Jonathan Mitchell QC

Subscribers to the House of Lords Judgments service received today four important decisions which traverse a wide range of issues in human rights and public law: from a restatement of the principle that the Human Rights Act has no application to overseas territories¹ to a consideration of the interaction of Islamic family law with Articles 8 and 14 of ECHR; and from a revisiting of the doctrine of substantive legitimate expectation to an analysis of whether membership of an association implies acceptance of everything written by its office-bearers.

Reading the first three paragraphs of Lord Hope’s speech on judicial impartiality and apparent bias in Helow v Home Secretary, which begins

” The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word “he”), she has attributes which many of us might struggle to attain to. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument… before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant”

reminds me of the language of the English Court of Appeal in the notorious 1924 case of Fardell v Potts², in which the Master of the Rolls, discussing the concept of the ‘reasonable man’ observed

“This noble creature … is always thinking of others; prudence is his guide, and ‘Safety First’, if I may borrow a contemporary catchword, is his rule of life. All solid virtues are his, save only that peculiar quality by which the affection of other men is won. …. Though any given example of his behaviour must command our admiration, when taken in the mass his acts create a very different set of impressions. He is one who invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or bound; who neither star-gazes nor is lost in meditation when approaching trap-doors or the margin of a dock; who records in every case upon the counterfoils of cheques such ample details as are desirable, scrupulously substitutes the word ‘Order’ for the word ‘Bearer’, crosses the instrument ‘a/c Payee only’, and registers the package in which it is despatched; who never mounts a moving omnibus, and does not alight from any car while the train is in motion; who investigates exhaustively the bona fides of every mendicant before distributing alms, and will inform himself of the history and habits of a dog before administering a caress; who believes no gossip, nor repeats it, without firm basis for believing it to be true; who never drives his ball till those in front of him have definitely vacated the putting-green which is his own objective; who never from one year’s end to another makes an excessive demand upon his wife, his neighbours, his servants, his ox, or his ass; who in the way of business looks only for that narrow margin of profit which twelve men such as himself would reckon to be ‘fair’, contemplates his fellow-merchants, their agents, and their goods, with that degree of suspicion and distrust which the law deems admirable; who never swears, gambles, or loses his temper; who uses nothing except in moderation, and even while he flogs his child is meditating only on the golden mean. Devoid, in short, of any human weakness, with not one single saving vice, sans prejudice, procrastination, ill-nature, avarice, and absence of mind, as careful for his own safety as he is for that of others, this excellent but odious character stands like a monument in our Courts of Justice, vainly appealing to his fellow-citizens to order their lives after his own example. I have called him a myth; and, in so far as there are few, if any, of his mind and temperament to be found in the ranks of living men, the title is well chosen.”

In Fardell v Potts, the Court of Appeal appears to have been persuaded³ that the common law of England knew no such fictional creature as the ‘reasonable woman‘; the conclusion was that Mrs Fardell could accordingly owe no duty of reasonable care to anyone. That heresy can no longer be regarded as good law⁴. Lord Hope’s language, however, recalls the reasoning process that led to that result, rather than the obiter remark of the Court of Appeal that “it is no bad thing that the law of the land should here and there conform with the known facts of everyday experience“.

There is a serious point to this. While the actual decision in Helow seems clearly correct, it is odd to see a court rejecting a proposition by pointing out that creatures of fiction would reject it. To paraphrase Lord Scott earlier this year⁵ , “Issues … should surely be resolved on a basis of reality and not on the basis of … legal fiction“. Again, to quote Lord Nicholls last year⁶. “Legal fictions, of their nature, conceal what is going on. They are a pretence. … I would like to think that, as a mature legal system, English law has outgrown the need for legal fictions“. Apparently it has not outgrown that need. A few years ago, it was widely thought that the possibility of apparent bias in judicial process was to be looked at from the point of view of ordinary people with an ordinary degree of cynicism; see for example Lawal v Northern Spirit 2002 EWCA Civ 1218 and Davidson v Scottish Ministers [2004] UKHL 34: an “observer who has considered the facts but lacks the detailed knowledge and self-knowledge of the judge“. That now seems barely arguable. Few members of the public, as indeed Lord Hope recognises, “always reserve judgment on every point until [they have] seen and fully understood both sides of the argument“. Yet the appearance of impartiality to the public is now to be tested by reference to a standard which is not that of the general public but one which a professional judge might “struggle to attain“.

1. Another aspect of this principle is, I understand, to be argued next month in the St Helena Court of Appeal which sits, oddly enough, in London. [back]
2. [1924] 1 MCCL 8. The facts were that Mrs Fardell, the appellant, while navigating a motor-launch on the River Thames, collided with the respondent, who was navigating a punt, as a result of which the respondent was immersed and caught cold. The respondent brought an action for damages, in which it was alleged that the collision and subsequent immersion were caused by the negligent navigation of Mrs Fardell. The court of first instance found her liable. The appeal was allowed. Excerpts and commentary here. [back]
3. The case was “ably, though tediously, argued by Sir Ethelred Rutt” for the appellant. [back]
4. It had already been rejected in In re C (A Minor) (Adoption: Parental Agreement: Contact) [1993] 2 FLR 260, in which the Court of Appeal said, in considering how a ‘reasonable mother‘ might act “Such a paragon does not of course exist: she shares with the ‘reasonable man’ the quality of being, as Lord Radcliffe once said, an ‘anthropomorphic conception of justice’. The law conjures the imaginary parent into existence to give expression to what it considers that justice requires“. But Fardell v Potts has been cited with approval in the US Supreme Court: Pope v Illinois, 1987 481 US 497. [back]
5. Bapio Action Limited v Home Secretary [2008] UKHL 26 at paragraph 58. [back]
6. Douglas v. Hello! Limited [2007] UKHL 21 at paragraph 228. [back]

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