Inherent in the ascertainment of the relevant facts and circumstances “which
have a bearing on the allegation of bias” is that there must be a logical
connection between those facts and the feared deviation from impartiality.
22.
In summary the reviewing court must consider whether a fair minded
and informed observer apprised of all the relevant facts being neither unduly
suspicious, nor complacent would conclude in the circumstances that there was
a real possibility of bias.
Fair minded and informed observer
23.
Especially in the context of this case the characteristics of the
reasonable fair-minded and informed observer must be considered. Those
characteristics have also been described in a series of cases.
24.
The attributes of the fair minded and informed observer were recently
considered by Mendonça JA in Panday v Espinet4. Because it is necessary to
bear this in mind in any evaluation of the relevant facts and circumstances it is
necessary to also set these out at length (all emphasis added).
31. The fair-minded informed observer, as I have already alluded to,
is a hypothetical creature. He has been endowed with attributes
which, it has been suggested, “many of us might struggle to attain”
(see Helow v Secretary of State for the Home Department [2008]
1WLR 2416 at para. 1).
32. Being fair-minded he always reserves judgment on every point
until he has seen and fully understood both sides of the argument.
He will therefore not come to a hasty conclusion. He is not to be
confused with the person who made the complaint. The
assumptions the complainant made are not to be attributed to the
observer unless they can be justified objectively.
33. He is informed. He can distinguish between what matters are
relevant and what are irrelevant. He will take the time to inform
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Civil Appeal No. 250 of 2009 delivered May 11th 2011
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