"The Court has directed that the following personal statement by Dr Penelope Rowlatt be sent to both parties: `I have worked for some two and a half years for Europe Economics, an economics consultancy. Many months ago I gave consideration to moving to another consultancy because I was unhappy where I was. On Friday the3rd November 2000 I decided to ring Frontier Economics to ask that firm if they would consider me for a part time post. Although I had known earlier that Mr Zoltan Biro of that firm was an expert witness [on behalf of the DG] in the Medicaments case, I did not recall this fact at the time: if I had, I would not have telephoned. I spoke to the personal assistant to the Managing Director to ask if I could be considered, and she said that she would telephone back. I asked her who were the directors of that company - she mentioned the name of Mr Zoltan Biro. After I had rung off, I realised that this might be of some significance and I decided to inform Mr Justice Lightman at the first opportunity. The first opportunity was this morning and he advised me to send this statement to Counsel for both sides. I have as yet received no reply from Frontier Economics. Mr Justice Lightman also advised me to send (and I have sent) a fax to Frontier Economics in the following terms:' `In view of the involvement of myself as part of the Court and Mr Biro as an expert witness in the Medicaments case, the application which I made to the personal assistant to the Managing Director cannot be pursued until after the conclusion of the trial.'"
"The Court has directed that a further personal statement by Dr Penelope Rowlatt be sent to both parties: `For the sake of completeness I wish to record two further contacts between Frontier Economics and myself. Soon after the clerk to Mr Justice Lightman sent the fax to Frontier Economics in the terms set out in my previous statement, I received a telephone call from the personal assistant to the Managing Director of Frontier Economics. As soon as she told me who she was, I said that I could not speak to her. She replied that Frontier Economics had come to the same conclusion and the telephone conversation ended at that point. On Thursday evening I received a telephone call from a person saying that he was calling on behalf of Mr Zoltan Biro asking for my address. I gave him my address but I told him to tell Mr Biro that I might feel obliged to disclose any communication to the parties. The following day I received a letter, a copy of which is attached to this statement. With respect to the letter addressed to the Court by Mr Cran requesting that I should recuse myself, I should like to say the following: (1) in the current proceedings my mind has been focused on the substance of the statements of the expert witnesses and not on the names of the firms for which they worked. Although the connection of Frontier Economics with the case slipped my mind when I made the original telephone call, the mention of the name of Mr Zoltan Biro by the personal assistant to the Managing Director in the course of our telephone conversation did strike a bell; (2) as soon as I appreciated that Frontier Economics was instructed by the Respondents in this case, I realised that it would be inappropriate for me to join that firm, and it is now clear that Frontier Economics has no interest in my joining them. To confirm my position, I would be happy to give an undertaking not to join that firm for two years after the final order in these proceedings or indeed for any lengthier period which either party may request. I have no regret in withdrawing the application. If I had had in mind the involvement of Frontier Economics in the case, I would never have made the application in the first place; (3) I am confident that I retain (as I have retained throughout this whole case) the essential independence of mind required of a member of the Court and (unless persuaded to the contrary by the submissions made by the Respondents on their application to the Court) I do not consider that I ought to recuse myself."
"Dear Penelope Following your call to my PA, Victoria Card, we have considered your request to meet to discuss possible working requirements. Unfortunately, we do not have any vacancies for a person of your experience and are unlikely to do so for the foreseeable future. I must, therefore, decline your request to meet. I wish you well in the future. Yours sincerely [signed] Simon Gaysford Director"
"There is no suggestion in this case of actual bias on the part of Dr Rowlatt. The essential issue underlying the Applications is whether the actions of Dr Rowlatt in relation to her application for a job at Frontier Economics ("
"The Respondents strenuously challenge the credibility of the statement by Dr Rowlatt that at the time she made the telephone call, she did not have in mind that Mr Biro worked for Frontier and that Mr Biro and Frontier were providing expert evidence in the case for the DG. Certainly the papers in the case made this plain to anyone reading them. Dr Rowlatt must have seen this fact when she read the papers. But that does not make it incredible that she did not have it in mind when making the approach to Frontier. Indeed what is surely more incredible is that Dr Rowlatt should have had this in mind at the time of the telephone call, and yet at the first opportunity after the call should have felt impelled to bring this matter to the attention of the Judge and (through the Judge) of the parties and thereby bring upon herself the Applications. Dr Rowlatt says that she did not have in mind the fact of Frontier's engagement in the proceedings when she made the call and we think that this is more credible than that she did have it in mind at the time. We should add that we are far from satisfied that it would make any significant difference if she had known at the time and, being subsequently troubled by this knowledge, took the action which she did to bring her actions to the notice of the Court and the parties. It might raise questions as to her judgment, but would not significantly affect the case made on apparent bias."
