Accusation of judge's bias rejected

Lady Cosgrove cleared of partiality in Palestinian asylum seeker case

News, 17 January 2007

A Scottish judge has been cleared of allegations of bias stemming from her membership of a Jewish law association.

Lady Cosgrove had been accused of lacking impartiality after she rejected an application by a Palestinian woman, Fatima Helow, for review of a decision of the immigration appeal tribunal. The tribunal had refused to allow her leave to appeal a decision refusing her asylum in this country.

Ms Helow did not claim that the judge's opinion itself disclosed any bias. Her complaint that as Lady Cosgrove had been a member of the International Association of Jewish Lawyers and Jurists since its inauguration in November 1997, she "lacked the necessary appearance of impartiality in her participation in the determination of the petitioner's application".

The Association's aims include the advancement of human rights, the prevention of war crimes, the punishment of war criminals and international co-operation based on the rule of law and the fair implementation of international covenants and conventions. It "is especially committed to issues that are on the agenda of the Jewish people, and works to combat racism, xenophobia, anti-Semitism, Holocaust denial and negation of the State of Israel".

Ms Helow claimed refugee status having been in the Sabra/Shatila refugee camp in Lebanon at the time of the Israeli invasion in 1982. Several of her relatives had been killed by Phalangist militia invited into the camp by the Israelis to eliminate Palestine Liberation Organisation fighters. Her family supported the PLO. In 2003, after Ariel Sharon the Israeli commander at the time, became Prime Minister of Israel, she took part in a television programme on the massacre. She now feared for her safety from Israeli, Lebanese and Syrian agencies through her various connections.

Policy statements

Aidan O'Neill QC for Ms Helow argued that while there was nothing wrong with the aims of the Association, the question was how the aims were realised. The Association had issued some strongly worded policy statements made on its behalf and adopted a pro-Sharon approach. It could be seen from its publications that the Association was a partisan campaigning body, and an informed member of the public would conclude that the judge, through her membership of the Association, might show apparent bias.

The accusation of bias was however rejected by Lords Nimmo Smith, Kingarth and Kirkwood. The court said that while it would be fair minded and observant to assume that Lady Cosgrove's membership of the association would make her sympathetic to the Israeli position, it could not be concluded that it would lead to bias on her part.

Significance of the oath

"After an apparently exhaustive trawl through the Association's material, and no doubt after much careful thought, the high point of the case in the averments made in the petition is not that it would be thought that the judge necessarily shared the views referred to, but that she may have been 'influenced' by them. We see no reason to suppose that any intelligent and independent-minded judge of the Court of Session - having taken the judicial oath and being well able to form her own views - would be influenced in this way", the court said.

Describing the judicial oath as "an important protection, not only against actual bias, but also against apparent bias", the judges commented: "Obviously, the judicial oath, and all that it carries with it, cannot serve as a complete guarantee of impartiality, but in our opinion the fair-minded and informed observer, taking account of these considerations, would give it great weight."

They concluded: “The fair minded and informed observer might therefore take the view that the judge, by reason of her membership of the Association, was likely to be sympathetic to the Israeli position.

“It would, however, in our opinion be unduly sensitive to conclude that there was a real possibility of bias on the part of the judge in determining the petitioner's application.”

The court's opinion can be read at http://www.scotcourts.gov.uk/opinions/2007CSIH05.html .