director was controlled by Amnesty International, which was a party and which was actively seeking to promote the case for the extradition and trial of Senator Pinochet on charges of torture. Lord Browne-Wilkinson said that there was no room for fine distinctions in this area of the law if the absolute impartiality of the judiciary was to be maintained: p 135E-F."

"Professor David Feldman has observed, the normal approach to automatic disqualification is that mere membership of an association by which proceedings are brought does not disqualify, but active involvement in the institution of the particular proceedings does: English Public aw (2004), para 15-76, citing Leeson v Council of Medical Education and Registration (1889) 43 Ch D 366 where mere membership of the committee of the Medical Defence Union was held not to be sufficient to disqualify and Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 where mere ex officio membership of the committee of the Medical Defence Union too was held to be insufficient. The same contrast between active involvement in the affairs of an association and mere membership is drawn by Shetreet, Judges on Trial (1976), p 310. Their Lordships are of the opinion that the principle of automatic disqualification does not apply in this case."

"In the present case, there is no suggestion that Mr Hanning or Ms Gordon-Nicholls were actively involved in the prosecution of Mrs Kaur (but see below on the separate question of the accreditation of the law college involved): but both of them, and a fortiori the vice-president Miss Gordon-Nicholls, were actively involved in the total governance of ILEX and thus were responsible for its regulatory policies.

"In Sadighi v. The General Dental Council [2009] EWHC 1278 (Admin) (unreported, 5 May 2009, Plender J) the dentist had been convicted by the Council's professional conduct committee of dishonesty in forging the records of treatment of his patient. The committee tribunal had been chaired by Dr Leitch, who ending five years previously had served for two years as an elected member of the Council. It was submitted that the doctrine of apparent bias applied, but the submission failed. I do not find that surprising, seeing the merely historic nature of Dr Leitch's involvement, Sadighi is therefore not of much assistance in this case.

"Finally, R v. LL [2011] EWCA Crim 65 is a recent authority from the context of criminal trials which raises similar questions relating to jurors, albeit there are special considerations applicable there by reason of legislation regarding jury eligibility and such like. The judgment of the CACD was given by Lord Judge CJ. It came to light that at the trial of the appellant one juror was a current employee of the Crown Prosecution Service (CPS) in general administrative duties, another was a serving police officer in an administrative and non-operational role, and a third was a former police officer who had retired in 2003. None of them had had any involvement in the case. The issue was whether the appellant had been tried by an impartial and independent tribunal. No complaint was made about the two police officers, in accordance with established principles in this context. The leading case concerning the application of the doctrines of apparent bias in this context is R v. Abdroikov; R v. Green; R v. Williamson [2007] UKHL 37, [2007] 1 WLR 2679, [2008] 1 Cr App R 21. Lord Judge summarised the reasoning of the majority in that case in the following way:

"[27]…Lord Bingham of Cornhill doubted whether it was ever in contemplation that "employed Crown prosecutors would sit as jurors in prosecutions brought by their own authority". In this sentence he was directly addressing the problem of those employed to prosecute, rather than all employees of the Crown Prosecution Service. However, he continued:

"It is my opinion clear that justice is not seen to be done if one discharging the very important neutral role of juror is a full-time salaried, long-serving employee of the prosecutor." This observation demonstrates that his concerns extended beyond those who act as advocates to prosecute in court, but that they did not necessarily extend to every CPS employee.

These authorities to my mind illustrate the distinctions which may have to be made. Participation in a prosecutorial capacity, even if not in the case in question, will disqualify or else raise concern in the mind of the fair-minded observer about the appearance of impartial justice. Even an employee of a prosecuting agency may fall within this disqualification or concern, even though not employed in a prosecutorial capacity, provided the employment is significant enough in length or importance or location. However, that would not apply to every employee. Similarly, mere membership of a prosecuting association will not disqualify, where there is no involvement in the case in question, but a more senior role in governance may possibly do so, even though again there has been no specific involvement in the case in question,....