"We say also that a reasonable onlooker would be concerned firstly that Dr Rowlatt might have some resentment that her hopes had been frustrated. The reasonable onlooker would doubt the truth of what Frontier Economics has to say in its letter, but would know, nevertheless, that Dr Rowlatt could not, after all that has happened, expect ever to go there. She must know that too and that would be a source of lasting resentment."
"The essential problem in this case is that Dr Rowlatt would like to be employed by Frontier Economics. She says that she has for some time been unhappy in her current employment. Frontier are probably the most prominent and successful firm in the relatively small world of economic consultancy in which she operates. There is no reason to suppose that the events of the last few days have diminished Dr Rowlatt's desire to join Frontier if she properly can. She initially did no more than suspend her application until after the conclusion of the trial. She gave more extensive undertakings only later and in response to the threat of this application. Although the probability must be that the present dispute has deferred any prospect of her being employed by Frontier for some time, this is wholly conjectural and the future course of her relations with Frontier is frankly impossible to predict, by her or any one else."
" Right to a fair trial In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."
"It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction. In those circumstances I am satisfied that this conviction must be quashed, unless it can be shown that the applicant or his solicitor was aware of the point that might be taken, refrained from taking it, and took his chance of an acquittal on the facts, and then, on a conviction being recorded, decided to take the point. On the facts I am satisfied that there has been no waiver of the irregularity, and, that being so, the rule must be made absolute and the conviction quashed."
"In the judgment of this Court the right test is that prescribed by Blackburn J. [in Reg. v Rand (1866) LR 1 QB 230], namely, that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding, a real likelihood of bias must be shown. This court is further of opinion that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries."
"The frequency with which allegations of bias have come before the courts in recent times seems to indicate that Lord Hewart's reminder in the Sussex Justices case that it `is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done' is being urged as a warrant for quashing convictions or invalidating orders upon quite unsubstantial grounds and, indeed, in some cases upon the flimsiest pretexts of bias. Whilst indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done."
"Mr Hytner submits, applying that test, that the fair-minded observer would suspect in the present case that a fair trial was not possible. In this case Mrs Smith in her affidavit evidence has stated that she was unaware of the relevant facts connecting her to the appellant until after the jury had delivered its verdict. This evidence was unchallenged. Accordingly this can be distinguished from the various authorities which have been cited to us in that in these latter cases the relevant `connecting' facts giving rise to the alleged bias have already been known to the particular member of the tribunal, against whom bias has been raised, throughout the trial in question. This did not apply in the present case. If the fact that Mrs Smith was not aware of the relevant facts connecting her to the appellant had been known to the fair-minded observer, then surely the observer would, in those circumstances, have regarded the trial as having been a fair one. Should we impute knowledge of Mrs Smith's particular state of mind to the fair-minded observer? Mr Hytner submits that such an observer would be bound to conclude that Mrs Smith must have realised who the case concerned when she heard the address referred to in the statement and also when she saw David Gough's photograph. Her claim of ignorance would be unacceptable to a fair-minded observer. We think there is force in this contention. Accordingly we do not seek to distinguish the instant case by imputing to the fair-minded observer actual knowledge of Mrs Smith's unawareness of the relevant facts until after the verdict had been delivered."
