Pinochet (No 2)
R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [1999] 2 WLR 272
Parties and outcome
- Applicant
- Augusto Pinochet Ugarte (applicant to set aside the earlier House of Lords order)
- Respondent
- Bow Street Metropolitan Stipendiary Magistrate (judicial review respondent)
- Opposing parties
- Commissioner of Police of the Metropolis; Government of Spain (appellants in the underlying appeal)
- Intervener
- Amnesty International
- Outcome
- Pinochet won this application: the House’s order of 25 November 1998 was set aside and the appeal was to be reheard. This did not finally determine extradition.
Citations in this work
Gough
The parties' submissions Miss Montgomery in her very persuasive submissions on behalf of Senator Pinochet contended (1) that, although there was no exact precedent, your Lordships' House must have jurisdiction to set aside its own orders where they have been improperly made, since there is no other court which could correct such impropriety; (2) that (applying the test in Reg. v. Gough [1993] A.C. 646 ) the links between Lord Hoffmann and A.I. were such that there was a real danger that Lord Hoffmann was biased in favour of A.I. or alternatively (applying the test in Webb v. The Queen (1994) 181 C.L.R. 41 ) that such links give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that Lord Hoffmann might have been so biased. *132 On the other side, Mr. Alun Jones accepted that your Lordships had power to revoke an earlier order of this House but contended that there was no case for such revocation here.
Gough
1 Q.B. 230 ; Reg. v. Gough [1993] A.C. 646 , 661.
Gough
I do, however, wish to make it clear (if I have not already done so) that my decision is not that Lord Hoffmann has been guilty of bias of any kind: he was disqualified as a matter of law automatically by reason of his directorship of A.I.C.L., a company controlled by a party, A.I. *136 For the same reason, it is unnecessary to determine whether the test of apparent bias laid down in Reg. v. Gough [1993] A.C. 646 ("is there in the view of the court a real danger that the judge was biased?") needs to be reviewed in the light of subsequent decisions.
Gough
the matter proceeds in the ordinary way, but, if the disclosure is not made, either through neglect or inadvertence, the judgment becomes voidable and may be set aside." As my noble and learned friend, Lord Goff of Chieveley, said in Reg. v. Gough [1993] A.C. 646 , 661, the nature of the interest is such that public confidence in the administration of justice requires that the judge must withdraw from the case or, if he fails to disclose his interest and sits in *141 judgment upon it, the decision cannot stand.
Gough
The test which was approved by your Lordships' House in Reg. v. Gough [1993] A.C. 646 is whether *142 there was a real danger of bias on the part of the relevant member of the tribunal.
Gough
This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence." In his judgment in Reg. v. Gough [1993] A.C. 646 , 659 my noble and learned friend, Lord Goff of Chieveley, made reference to the great importance of confidence in the integrity of the administration of justice, and he said: "In any event, there is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart C.J. in Rex v. Sussex Justices, Ex parte McCarthy [1924] 1 K.B. 256 , 259, that it is 'of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.'" Then referring to the Dimes case, he said, at p. 661: " ...
Cited by
- Liverpool
14. We note from R -v- Bow Street Magistrates, ex parte Pinochet (No 2) [1999] 2 WLR 272 and Locabail (UK) Limited (above) that the Gough formulation of the test has not been accepted in a number of common law jurisdictions and that there has been debate in those authorities as to whether the semantic difference between those two tests is likely to make any (and if so what) difference in practice. Thus Lord Hope in ex parte Pinochet at page 290: "Although the tests are described differently, their application by the appellate courts in each country is likely in practice to reach results which are so similar as to be indistinguishable."
54. Ms Patterson submitted that that test is more stringent than the test of apparent bias now applied in the courts. She referred us to R v Gough [1993] AC 646. The distinction, as Lord Justice Henry has pointed out in his judgment, is between "a reasonable apprehension or suspicion of bias" and "a real danger or possibility of bias"; although it is pertinent to keep in mind the observation of Lord Hope of Craighead in R v Bow Street Magistrates, ex parte Pinochet (No 2) [1999] 2 WLR 272, at page 290, that the application of either test to particular facts is likely to produce the same result.