15.
The test for apparent bias was also considered extensively in the
decision of the Court of Appeal in Panday v Virgil Mag. App. 75 of 2006. See
for example the judgment of the Honourable Warner JA at paragraph 12
(adopted from the case of Porter & Anor v Magill [2002] AC 357) as follows (all
emphasis added):
“whether the fair minded observer, having considered the facts,
would conclude that there was a real possibility that the tribunal
was biased”.
See also paragraph 243
16.
See also the Honourable Archie JA, (as he then was), in Panday v Virgil
at paragraph 1, who described it as whether:
“a fair-minded and well informed observer would conclude that
there was a real possibility that the Chief Magistrate, before whom
he [the appellant] had been tried, was biased”.
17.
As stated by Warner JA in Panday v Virgil at paragraph 26 of her
judgment.
“An allegation of apparent bias does not involve a finding of judicial
impropriety or misconduct, or breach of the judicial oath. It involves
a finding that circumstances exist from which a reasonable and
informed observer may conclude that there was bias in the conduct
of the proceedings. Except where actual bias is alleged, it is not
useful to investigate the individual’s state of mind. The courts have
recognised that bias operates in such an insidious manner that the
person alleged to be biased may be unconscious of the effect. It is
trite law that if a reasonable apprehension of bias arises, the whole
proceeding becomes infected. Credibility issues no longer arise; the
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24) As to bias, in Medicaments at paragraph 37, Lord Phillips said:
“Bias is an attitude of the mind which prevents the judge from making an objective
determination of the issues he has to resolve. A judge may be biased because he has reason
to prefer one outcome of the case to another. He may be biased because he has reason to
favour one party rather than another. He may be biased not in favour of one outcome of the
dispute but because of a prejudice in favour of or against a particular witness which prevents
an impartial assessment of the evidence of that witness. Bias can come in many forms. It may
consist of irrational prejudice or it may arise from particular circumstances which, for logical
reasons, predispose a judge towards a particular view of the evidence or the issues before
him”
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