… the test to be applied to a decision on the adjournment of proceedings is not whether it lay within the broad band of judicial discretion, but whether, in the judgment of the appellate court, it was unfair.

… the question whether a procedural decision was fair does not involve a premise that in any given forensic situation only one outcome is ever fair. … it is where it can say with confidence that the course taken was not fair that an appellate or reviewing court should intervene. Put another way, the question is whether the decision was a fair one, not whether it was ‘the’ fair one.6[2010] EWCA Civ 1345 at [20]. See also at [27].

… must act on all relevant evidence before them … and reach a rational judgment. For my part, a requirement that they act with scrupulous fairness would add nothing. That is a standard to which all judges and justices should aspire in all their functions.

The right to a fair hearing under this article [6(1)] carries with it some ancillary rights that are not usually regarded as part of the general right to procedural fairness in common law. The right to a hearing within a reasonable time and the right to legal assistance of one’s own choosing, for example, are expressly guaranteed by art 6.10[2005] 1 WLR 350 at [41].

Where, as in the present case, a personal bias or mala fides on the part of the deputy commissioner is not in question, the rules of natural justice which he must observe can, in my view, be reduced to two. First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing.13[1965] 1 QB 456 at 487–488.

The common law rules of natural justice or procedural fairness are twofold. First, the person affected has the right to prior notice and an effective opportunity to make representations before a decision is made. Second, the person affected has the right to an unbiased tribunal. These two requirements are conceptually distinct.15[2005] 1 All ER 723 at [14].

If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.17[1962] AC 322 at 337.

The reason for the common law right to prior notice and an effective opportunity to make representations is to protect parties from the risk of decisions being reached unfairly. But it is only directed at decisions which can affect parties’ rights. Procedural fairness does not require that parties should have the right to make representations in relation to decisions which do not affect their rights, still less in relation to ‘decisions’ which are nullities and which cannot affect their rights.

… a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice should be denied to him …20[1990] 1 AC 876 at 898.

For it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles.39[1976] 1 WLR 1255 at 1263.

The more indefinite the language, the less apt it is to exclude the members’ reasonable expectation of being accorded natural justice.41[1970] Ch 345 at 401–402.

While s32 of the 1991 Act expressly provided for oral hearings in some classes of case, those classes did not include cases such as the present in which oral hearings were permitted but not required. That, it was submitted, represented a legislative choice. But the maxim expression unius exclusio alterius can seldom, if ever, be enough to exclude the common law rules of natural justice …

It is well recognised, however, that Convention rights are to be seen as an expression of fundamental principles rather than as a set of mere rules. In applying the principles the courts must balance competing interests.

… the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Art 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

Human rights conventions are concerned with substance, not form, with practicalities and realities, not linguistic niceties.

… the underlying principle, which is to maintain the rule of law and the separation of powers …

… art 6 is in principle concerned with the procedural fairness and integrity of a state’s judicial system …52[2003] 1 AC 1163 at [142].

Human rights conventions are concerned with substance, not form, with practicalities and realities, not linguistic niceties. The crucial question … is whether, as a matter of substance, the relevant provision of national law has the effect of preventing an issue which ought to be decided by a court from being so decided. The touchstone in this regard is the proper role of courts in a democratic society. A right of access to a court is one of the checks on the danger of arbitrary power.54See also Van Droogenbroeck v Belgium (1982) 4 EHRR 443 at [38]; R (Anderson) Secretary of State for the Home Department [2003] 1 AC 837 at [13].

… encroaching on territory which ought properly to be the province of the courts in a democratic society.55[2004] 1 AC 816 at [36].

Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. The Court therefore considers … that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention.

… the right of access constitutes an element which is inherent in the right stated by Article 6(1). This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6(1) read in its context and having regard to the object and purpose of the Convention, a lawmaking treaty, and to general principles of law.

The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.73(1975) 1 EHRR 524 at [35].

As this is a right which the Convention sets forth without, in the narrower sense of the term, defining, there is room, apart from the bounds delimiting the very content of any right, for limitations permitted by implication.74(1975) 1 EHRR 524 at [38].

The point arises in this way. The Convention gives these three children a right of access to a court to claim compensation for their loss of dependency following the death of their mother. Although the European Court of Human Rights recognises that the enactment of limitation periods represents the pursuit of a legitimate aim (see Stubbings v United Kingdom 23 EHRR 213, 227, paras 53–55), these claims were not statute-barred when this writ was issued in 1997.

The European Court of Human Rights has also recognised the legitimacy of other restrictions on the right of access to a court that have been drawn to its attention from time to time. Cases involving vexatious litigants, persons under disability, and the striking out of actions for want of prosecution are obvious examples. A fuller list can be found in standard text-books on Article 6(1): see, for example, Clayton and Tomlinson, The Law of Human Rights, Vol 1, pp 640–1, para 11.191. The governing test, set out in the judgment of the ECtHR in Ashingdane v United Kingdom 7 EHRR 528, 546, para 57, and repeated often in later cases, is that such restrictions must not impair the essence of the right of access; they must have a legitimate aim, and the means used must be reasonably proportionate to the aim sought to be achieved.

… fulfilment of a duty under the Convention on occasion necessitates some positive action on the part of the State … The obligation to secure an effective right of access to the courts falls into this category.

In certain eventualities, the possibility of appearing before a court in person, even without a lawyer’s assistance, will meet the requirements of Article 6(1); there may even be occasions when such a possibility secures adequate access even to the High Court. Indeed, much must depend on the particular circumstances…. but there are others such as, for example, a simplification of procedure…. However, … Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is compulsory … or by reason of the complexity of the procedure or of the case.81(1979) 2 EHRR 305 at [26].