" A layman might well wonder why the function of a court in cases such as these should not simply be to conduct an inquiry into the question whether the tribunal was in fact biased. After all it is alleged that, for example, a justice or a juryman was biased, i.e. that he was motivated by a desire unfairly to favour one side or to disfavour the other. Why does the court not simply decide whether that was in fact the case? The answer, as always, is that it is more complicated than that. First of all, there are difficulties about exploring the actual state of mind of a justice or juryman. In the case of both, such an inquiry has been thought to be undesirable: and in the case of the juryman in particular, there has long been an inhibition against, so to speak, entering the jury room and finding out what any particular juryman actually thought at the time of decision. But there is also the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias - a point stressed by Devlin L.J. in Reg. v. Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 Q.B. 167, 187. In any event, there is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart C.J. in Rex v Sussex Justices, Ex parte McCarthy[1924] 1 KB 256 , 259, that it is `of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done'. I shall return to that case in a moment, for one of my tasks is to place the actual decision in that case in its proper context. At all events, the approach of the law has been (save on the very rare occasion where actual bias is proved) to look at the relevant circumstances and to consider whether there is such a degree of possibility of bias that the decision in question should not be allowed to stand."
"We have not to inquire what impression might be left on the minds of the present applicants or on the minds of the public generally. We have to satisfy ourselves that there was a real likelihood of bias - not merely satisfy ourselves that that was the sort of impression that might reasonably get abroad. The term `real likelihood of bias' is not used, in my opinion, to import the principle in Rex v. Sussex Justices to which Salmon J. referred. It is used to show that it is not necessary that actual bias should be proved. It is unnecessary, and, indeed, might be most undesirable, to investigate the state of mind of each individual justice. `Real likelihood' depends on the impression which the court gets from the circumstances in which the justices were sitting. Do they give rise to a real likelihood that the justices might be biased? The court might come to the conclusion that there was such a likelihood, without impugning the affidavit of a justice that he was not in fact biased. Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so. The matter must be determined upon the probabilities to be inferred from the circumstances in which the justices sit."
"....in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part then he should not sit.... There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: `The judge was biased'."
"....both considered that it was not necessary that actual bias should be proved, the court having therefore to proceed upon an impression derived from the circumstances: and that the question is whether such an impression reveals a real likelihood of bias. The only difference between them seems to have been that, whereas Devlin L.J. spoke of the impression which the court gets from the circumstances, Lord Denning M.R. looked at the circumstances from the point of view of a reasonable man, stating that there must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, was biased. Since, however, the court investigates the actual circumstances, knowledge of such circumstances as are found by the court must be imputed to the reasonable man; and in the result it is difficult to see what difference there is between the impression derived by a reasonable man to whom such knowledge has been imputed, and the impression derived by the court, here personifying the reasonable man. It is true that Lord Denning M.R. expressed the test as being whether a reasonable man would think it `likely or probable' that the justice or chairman was biased. If it is a correct reading of his judgment (and it is by no means clear on the point) that it is necessary to establish bias on a balance of probabilities, I for my part would regard him as having laid down too rigorous a test. In my opinion, if, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose. Finally there is, so far as I can see, no practical distinction between the test as I have stated it, and a test which requires a real danger of bias, as stated in Reg. v. Spencer[1987] AC 128 . In this way, therefore, it may be possible to achieve a reconciliation between the test to be applied in cases concerned with justices and other members of inferior tribunals, and cases concerned with jurors."
"In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him; though, in a case concerned with bias on the part of a justices' clerk, the court should go on to consider whether the clerk has been invited to give the justices advice and, if so, whether it should infer that there was a real danger of the clerk's bias having infected the views of the justices adversely to the applicant."
