At the end of last week, the House of Lords published two interesting decisions. The first is Helow v. Secretary of State for the Home Department [2008] UKHL 62. The second case is R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61. I intend to detail the first case and we shall look at the second one later.
Both are available on the website. The first at:
http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/helow-1.htm
and the second at:
http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-1.htm
The first is a fascinating case which originates from the Asylum & Immigration Tribunal (AIT) in Glasgow. This is a place where I have the joy of spending most of my weeks. I have known about this case for some time and have been eagerly awaiting the judgement. The question of whether the judgement is correct in law is a difficult one. I have a gut feeling that it cannot possibly be correct. I do not intend to rehearse all the legal arguments here, but I merely want to lay out the facts to highlight the decision. The decision is fairly short and is a good read, so I would encourage those with an interest to read it.
In terms of the facts, the case involves a young Palestinian girl who claimed asylum in the United Kingdom. The basis of her claim was, in short, that her family were active within the PLO and that she and a number of her family members were present during the massacres in the Sabra & Shatila refugee camps in 1982. As a witness to the massacres, she publicly blamed Ariel Sharon, a recent Prime Minister of Israel. She was also one of the main witnesses who helped instigate proceedings in the Belgian courts against Ariel Sharon, whilst he was the Israeli PM. (Interestingly, the statute which allowed the Belgian courts to take such action has been repealed, as I understand it).
Against this background, she claims asylum in the UK. Her case is refused by an Adjudicator (as they then were). An appeal was marked to the Immigration and Asylum Tribunal (as it then was) and this is again refused. Following the standard appeal routes, the case goes to the Court of Session where the papers are allocated to Lady Cosgrove. This is where the apparent problem arises which is the subject of the most recent litigation.
Lady Cosgrove is a well respected judge who is a member of the International Association of Jewish Lawyers and Jurists. As a member, she would receive a copy of the association's quarterly magazine and the appellant contended that as a result of this membership and considering a number of partisan articles within the magazine, there was the appearance of bias.
The lawyers amongst us will know that the test in cases of bias is laid out in Porter v. Magill [2002] 2 AC 357:
"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"
Guided by Porter, the Law Lords held unanimously that there was no reasonable possibility of bias in this particular case. A number of reasons were given for arriving at this conclusion. It was clear that had Lady Cosgrove herself said or published anything, then that would have been a different matter. However, it was held (Lord Rodger, para 20) that mere membership alone is not sufficient enough to impute the published views of other members onto Lady Cosgrove. Lord Cullen notes at para 29 that there was no indication that Lady Cosgrove "endorsed, was interested in, let alone read, the articles and pronouncements founded on..."
So is the decision the correct one? The quick answer is that I do not know. I can clearly understand the reasoning of the court. I am a member of a number of organisations. Some of my fellow members hold views which I consider extreme and which I never could endorse. Is it correct that their views be imputed to me? Probably not. However, will this particular appellant feel that justice has been done? Most probably not. will she feel that justice "has been seen to be done? Again, most probably not.
Both are available on the website. The first at:
http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/helow-1.htm
and the second at:
http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-1.htm
The first is a fascinating case which originates from the Asylum & Immigration Tribunal (AIT) in Glasgow. This is a place where I have the joy of spending most of my weeks. I have known about this case for some time and have been eagerly awaiting the judgement. The question of whether the judgement is correct in law is a difficult one. I have a gut feeling that it cannot possibly be correct. I do not intend to rehearse all the legal arguments here, but I merely want to lay out the facts to highlight the decision. The decision is fairly short and is a good read, so I would encourage those with an interest to read it.
In terms of the facts, the case involves a young Palestinian girl who claimed asylum in the United Kingdom. The basis of her claim was, in short, that her family were active within the PLO and that she and a number of her family members were present during the massacres in the Sabra & Shatila refugee camps in 1982. As a witness to the massacres, she publicly blamed Ariel Sharon, a recent Prime Minister of Israel. She was also one of the main witnesses who helped instigate proceedings in the Belgian courts against Ariel Sharon, whilst he was the Israeli PM. (Interestingly, the statute which allowed the Belgian courts to take such action has been repealed, as I understand it).
Against this background, she claims asylum in the UK. Her case is refused by an Adjudicator (as they then were). An appeal was marked to the Immigration and Asylum Tribunal (as it then was) and this is again refused. Following the standard appeal routes, the case goes to the Court of Session where the papers are allocated to Lady Cosgrove. This is where the apparent problem arises which is the subject of the most recent litigation.
Lady Cosgrove is a well respected judge who is a member of the International Association of Jewish Lawyers and Jurists. As a member, she would receive a copy of the association's quarterly magazine and the appellant contended that as a result of this membership and considering a number of partisan articles within the magazine, there was the appearance of bias.
The lawyers amongst us will know that the test in cases of bias is laid out in Porter v. Magill [2002] 2 AC 357:
"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"
Guided by Porter, the Law Lords held unanimously that there was no reasonable possibility of bias in this particular case. A number of reasons were given for arriving at this conclusion. It was clear that had Lady Cosgrove herself said or published anything, then that would have been a different matter. However, it was held (Lord Rodger, para 20) that mere membership alone is not sufficient enough to impute the published views of other members onto Lady Cosgrove. Lord Cullen notes at para 29 that there was no indication that Lady Cosgrove "endorsed, was interested in, let alone read, the articles and pronouncements founded on..."
So is the decision the correct one? The quick answer is that I do not know. I can clearly understand the reasoning of the court. I am a member of a number of organisations. Some of my fellow members hold views which I consider extreme and which I never could endorse. Is it correct that their views be imputed to me? Probably not. However, will this particular appellant feel that justice has been done? Most probably not. will she feel that justice "has been seen to be done? Again, most probably not.
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