The principle of equality of arms – one of the elements of the broader concept of a fair trial – requires that each party should be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent … Each party must be given the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party …

It is apparent from the judge’s judgment and Dr Marriott’s evidence that there are indeed a number of steps that can be taken during the trial. These include: (i) keeping the claimant’s level of cognitive functioning in mind; (ii) using concise and simple language; (iii) having regular breaks; (iv) taking additional time to explain court proceedings; (v) being proactive in ensuring the claimant has access to support; (vi) explaining and ensuring the claimant understands the ingredients of the charge; (vii) explaining the possible outcomes and sentences; (viii) ensuring that cross-examination is carefully controlled so that questions are short and clear and frustration is minimised.

… would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the ‘trial’ for the purposes of Article 6; moreover, the Court has already accepted this principle in cases concerning the length of proceedings.

… Mr Clancy had complained that he had had, as it were, something of a rough time before the Tribunal – questions being shot at him and his representative, and in consequence a lack of coherence, as he claimed, in advancing his case was experienced. But that can reflect the nature of such Tribunal hearings. The Tribunal members are not expected to sit quietly and silently letting a party say whatever he likes, for as long as he likes, using whatever materials he likes, and I can see no complaint on that ground. I stress that Mr Clancy was assisted by a representative from the Royal British Legion.

… an intemperate and wholly unwarranted attack on the integrity of a judge for which there is no evidential basis and which derives only from the fact that the judge has rejected the appellant’s case tells me more about the litigant than it does about the judge.

The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased…. 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.

The ‘fair minded and informed observer’ is probably not an insider (ie another member of the same tribunal system). Otherwise she would run the risk of having the insider’s blindness to the faults that outsiders can so easily see. But she is informed. She knows the relevant facts. And she is fair minded.

The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word ‘he’), she has attributes which many of us might struggle to attain to.

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, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. 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 be seen to be, unbiased. She knows that judges, like anybody 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.

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.

We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in text books, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers…. By contrast, a real danger of bias132The reference to danger of bias needs to be updated to a real possibility in line with Porter v Magill [2002] 2 AC 357. might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; … or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him.

The natural reaction of the lawyer to any problem is to look for case precedent and this is true even where the issue is essentially one of fact. In such circumstances precedent can be helpful in focussing the mind on the relevant issues and producing consistency of approach. In a case such as the present, however, the search is for the reaction of the fair-minded and informed observer. The court has to apply an objective assessment as to how such a person would react to the material facts. There is a danger when applying such a test that citation of authorities may cloud rather than clarify perception. The court must be careful when looking at case precedent not to permit it to drive common sense out of the window.

… art 6(1) does not require that a member state should comply with any theoretical constitutional concepts as such. The question is always simply whether the requirements of the convention are met in the particular case. Similarly, in a domestic law context, the question will turn, not on theoretical administrative or other concepts as such, but on whether the tribunal can be regarded as impartial and independent in the particular circumstances.

… a real danger of bias144The reference to danger of bias needs to be updated to a real possibility in line with Porter v Magill [2002] 2 AC 357. might well be thought to arise … if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind … The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.

A party cannot normally expect a judge to recuse himself because the judge has previously made adverse comments about him, in the course of a case or cases, though the circumstances of each situation will need specific consideration. Neither can parties assume or expect that findings adverse to a party in one case entitled that party to a different judge or tribunal in a later case.

In my judgment, the mere fact that the tribunal has previously decided the issue is not of itself sufficient to justify a conclusion of apparent bias. Something more is required. Judges are assumed to be trustworthy and to understand that they should approach every case with an open mind. The same applies to adjudicators, who are almost always professional persons. That is not to say that, if it is asked to redetermine an issue and the evidence and arguments are merely a repeat of what went before, the tribunal will not be likely to reach the same conclusion as before. It would be unrealistic, indeed absurd, to expect the tribunal in such circumstances to ignore its earlier decision and not to be inclined to come to the same conclusion as before, particularly if the previous decision was carefully reasoned. The vice which the law must guard against is that the tribunal may approach the rehearing with a closed mind. If a judge has considered an issue carefully before reaching a decision on the first occasion, it cannot sensibly be said that he has a closed mind if, the evidence and arguments being the same as before, he does not give as careful a consideration on the second occasion as on the first. He will, however, be expected to give such reconsideration of the matter as is reasonably necessary for him to be satisfied that his first decision was correct.148[2005] 1 All ER 723 at [20].

… would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance.

The greater the passage of time between the event relied on as showing a danger of bias159The reference to danger of bias needs to be updated to a real possibility in line with Porter v Magill [2002] 2 AC 357. and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

The court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the court’s case law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, as well as the importance of what is at stake for the applicant …

Further, according to the court’s established jurisprudence, a chronic backlog of cases is not a valid explanation for excessive delay, and the repeated re-examination of a single case following remittal may in itself disclose a serious deficiency in the respondent State’s judicial system …

Finally, the court notes that particular diligence is required in all cases concerning civil status and capacity … and that this requirement is additionally reinforced in States where domestic law itself provides that certain kinds of cases must be resolved with particular urgency …

Article 6 does not lay down what is a reasonable time. It does not even attempt to identify any of the factors relevant to determining what is a reasonable time. The question obviously depends on all the circumstances of the particular case: the nature of the tribunal, its jurisdiction, constitution and procedures, the subject matter of the case, its factual and legal complexity and difficulty, the conduct of the tribunal and of the parties and any other special features of the situation in which delay has occurred.