Journal of Legal, Ethical and Regulatory Issues (Print ISSN: 1544-0036; Online ISSN: 1544-0044)


Regulatory bodies, Professional rules of Conduct and the Rule against bias.

Author(s): Zia Akhtar*

The Rule against Bias in English law was set out in the case of Porter v Mcgill (2002) 2 AC 357 by Lord Hope as resting on the “the question of whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. The difference exists between the actual bias and the ostensible bias and this is particularly poignant where professional are involved in judgment and in disciplinary proceedings. The courts will infer the bias if the objective reasonable man would have inferred bias while assuming to have access to all the facts that are capable of being known by members of the public generally, keeping 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 who is under scrutiny. The issue is the possibility of bias in those hearings where the member of the legal profession is challenging a decision made by the regulatory body that has dis qualified the member at a previous hearing. The test was established in R (Kaur) v Institute of Legal Executives Appeal Tribunal and Another (2011) EWCA Civ 1168 where Lord Rix ruled that “the perception of impartiality is to be based on that which is open to view and not on facts which would be hidden from an outside fair- minded observer". This means that bias can be inferred from the appearance of the judge and are not reliant on grounds such as the determination made on information which is not prima facie in the knowledge of the observer in the court.

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