Supreme Court dismisses appeal on objective bias grounds where judge viewed privileged documents without reasonable apprehension of unfairness.

THE SUPREME COURT

[Appeal No: 315/2011]

Denham C.J.

Hardiman J.

Fennelly J.

O’Donnell J.

Clarke J.

Between/

James Kennedy

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

JUDGMENT of Mr. Justice Fennelly delivered the 7th day of June 2012.

1. I agree that this appeal should be dismissed. I agree with the judgment which has been delivered by the Chief Justice on the issue

of delay. The Chief Justice has given an outline of the facts and history of the case which I gratefully adopt. I write separately only

on the issue of objective bias.

2. Counsel for the appellant submitted at the hearing that the learned High Court judge should not have heard the case. The reason

was that the judge had seen evidence, not disclosed to the parties, which he described as being “highly prejudicial to the applicant.”

Consequently, it is argued, he should have recused himself.

3. The procedural background is as follows. The respondent claimed to be entitled to refuse to produce certain documents whose

existence was disclosed in the affidavit of discovery sworn on his behalf, based on legal professional privilege and/or public interest

privilege. The appellant issued a motion seeking inspection of the documents over which privilege was claimed, to be heard at the

commencement of the hearing of the application for judicial review.

4. Counsel for the appellant objected to the proposal made by counsel for the respondent that the learned judge should himself view

the documents to enable him to decide whether they should be produced for inspection. The objection was that this would be an

unfair procedure because, if the judge were to rule that the appellant was not entitled to see the documents, the judge would himself

have seen them and that there was a risk that he could be influenced by his inspection of the documents. The objection was

overruled and the learned judge proceeded to view the documents. As the Chief Justice has explained in her judgment the objection

was based on the decision of the European Court of Human Rights in Edwards and Lewis v. The United Kingdom (2005) 40 E.H.R.R. 24.

5. In the course of making his objection, counsel for the appellant submitted that the rationale of that decision was, not that it would

bar the judge from subsequently being the trial judge in ensuing criminal proceedings, but, as counsel specifically objected, it would

bar him from being the judge in these very judicial review proceedings. He submitted that, although a judge might inspect documents

in private for the purpose of determining a disputed issue of privilege, a different judge should then hear the substantive proceedings.

6. The learned judge decided that he would inspect the documents. He did so and then made the ruling which is the gravamen of the

allegation of objective bias. He ruled that the public interest in not disclosing the documents outweighed any interest of the

appellant. Indeed he could find nothing in the latter respect which could outweigh that public interest. He then proceeded to make

the remarks to which objection has been taken:

“As to the documentation concerning the request to the Isle of Man authorities, it is difficult to see its relevance on my reading of it.

It is a very tangential to the charges faced by the Applicant and to the case being made in this application. Moreover, it seems on

the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the Applicant. Their production, in my

opinion, could only damage the Applicant’s case herein. There is clearly a public interest in the confidentiality of communication

between the prosecution authorities of Ireland and other countries….”

The learned judge added: “as I have ruled this documentation to be privileged and therefore not to be produced, I will not take any of

its content into account in my consideration of this application.”

7. Counsel for the appellant then proceeded, without any break in the hearing, to present the application for judicial review. No

objection was taken to the above remarks, although it is now contended that they exhibit objective bias on the part of the trial

judge. Specifically, it is said that the judge acknowledged having seen documentation which was “highly prejudicial” to the appellant

and that it was such that it, in his opinion, “could only damage the Applicant’s case herein.”

8. In response to the appellant’s argument that the learned judge was obliged to recuse himself so as to permit a different judge to

hear the application for judicial review, the respondent lays particular emphasis on the absence of any objection to that effect.

Counsel relied on the decisions of this Court in State (Byrne) v. Frawley [1978] IR 326; Corrigan v. Irish Land Commission [1977] IR

317). The effect of those decisions is that, by virtue of estoppel or waiver, a person may be precluded from relying on a ground of

objection which was not made at the appropriate time.

9. Before considering any authority, I propose to examine the remarks of the trial judge to which objection was taken. It must be

remembered that these remarks were made ex tempore and cannot be expected to have the coherence and logic of a written text.

The first point to note is that the learned judge found it difficult to see any relevance in the documentation. It was, he said,

“tangential” both to the criminal charges the appellant was facing and to the case he was making in the very judicial review

application itself. Taken on its own, therefore, the judge's remark that the documents were “highly prejudicial” cannot, in logic, give

rise to any prejudice related to the issues in the present case. It is only the ensuing remark that the documentation, if produced,

“could only damage the Applicant’s case herein,” which is problematic. It is inconsistent with what went before and a great deal of

meaning has to be placed on the single word “herein.”

