Key Facts
- •Appeal against disbarment of barrister Robert Kearney.
- •Two separate cases involving allegations of sexual harassment.
- •Recusal application based on alleged bias of the Bar Tribunals and Adjudication Service (BTAS) panel.
- •Email from HHJ Carroll (BTAS Chair) to Green LJ (Inns of Court Chair) expressing concerns about a regulatory lacuna and the appellant's conduct.
- •Appellant argued apparent bias due to the email's content suggesting pre-judgment.
Legal Principles
Test for apparent bias: Would a fair-minded and informed observer conclude that there was a real possibility/danger that the tribunal was biased?
Porter v McGill [2001] UKHL 67; Re: Medicaments case
The fair-minded observer is not unduly sensitive or suspicious.
Helow v Secretary of State for the Home Department [2008] UKHL 62
Where there are real grounds for doubt as to a lack of bias, it should be resolved in favour of recusal.
Civil Procedure Rules, Part 1.1, paragraph 1.1.3 (editorial notes)
Outcomes
Appeal allowed on ground 1 (recusal).
The email from HHJ Carroll demonstrated apparent bias. The judge found that a fair-minded observer would conclude there was a real possibility the panel was biased, having formed views in private before hearing evidence and submissions on mitigation. This was not simply a provisional view expressed in an open hearing.