matters that are relevant. So informed, I do not think that the
average person in this jurisdiction would tend to be suspicious or
overly so. Consistent with the hypothetical person he would not be
unduly suspicious.
44. Suspicion also does not sit well with someone who is fairminded. There are obvious difficulties in accepting that someone
who is fair-minded should be treated as someone who is not (sic)
unduly suspicious.
45. The question therefore is whether the fair-minded and informed
observer having considered the facts would conclude that there
is/was a real possibility the Magistrate was or would be biased. A
two-step approach has been advocated. First, the Court must
ascertain all the circumstances which have a bearing on the
suggestion that the Magistrate was biased. Second, it must then ask
itself whether those circumstances would lead a fair-minded and
informed observer to conclude that there is/was a real possibility
that the Magistrate was or would be biased.
See also CJ v LATT [2018] UKPC 23 at paragraph 35
35. ….applying the test laid down in Porter v Magill [2001] UKHL 67;
[2002] 2 AC 357: would a fair-minded and informed observer,
having considered the facts, conclude that there was a real
possibility that the LATT was biased? As Lord Hope explained in
eGillies v Secretary of State for Work and Pensions [2006] UKHL 2;
[2006] 1 WLR 781, para 17:
“The fair-minded and informed observer can be assumed to have
access to all the facts that are capable of being known by members
of the public generally, bearing in mind that it is the appearance
that these facts give rise to that matters, not what is in the mind of
the particular judge or tribunal member who is under scrutiny. It is
to be assumed, as Kirby J put it in Johnson v Johnson (2000) 201 CLR
488, 509, para 53, that the observer is neither complacent nor
unduly sensitive or suspicious when he examines the facts that he
can look at. It is to be assumed too that he is able to distinguish
between what is relevant and what is irrelevant, and that he is able
when exercising his judgment to decide what weight should be given
to the facts that are relevant.”
In short, the fair-minded and informed observer is also a sensible
and rational person. (All emphasis added)
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