10. I am prepared to accept, however, that, read literally, this part of the judge's remarks could be read as indicating that what he

had seen documentation which would be prejudicial to the appellant. Whether the words meet the standard of the reasonable

objective bystander seems, however, to be doubtful. The test has been restated many times in recent years and is usefully

encapsulated in the judgment of Denham J (as she then was) in Bula Ltd. v Tara Mines (No. 6) [2000] I.R. 412 at page 441:

“However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is

whether a reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair

hearing from an impartial judge on the issue. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the

apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person”.

11. Keane C. J. expressed the matter in very similar terms Orange Communications Ltd. v Director of Telecoms (No. 2) [2000] 4 I.R.

159 at 186 as follows:

“While the test for determining whether a decision must be set aside on the ground of objective bias has been stated in different

ways from time to time by the courts in the United Kingdom, there is, in the light of the two [Irish] authorities to which I have

referred, no room for doubt as to the applicable test in this country: it is that the decision will be set aside on the ground of objective

bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found

that, although there was no actual bias, there is an appearance of bias.”

12. It is not unfair to test the matter in this case by reference to the reaction of counsel for the appellant, who might be expected to

be astute to raise an objection of bias, having regard to the submissions they had made to the learned judge before he gave his

ruling. The fact that no objection was made must lead to the inference that it did not appear to counsel listening to the judge’s ruling

that he was exhibiting signs of objective bias. The situation is analogous to that which not infrequently presents itself to the Court of

Criminal Appeal, where counsel advances an objection which was not made at trial. The court is sceptical as to the merits of any

objection of which it did not occur to counsel to make at the time and, in particular, discourages the practice of “trawling” through

the transcripts in search of possible grounds of complaint.

13. Corrigan v. Irish Land Commission concerned an objection made by way of appeal on a point of law to the Appeal Tribunal of the

Land Commission and thence to this Court to the fact that the two land commissioners who had certified that the land proposed to be

acquired was necessary for the relief of congestion also sat as the Lay Commissioners to determine the landowner’s objection. No

objection was made to the lay commissioners themselves when they sat to hear the objection. Henchy J considered that two

experienced counsel who appeared for the objector had consciously and knowingly accepted the composition of the tribunal. Writing

for the majority of this Court (Kenny J dissenting) said, at page 324, that he considered “it to be settled law that………………if [a party]

expressly or by implication acquiesces at the time in that member taking part in the hearing and in the decision, he will be held to

have waived the objection on the ground of disqualification which he might otherwise have had.” In the particular case, Henchy J held

that any objection to the participation of a particular commissioner had been “knowingly waived by counsel for the appellant when

they elected to accept the tribunal as they found it composed o the day of the hearing.”

14. Griffin J, who agreed with Henchy J, cited authority to the effect that a waiver must be intentional and emphasised the need for

knowledge of what was being waived. For my part, I would be slow to hold that counsel had knowingly waived a ground of objection

available to his or her client in the course of a hearing and without the opportunity for consultation. In Corrigan Henchy J went to

great lengths to infer from the status of counsel and their advance knowledge of the composition and procedures of the Land

Commission that they had knowingly and deliberately waived any objection by their acquiescence.

15. The present case is, I think different. There can be no suggestion, nor has one been made, that counsel made the sort of

calculated decision which arose in Corrigan. On the other hand, I do not think the words used by the learned High Court judge, when

considered in context, are capable of being interpreted as exhibiting bias on his part. He said, in effect, that he had seen material

which was highly prejudicial to the appellant, but it was tangential to any issue in the judicial review proceedings and he had difficulty

in seeing its relevance. The fact that counsel did not object is itself strongly indicative of the fact that no “reasonable person in the

circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the

issue.”

16. It would be possible to rule against the objection simply on the ground that there is no ground of appeal related to it. The first

two grounds of appeal repeat the objection made in the High Court to the judge inspecting documents, despite the objection of the

appellant, over which the respondent had asserted privilege. There is no ground expressly covering the distinct complaint that the

learned judge had, in the course of his ruling on the first issue, shown bias by saying that he had seen material which was “highly

prejudicial” to the appellant. Like Clarke J, I would be slow to rule against the appellant on that ground alone. However, it seems to

me that the absence of any such ground of appeal provides further confirmation of the fact that it did not appear to the parties at

the time that there was any ground for asserting objective bias.

17. I have had the opportunity of reading in draft the judgment which Clarke J is about to deliver. I full agree with his treatment of

the procedural issue of examination of documents by a trial judge of documents over which privilege is claimed. I also agree with his

treatment of the issue of delay considered in the context of the European Convention of Human Rights. I would prefer to reserve for

another occasion consideration of the correct burden to be imposed on an application for prohibition of a criminal trial on the ground

of delay generally. For the present case, the test of a real risk of an unfair trial suffices.