"On behalf of Mrs Kaur it was submitted that council members and thus directors and therefore the vice-president of ILEX were disqualified from sitting on either the DT or the IAT which had heard Mrs Kaur's disciplinary proceedings: whether under the doctrine of automatic disqualification or under the doctrine of apparent bias. Each director of ILEX had as such an interest, indeed a duty, to promote and ensure compliance with professional standards by prosecuting breaches. When council members and the vice-president sat on Mrs Kaur's disciplinary or appeal hearings they were not acting within an insulated environment but were inevitably bringing to their task their own interest as council members and directors, or as the case may be as the vice-president, in regulation and the prosecution of disciplinary charges. It was unrealistic to regard such prosecution as merely a search after truth, wherever that might lead: as the judgment in P had recognised at para 89 (cited at para 21 hereof above). Alternatively, the fair-minded and informed observer would consider that there was a real possibility that the tribunal was biased."

.....unlike the medical case considered in Sadler, the charge against Mrs Kaur was being engaged in conduct "unbefitting to ILEX or likely to bring ILEX into disrepute", which engaged ILEX's own interest in its reputation. A further consideration was that the tribunals had power to fine or charge in costs up to £3,000 and the DT had in fact awarded costs against each of the five students convicted of £1,700. That was to be paid to ILEX, and demonstrated that ILEX had a financial interest in the proceedings.

"it may be possible to see the two doctrines which remain in play in this appeal as two strands of a single over-arching requirement: that judges should not sit or should face recusal or disqualification where there is a real possibility on the objective appearances of things, assessed by the fair-minded and informed observer (a role which ultimately, when these matters are challenged, is performed by the court), that the tribunal could be biased. On that basis the two doctrines might be analytically reconciled by regarding the "automatic disqualification" test as dealing with cases where the personal interest of the judge concerned, if judged sufficient on the basis of appearances to raise the real possibility of preventing the judge bringing an objective judgment to bear, is deemed to raise a case of apparent bias. I do not think that Lord Bingham regarded the automatic disqualification rule as necessarily technical (although no doubt it could be applied in a formalistic way), but be that as it may Lord Hope showed the way to avoid formalism in Meerabux, and I note that Lord Bingham sought to avoid technicality by qualifying the disabling personal interest by the phrase "which is not negligible".

"Therefore I do not see the present case as one where it is necessary to choose between the doctrines. Applying either test, I would conclude that Miss Gordon-Nicholls, the vice-president of ILEX, was disqualified by her leading role in ILEX, and thus her inevitable interest in ILEX's policy of disciplinary regulation, from sitting on a disciplinary or appeal tribunal. Subject to the necessary hesitation that the different opinion of Foskett J engenders, I have by the end of the helpful oral argument in this case really no doubt that the fair-minded and informed observer ought to have and would have concluded that there was here a real possibility of bias. Or to be put it in Lord Bingham's terms, he or she would be concerned that there was here the appearance and perception and indeed reality that through Miss Gordon-Nicholls the IAT was not free of an influence which could prevent the bringing of an objective judgment to bear. I note in particular that in Meerabux Lord Hope cited with approval Shetreet's distinction between "active involvement in the affairs of the association and mere membership" (at [24], cited above).

"Moreover, it is clear from the examination of the practices of the various professional organisations undertaken in P that even in 2000, that is to say well before the Legal Services Act 2007 and its consequences, governing members of those organisations were for the most part barred either by rule or at least practice, but as it seems to me mainly by rule, from finding themselves on regulatory panels. This was a theme underlying the decision in P and in itself assisted that tribunal to come to its separate conclusion, on the particular facts of that case, that a panel member who had had any involvement in investigation or screening, whether or not of the particular case in question, was disqualified.

"It seems to me that these general considerations are supported and emphasised by some special features of this case. Thus the fact that the charge against Mrs Kaur was of "conduct unbefitting to ILEX or likely to bring ILEX into disrepute" underlines the interest of ILEX and its governance in upholding its professional standards. Moreover, although I accept that it would not be right to draw any inferences not dealt with on the evidence from the DT's call on "ILEX senior management" to look into the possible complicity of the law college, nevertheless that passage in its decision highlights how difficult it can be to insulate matters of regulation and representative governance once council members or the vice-president are required to sit as panel members of the disciplinary proceedings. As for the implications of costs and fines up to £3,000, it may be that this is a negligible matter in an organisation of 22,000 members: nevertheless it again demonstrates the importance of proper separation of the disciplinary panels from those concerned with the overall governance of the organisation. It may be noted that the costs award of £8,500 (£1,700 times 5) was exactly the figure requested by the prosecution.

The appeal was allowed with the orders of both the DT and the IAT quashed.

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