259 That justice must not only be done but must manifestly and

undoubtedly be seen to be done. The rationale is not only that of

fairness to the parties but also public confidence in the integrity of the

decision- making process. The main principles are as follows:

. A direct personal financial interest, however small, will automati-

cally disqualify the decision maker, the law conclusively presuming

bias (Dimes v. Grand Junction Canal Co. (1852); Lord Chancellor

held shares in company appearing before him; R. v. Hendon (RDC)

ex parte Chorley (1933) – councillor had financial interest in devel-

opment for which planning permission was sought. See also Hesketh

394 General Principles of Constitutional and Administrative Law

v. Braddock (1776) 3 Burr 1847, R. v. Camborne Justices ex parte

Pearce [1955] 1 QB 41 at 47). One exception is where no other

decision maker is qualified to act, in which case Parliament must be

taken to have impliedly authorised the bias (Wilkinson v. Barking

Corporation (1948); see also Supreme Court Act 1981 s. 11 – judges

as taxpayers). Also an insignificant (de minimis ) interest might be

ignored (Locobail (UK) Ltd v. Bayfield Properties Co. [2000] 1 All

ER 65, 71).

. In R. v. Bow Street Magistrates Court ex parte Pinochet (No. 2)

(1999), the House of Lords extended automatic disqualification to a

case where a judge has a personal non-financial connection with one

of the parties. Lord Hoffman, a Law Lord, was an unpaid director

of a charitable subsidiary of Amnesty International, a human rights

pressure group, which was a party to an appeal before the House

of Lords. Although Lord Hoffmann had no financial interest in the

outcome he was a supporter of a cause that might be advanced

by the case. Pinochet has been criticised on the ground that there is

an important distinction between ‘interest’ where the judge stands to

gain personally so that he is a judge in his own case and ‘favour’

where the judge might prefer a particular outcome (Olowofoyeku,

2000). Pinochet seems to be a case only of favour. In the case of

favour a more flexible approach may be more appropriate. Other

common law jurisdictions have confined automatic disqualification

to strictly financial interests (ibid.).

. A decision of a judicial body such as a court or a tribunal will be

quashed if there is a ‘real danger’ of bias. This arises in many circum-

stances. Examples include R. v. Liverpool Justices ex parte Topping

(1983): justices had print-out of the accused’s previous convictions;

Locobail (UK) Ltd v. Bayfield Properties Co. (2000): judge in an

insurance case had written articles in the legal press criticising

insurance companies in the context of similar issues; Metropolitan

Properties v. Lannon (1968): rent tribunal chair advised his father in

a dispute with the same landlord; Hannam v. Bradford Corporation

(1970): member of a local authority committee adjudicating on a

teacher’s disciplinary case was also a governor of the school in ques-

tion where the governors had previously considered the case.

Cases in which a person plays multiple roles are particularly

vulnerable. In Hannam for example, it made no difference that the

governor in question had not attended the relevant governors’

meeting because group loyalty was enough to raise a possibility

of bias. At the other end of the scale, political views as such do

not disqualify nor does loyalty to an organisation whose rules the

395

Judicial Review of the Executive: The Grounds of Review

claimant is accused of breaking unless in both cases the decision

maker actually behaves unfairly (Re S (a barrister) (1981)).

It is not clear how high the threshold should be. Different formu-

lations such as ‘real likelihood’ or ‘real suspicion’ of bias have been

used but without general acceptance. There seems to be two crucial

differences between these formulations. According to the ‘reason-

able suspicion’ test which was favoured for example in Hannam

(above), the test is not whether the reviewing court think there was

bias but whether a reasonably well-informed ordinary person might

do so. Secondly, according to the reasonable suspicion test, the deci-

sion is made in the light of facts known to the claimant even though

there may be other facts not so known that might dispel the suspi-

cion, for example the decision maker’s explanation or an internal

practice. The reasonable suspicion test therefore emphasises the

appearance of bias in the context of public perception. Under the

‘real likelihood’ test the court itself decides whether bias is likely in

the light of all the circumstances.

In R. v. Gough (1993) the Court of Appeal applied a compromise

which it labelled the ‘real danger’ test (or ‘real possibility’ or ‘real

risk’). According to this test the court itself asks whether there is a

chance of bias in the light of all the circumstances the hypothetical

informed outsider being dispensed with. In Gough the accused was a

neighbour of a jury member who did not, however, recognise him.

The decision was held valid. It was perhaps a crucial factor that the

accused had accepted the jury-person’s explanation.

Gough was followed for a time in the UK but was rejected in some

commonwealth jurisdictions as weakening the element of public

confidence (see Olowofoyeku (above)) and may also be less strin-

gent than the ECHR Art. 6 requires. In Medicaments and Related

Classes of Goods, in Re (2001) the Court of Appeal, having reviewed

the ECHR cases, suggested a ‘modest adjustment’ to Gough. This

required the court to decide, on the basis of all the circumstances

known to it as in Gough, not whether there was a real danger of bias

but whether the hypothetical informed outsider could reasonably so

believe. In Medicaments a lay member of the Restrictive Practices

Court was applying for a job with a firm one of whose members was

an expert witness before the court. The Court of Appeal held that

she was disqualified even though she had taken steps to minimise the

conflict of interest. The Medicaments test was endorsed by the

House of Lords in Porter v. Magill (2002).

. In the case of administrative decisions taken by politicians a less

stringent approach is taken because conflicts of interest arising out