AB v HM Attorney General

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Birt JA
• Judgment Date: 28 February 2020
• Neutral Citation: [2020] JRC 38A
• Date: 28 February 2020

[2020] JRC 38A

ROYAL COURT

(Samedi)

Before:

Sir Michael Birt, Commissioner, sitting as a single judge

Between

AB

Appellant

and

HM Attorney General

Respondent

The Appellant appeared in person.

Advocate J. A. E. Kerley for the Attorney General.

Authorities

Capacity and Self-Determination (Jersey) Law 2016.

Barette v AG [2006] JLR 407

Syvret v AG [2009] JLR 330

Syvret v Chief Minister [2011] JLR 343

Bisson v Minister for Infrastructure [2019] JCA 181.

Porter v Magill [2002] 2 AC 357

Helow v Home Secretary [2008] 1 WLR 2416

Dobbs v Triodos Bank NV [2005] EWCA Civ 468

McGonnell v United Kingdom Application No 28488/95

Meznaric v Croatia Application No 71615/1

Newtel Limited v Devaney [2013] JRC 189

Syvret v Attorney General [2011] JCA 130

Long-Term Care (Jersey) Law 2012

The Court of Appeal (Jersey) Law 1961

European Convention on Human Rights updated to 31 ^st August 2019

Steck-Risch & Others v Liechtenstein Application No 63151/00

Legal Studies Research Paper No. 107/2012 of the Queen Mary University School of Law entitled ‘McGonnell and the Bailiffs of Jersey and Guernsey: 11 Years On’

Human Rights (Jersey) Law 2000

Capacity — recuse.

Birt JA

1 This is an application by the Appellant that I should recuse myself from sitting as one of the judges on his forthcoming appeal, which is due to be heard by the Court of Appeal in the week commencing 23 ^rd March, 2020. The other judges scheduled to sit are Montgomery and Mountfield JJA.

2 The background to the appeal is as follows. X (“the son”) is the son of the Appellant (“the father”) and his wife (“the mother”), but they are now separated. The son has autism and learning difficulties and requires constant care to meet his living needs. It is not disputed that he is incapable of managing his property and affairs.

3 The son was looked after by carers at a property in Jersey but the landlord required the property for his own purposes. A new property was therefore needed. Two alternative properties were found, one favoured by the mother and an alternative property favoured by the father. The father did not – and still does not – consider the property favoured by the mother as being suitable because of safety concerns.

4 The matter subsequently came before the Royal Court (Le Cocq, Deputy Bailiff with Jurats Olsen and Averty) and in a judgment dated 26 ^th April, 2019 (“the April judgment”) (unpublished) the Court decided in favour of the property preferred by the mother and appointed her as delegate under the Capacity and Self-Determination (Jersey) Law 2016 (“the Law”) for the limited purpose of taking the lease of the property. That subsequently occurred and accordingly the son now resides at that property (“the Property”) and is looked after by his carers.

5 On 7 ^th October, 2019, the Royal Court (Commissioner Clyde-Smith OBE with Jurats Olsen and Pitman) sat to hear an application to appoint a delegate to manage the son's property and affairs generally. The expression “property and affairs” refers to property and financial affairs. There was no dispute between the parties as to the fact that the son does not have capacity to manage his property and affairs but they were not agreed as to the identity of the delegate. The mother submitted that she should be appointed as sole delegate whereas the father wished the Court to appoint him and the mother to be joint delegates, failing which him alone.

6 In a judgment dated 7 ^th October, 2019 (“the October judgment”), (unpublished) the Royal Court ruled that the son lacked capacity within the meaning of Article 24(1) of the Law and appointed the mother as sole delegate to manage his property and affairs. It directed however that the mother should keep the father informed in relation to the son's property and affairs. The mother duly took the oath and has been acting as sole delegate of the son since the October judgment.

The appeal

7 The father has appealed against the October judgment and it is that appeal which is due to come before this Court at its March sitting. His notice of appeal is lengthy and contains 34 orders which he would like this Court to make. Of key relevance in relation to the October judgment is his application that this Court should overturn that judgment and appoint him as delegate ‘to the full extent permitted by [the Law] with or without the willing involvement of [the mother]’. It would appear from this that he may be seeking appointment as a delegate in respect of the son's health and welfare as well as in respect of his property and affairs and the father confirmed during the hearing before me that this was so. As far as I can see from the October judgment, that is not an issue which was before the Royal Court, but the father tells me that it was raised by him.

8 He is in particular concerned that the balustrade on the first floor balcony of the Property is not of sufficient height, with the result that there is a real risk that the son may fall over it and be injured. Although he has not appealed specifically against the April judgment and would need to apply for leave to appeal out of time to do so, he seeks a number of orders relating to that issue including that the planning requirements have not been complied with and that the Minister for Health and Social Services has been in dereliction of his duty in failing to protect the son from harm.

9 A second category of matters dealt with in the notice of appeal relates to Article 6 ECHR. He contends that the Royal Court, in the proceedings giving rise to both the April and the October judgments, failed to deal with the matter fairly for a number of reasons, including that he was under undue time constraint in developing his arguments before the Royal Court.

10 It is against that background that the father now applies for me to recuse myself.

The test for apparent bias

11 The father places his application squarely on the ground of apparent bias. The test for apparent bias is well settled and has been applied in this jurisdiction on many occasions; see for example Barette v Attorney General [2006] JLR 407 at [44] per Nutting JA; Syvret v Attorney General [2009] JLR 330 at [12] per Montgomery JA; and Syvret v Chief Minister [2011] JLR 343 at [33] per Sumption, Commissioner. The position was helpfully summarised recently by Lord Anderson JA sitting as a single judge of this Court in Bisson v Minister for Infrastructure [2019] JCA 181. The test is that laid down by Lord Hope in the House of Lords in Porter v Magill [2002] 2 AC 357 at para 103 in the following terms:

“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.”

12 Assistance as to the approach of the hypothetical fair-minded and informed observer was given by Lord Hope in Helow v Home Secretary [2008] 1 WLR 2416 which was quoted by Sumption, Commissioner in Syvret v Chief Minister at para 33 as follows:

“1 My Lords, 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 .

2 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.

3 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.”

13 Lord Anderson JA also quoted with approval the following passage from the judgment of the English Court of Appeal in Dobbs v Triodos Bank NV [2005] EWCA Civ 468 at para 7:

“It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a...