"It must be remembered that except in the rare case where actual bias is alleged, the court is not concerned to investigate whether or not bias has been established. Whether it is a judge, a member of the jury, justices or their clerk, who is alleged to be biased, the courts do not regard it as being desirable or useful to inquire into the individual's state of mind. It is not desirable because of the confidential nature of the judicial decision making process. It is not useful because the courts have long recognised that bias operates in such an insidious manner that the person alleged to be biased may be quite unconscious of its effect. It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but seen to be done applies. When considering whether there is a real danger of injustice, the court gives effect to the maxim, but does so by examining all the material available and giving its conclusion on that material. If the court having done so is satisfied there is no danger of the alleged bias having created injustice, then the application to quash the decision should be dismissed. This, therefore, should have been the result in the Sussex Justices case if Lord Hewart C.J's remarks are to be taken at face value and are to be treated as a finding, and not merely an assumption, that there was no danger of the justices' decision being contaminated by the possible bias of the clerk."
"From R v. Gough I derive the following propositions: (1) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts. (2) It necessarily follows that the factual position may appear quite differently as between the time when the challenge is launched and the time when it comes to be decided by the court. What may appear at the leave stage to be a strong case of justice `not manifestly and undoubtedly being seen to be done', may, following the court's investigation, nevertheless fail. Or, of course, although perhaps less probably, the case may have become stronger. (3) In reaching its conclusion the court `personifies the reasonable man'. (4) The question upon which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By `real' is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak of a real risk or a real possibility. (5) Injustice will have occurred as a result of bias `if the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him'. I take `unfairly regarded with disfavour' to mean `was pre-disposed or prejudiced against one party's case for reasons unconnected with the merits of the issue'. (6) A decision-maker may have unfairly regarded with disfavour one party's case either consciously or unconsciously. Where, as here, the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision-maker was unconsciously biased. (7) It will be seen, therefore, that by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias."
"The famous aphorism of Lord Hewart C.J. in R v Sussex Justices, ex p. McCarthy[1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234 that `justice.... should manifestly and undoubtedly be seen to be done' is no longer, it seems, good law, save of course in the case where the appearance of bias is such as to show a real danger of bias."
"In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done. Of the various tests used to determine an allegation of bias, the reasonable apprehension test of bias is by far the most appropriate for protecting the appearance of impartiality. The test of `reasonable likelihood' or `real danger' of bias tends to emphasise the court's view of the facts. In that context, the trial judge's acceptance of explanations becomes of primary importance. Those two tests tend to place inadequate emphasis on the public perception of the irregular incident. We do not think that it is possible to reconcile the decision in Gough with the decisions of this Court. In Gough , the House of Lords specifically rejected the reasonable suspicion test and the cases and judgments which had applied it in favour of a modified version of the reasonable likelihood test. In Watson , faced with the same conflict in the cases between the two tests, this Court preferred the reasonable suspicion or apprehension test. That test has been applied in this Court on no less than eight subsequent occasions. In the light of the decisions of this Court which hold that the reasonable apprehension or suspicion test is the correct test for determining a case of alleged bias against a judge, it is not possible to use the `real danger' test as the general test for bias without rejecting the authority of those decisions. Moreover, nothing in the two speeches in the House of Lords in Gough contains any new insight that makes us think that we should re-examine a principle and a line of cases to which this Court has consistently adhered for the last eighteen years. On the contrary, there is a strong reason why we should continue to prefer the reasoning in our own cases to that of the House of Lords. In Gough , the House of Lords rejected the need to take account of the public perception of an incident which raises an issue of bias except in the case of a pecuniary interest. Behind this reasoning is the assumption that public confidence in the administration of justice will be maintained because the public will accept the conclusions of the judge. But the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the `lay observer', the `fair-minded observer', the `fair-minded, informed lay observer', `fair-minded people', the `reasonable or fair-minded observer', the `parties or the public', and the `reasonable person' abound in the decisions of this Court and other courts in this country. They indicate that it is the court's view of the public's view, not the court's own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J. pointed out in Vakauta (1989) 167 C.L.R. at p.585 in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge's opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge's findings."
"In the overwhelming majority of cases we judge that application of the two tests would anyway lead to the same outcome. Provided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well informed member of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done."
