Court of Appeal recusal guidelines
Section 171 of the Senior Courts Act 2016 requires the President of the Court of Appeal, in consultation with the Chief Justice, to develop and publish guidelines to assist Judges of the Court of Appeal to decide if they should recuse themselves from a proceeding. The following recusal guidelines have been adopted accordingly.
Introduction
1. The Judges of the Court of Appeal have agreed on some administrative guidelines as to the processes to be followed to determine issues about recusal. The procedures described are intended only as guidance. Decisions about recusal are very much fact dependent and the approach to be taken in a particular case may vary depending on the factual matrix.
Guiding principles
2. A Judge is disqualified from sitting if in the circumstances there is a real possibility that in the eyes of a fair-minded and fully informed observer the Judge may not be impartial in reaching a decision in the case.
3. The test is a two-step one requiring consideration of:
a. what are the circumstances relevant to the possible need for recusal because of apparent bias?
b. whether those circumstances lead to a reasonable apprehension the judge may not be impartial.
4. That test therefore requires ascertainment of, first, what it is that might possibly lead to a reasonable apprehension that the Judge might decide the case other than on its merits and, secondly, whether there is a logical and sufficient connection between those circumstances and that apprehension.
Process guidelines
5. Prior to the President allocating panels for given cases in the Permanent Court, a list of prospective cases will be circulated on a monthly basis so that Judges can indicate cases on which they should not be listed for conflict reasons.
6. A similar approach will be followed for cases in the Divisional Court, with lists of prospective cases circulated approximately two weeks before the hearings. Panel members in the Divisional Court should raise any potential conflict issues with the presiding Judge in the first instance.
7. After a Judge has been assigned to a case and seen the papers, the Judge may realise that there is some previously undetected matter concerning their prospective involvement:
a. If the Judge considers recusal is required in accordance with [2] above, the Judge will stand aside.
b. Where the issue is not clear cut, the Judge should consult, at that point, with other members on the panel. The panel may also consult the President.
c. If, after consultation, the Judge considers the parties should be informed, there should be a formal communication by Minute delivered through the Registrar.
8. After a case is listed, objection may be raised by a party to a given Judge sitting. That objection should be raised in a memorandum filed at the earliest opportunity.
9. If a Minute is issued under [7], or an objection has been raised under [8], above, parties will have the opportunity to file brief written submissions, normally no more than three pages. On occasion affidavits may be required.
10.If objection is maintained, the matter will then be determined either on the papers or at an oral hearing, possibly by telephone, by the panel including the impugned Judge unless the President otherwise directs. The President's decision as to the composition of the panel will depend on matters such as the nature and seriousness of the objection and the circumstances in which it is raised. The panel may also consult the President in making its decision.
11.On the day oral applications are not considered appropriate. If a recusal issue is raised at this late stage, the allocated panel will deal with the matter then and there.
12.Where a possible conflict of interest is identified after the hearing of an appeal but before the judgment is delivered, the procedures set out at paragraphs [7] to [10], with necessary modification, will apply.
Stephen Kós P
22 November 2021