R (M) v MHRT  EWHC 2791 (Admin)
There was no appearance of bias where the sentencing judge, who had imposed the hospital order with restrictions, heard the subsequent MHRT appeal; the patient knew the relevant facts and unequivocally decided not to object at the time, so had waived his right to object
M pleaded guilty on 7 July 2003 to assaulting a police officer and was made subject to s37/41 MHA 1983 on 16 September 2003. His appeal to the MHRT was heard on 25 November 2004. M recognised the MHRT judge from the previous two court hearings and obtained legal advice that he could object and that, if successful, this would lead to an adjournment; he decided not to object. He was unsuccessful in his application for deferred conditional discharge.
He then sought an order that the MHRT decision be quashed on the basis that it was unlawful for the sentencing judge to hear the MHRT case because there was an appearance of bias under Article 5(4) and Article 6 and under domestic law. M submitted (1) that concerns about bias must be given the most anxious scrutiny given the extensive range of powers relating to detention and treatment; (2) that there was a substantial connection between the issues at court and at the MHRT (the statutory criteria) and there was a risk that a judge would adhere to a previous assessment; (3) there was a risk he might have a subconscious wish to uphold his original view; (4) there was a risk he might have information from September 2003 which might affect his mind in November 2004 and to which M might not have the opportunity to respond; and (5) that it would not be unduly onerous on the system if a sentencing judge could not preside over a subsequent MHRT.
The Tribunal submitted that there was no appearance of bias and that M had, in making an informed and unequivocal decision not to object, waived any objection.
The test to be applied
It was common ground that: “The question is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased.”, R (Al-Hasan) v SSHD, R (Carroll) v SSHD  UKHL 13. Account must be taken of Article 5(4) which entitles a detained person to take court proceedings to challenge the lawfulness of detention, and Article 6 which requires an independent and impartial tribunal to determine civil rights.
The discharge criteria (in s72 as applied by s73) refer to the present, and in those criteria the word 'then' “refers to the time of the tribunal's review and the tribunal has no power to consider the validity of the admission which gave rise to the liability to be detained”, R (von Brandenburg) v East London and City MH NHS Trust  UKHL 58. The Tribunal's reasons demonstrated that they did concentrate on the present. Further, the issue at the MHRT was not whether he should be absolutely discharged, nor whether M was suffering from mental illness. Therefore the Tribunal did not and could not have cast doubt on the validity of the sentence.
The objective “fair-minded and informed observer” question is a fact-sensitive one: “There is a danger when applying such a test that citation of authorities may cloud rather than clarify perception”, R (PD) v West Midlands & North West MHRT  EWCA Civ 311.
In De Cubber v Belgium 9186/80B one of the criminal judges had previously acted as the investigating judge: he had, as an officer of the police, carried out a preparatory investigation in secret, and consequently the applicant might well have thought the judge to have a pre-formed opinion affecting the final decision. In Hauschildt v Denmark 10486/83 B the judge had made pre-trial decisions in the case; this fact alone, without special circumstances, would not justify fears as to impartiality; but the judge had previously satisfied himself that there was “a very high degree of clarity as to guilt.” There were real differences of fact between those cases and the instant case: the judge was in no way in an analogous position; proceedings in Blackfriars Crown Court and the Tribunal were open; there were no special circumstances.
In Dr S Sengupta v GMCB there was no appearance of bias where the same judge heard the appeal as who refused permission to appeal: the fair-minded and informed observer would know appeal procedure and the persuasive importance of oral evidence, and would not suppose that the judge cannot change his mind when faced with a rational basis for doing so; the question is “whether a judge is in reality having to decide the same question in which he has previously reached a determination”.
The facts of PD, In re P (a barrister)B and Al-Hasan were briefly considered. R (Mackman) v Oxford Regional MHRT, The Times 2 June 1986, concerned a judge who sat on two successive MHRT hearings, the panel having refused to adjourn on the second occasion. Virtually the same test of bias was applied as here and the claim was rejected.
The fair-minded and informed observer would take into consideration the following, and thus would not conclude that there was a real possibility of bias: (a) the sentencing hearing was conducted in public and the judge knew nothing M did not know; (b) the MHRT had no power to question the validity of the sentence, von Brandenburg applied, so there was no question of the judge wishing to uphold the sentence; (c) the decisions and underlying reasoning were not the same, or substantially the same: there was no dispute as the presence of mental illness; even if there had been, the Tribunal had to consider only the current position; and the evidence now related to progress and conditional discharge; (d) there was no basis for saying the judge might have had information from September 2003 which may have affected his mind in November 2004; (e) the fair-minded and informed observer would not attribute to the judge an inability or reluctance to change his mind when faced with a rational basis for doing so; (f) Tribunal proceedings are quasi-adversarial and oral argument plays a vital role in promoting change of mind; (g) neither domestic nor European authorities would say there was a real possibility of bias; indeed, the closest authority, Mackman, supported the Tribunal.
The following considerations would not tip the balance in favour of M's case: (h) the requirements of Articles 5(4) and 6 in such cases; (i) the views of the MHA Commission and MIND, which supported M but were flawed and not held to have been of any particular assistance; (j) that it would not be unduly onerous on the system if a sentencing judge could not preside over a subsequent MHRT.
Waiver – obiter
Convention rights to an impartial tribunal can be waived if “all the circumstances which give use to the objections are known to the applicant and the waiver is unequivocal”, Millar v DicksonB. In that case Bulut v Austria 17358/90 B was quoted: “...it is not open to the applicant to complain... when he had the right to challenge its composition but refrained from doing so”. M had sufficient time to discuss the matter with his representative, had capacity to instruct lawyers, and, in deciding not to object, waived his right to object to the judge sitting on the Tribunal.
In R (C) v Cheshire County Council  ELR 66 it was said that the exercise of the power to adjourn was a free-standing public law obligation rather than a simple discretion challengeable only on Wednesbury unreasonableness and therefore the tribunal had to consider for itself whether fairness required an adjournment. The factual matrix of that case was entirely different and the dicta there could not apply to M's case: it would defy common sense if, even though M had taken the rational and informed decision not to object, the Tribunal still had to consider adjourning.
Claim for judicial review dismissed.