"While a reviewing court may receive a written statement from any judge, lay justice or juror specifying what he or she knew at any relevant time, the court is not necessarily bound to accept such statement at its face value. Much will depend on the nature of the fact of which ignorance is asserted, the course of the statement, the effect of any corroborative or contradictory statement, the inherent probabilities and all the circumstances of the case in question. Often the court will have no hesitation in accepting the reliability of such a statement; occasionally, if rarely, it may doubt the reliability of the statement; sometimes, although inclined to accept the statement, it may recognise the possibility of doubt and the likelihood of public scepticism. All will turn on the facts of the particular case. There can, however, be no question of cross-examining or seeking disclosure from the judge. Nor will the reviewing court pay attention to any statement by the judge concerning the impact of any knowledge on his mind or his decision: the insidious nature of bias makes such a statement of little value, and it is for the reviewing court and not the judge whose impartiality is challenged to assess the risk that some illegitimate extraneous consideration may have influenced the decision."
"One advantage of the test of reasonable apprehension on the part of a fair-minded and informed observer is that it makes plain that an appellate court is not making an adverse finding on the question whether it is possible or likely that the particular judge or juror was in fact affected by disqualifying bias. In contrast, the real danger test is focused upon that very question. Regardless of an appellate court's care to make plain that its finding is only one of possibility of danger, such a finding is likely to be unfairly damaging to the reputation of the person concerned who will commonly not have been a party to the proceedings before the appellate court and whose subjective thought processes will not have been investigated in the appellate court."
"The preceding considerations are of a certain importance which must not be underestimated. If one refers to the dictum `justice must not only be done; it must also be seen to be done', these considerations may allow doubts to arise about the satisfactory nature of the system in dispute. They do not, however, amount to proof of a violation of the right to a fair hearing. Looking behind appearances, the Court does not find the realities of the situation to be in any way in conflict with this right."
"Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably underArticle 6(1) of the Convention , be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. (a) As regards the first approach, the Court notes that the applicant is pleased to pay tribute to Mr Van de Walle's personal impartiality; it does not itself have any cause for doubt on this score and indeed personal impartiality is to be presumed until there is proof to the contrary. However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance. As the Belgian Court of Cassation observed in its judgment of21 February 1979 , any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society. (b) It would be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor's department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves. So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the public prosecutor's department, would erect a virtually impenetrable barrier between that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor's department is not a reason for fearing that he lacks impartiality: the Court concurs with the Government on this point. (c) The Belgian Court of Cassation, which took Article 6(1) into consideration of its own motion, adopted in this case a criterion based on the functions exercised, namely whether the Judge had previously intervened in the case in or on the occasion of the exercise of.... functions as a judicial officer in the public prosecutor's department. It dismissed Mr Piersack's appeal on points of law because the documents before it did not, in its view, show that there had been any such intervention on the part of Mr Van de Walle in the capacity of senior deputy to the Brussels procureur du Roi, even in some form other than the adoption of a personal standpoint or the taking of a specific step in the process of prosecution or investigation. (d) Even when clarified in the manner just mentioned, a criterion of this kind does not fully meet the requirements of Article 6(1). In order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. If an individual after holding in the public prosecutor's department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality."
"...the personal impartiality of a judge is to be presumed until there is proof to the contrary, and in the present case no such proof is to be found in the evidence adduced before the Court. In particular, there is nothing to indicate that in previous cases Mr Pilate had displayed any hostility or ill-will towards Mr De Cubber or that he had `finally arranged' for reasons extraneous to the normal rules governing the allocation of cases, to have assigned to him each of the three preliminary investigations opened in respect of the applicant in 1977. However, it is not possible for the Court to confine itself to a purely subjective test; account must also be taken of considerations relating to the functions exercised and to internal organisation (the objective approach). In this regard, even appearances may be important; in the words of the English maxim quoted in, for example, the Delcourt judgment of17 January 1970 , `justice must not only be done; it must also be seen to be done'. As the Belgian Court of Cassation has observed, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused."
"in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether the test can be held objectively justified."
"undergone a considerable evaluation in the Court's case-law, notably in respect of the importance attached to appearances and to the increased sensitivity of the public to the fair administration of justice."
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