With thanks to Civil Liberty.
London Assembly Member, Murad Qureshi, has announced that he is withdrawing from the Standards Sub-Committee that is considering a complaint against the British National Party’s Greater London Assembly Member, Richard Barnbrook.
In a statement issued recently, Mr Qureshi said:
“I have agreed, with some reluctance, to withdraw from the Hearing Sub-Committee of the London Assembly Standards Committee that is considering a complaint against BNP London Assembly Member and Barking & Dagenham councillor Richard Barnbrook.
“This is the result of an objection to my membership of the Sub-Committee by Mr Barnbrook, on the grounds that I am ‘a consistent, forthright and bitter critic of the BNP’ and have attacked him personally on my blog. He implies that I am not able to hear the case without prejudging its outcome.
“The complaint against Mr Barnbrook does not however concern his membership of a fascist party or its racist politics, both of which I have publicly condemned. It arises from his statement in September 2008 that two people had been murdered on the streets of Barking & Dagenham, when this was not in fact true. I am of course capable of judging this case on its merits, regardless of his or my other views.
“However, I have received legal advice that because of comments I have previously made about Mr Barnbrook, there may be legal grounds for an appeal if the Sub-Committee were to uphold the complaint against Mr Barnbrook. For that reason I have decided to stand down from the Sub-Committee.”
Mr Barnbrook had raised a complaint against Mr Murad sitting on the panel as he has personally attacked him in internet blogs as well as making extreme statements against the rival BNP to which Mr Barnbrook belongs. In a previous case Judy Moorhouse had to withdraw from a panel judging BNP teacher Adam Walker at the General Teaching Council for similar reasons following objections from the Solidarity Trade Union.
The law in summary is as follows:-
Article 6 of the European Convention on Human Rights guarantees you a fair and impartial hearing before an independent and impartial tribunal.
Justice must not only be done but must be manifestly and undoubtedly be seen to be done.
The test for bias should be taken from the case of Porter v. Magill [2002] and the question is whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
A man may not be judge in his own cause and this is not limited to automatic disqualification in pecuniary advantage cases but is equally applicable if a judge’s decision would lead to promotion of a cause with which he, together with one of the parties, has an interest.
From Hutton (in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 2) [2000]):- “There could be a case where the interest of the judge in the subject matter of the proceedings, arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings, could shake public confidence in the administration of justice.”
The matter must be determined objectively as well as subjectively. However strongly the decision maker’s own confidence as to his ability to decide the matter impartially, the decisive issue must be the impression that would be made on a fair minded informed observer.
In a House of Lords decision delivered on 22 October 2008 (Helow v Secretary of State for the Home Department [2008] UKHL 62) Lord Hope set out the attributes of the hypothetical fair-minded and informed observer in whose position the Committee must place themselves to make this decision.
The fair-minded observer reserves judgment on every point until she has fully observed both sides of the argument. She is not unduly sensitive or suspicious but she is not complacent either. She knows that fairness requires that a judge must be and must be seen to be unbiased and she will not shrink from the conclusion, if it can be justified objectively, that things a judge may have said or done, or associations they may have formed may make it difficult to judge the case before them objectively.
In Helow the appellant was a Palestinian claiming asylum. Her family was involved with the Palestine Liberation Organisation. She appealed against a decision to the Court of Session. The judge was a member of the International Association of Jewish Lawyers and Jurists and was a founding member of the Scottish branch of that association. Some articles in the association journal were considered hostile to the PLO. The House of Lords had to consider whether or not that judge could give the appellant a fair hearing. The Judges decided that the Judge could give a fair hearing. Crucially, however Lord Hope commented:-
“Had there been anything to indicate that (the judge) had by word or deed associated herself with these views so as to indicate that they were her views too, I would have no difficulty in concluding that the test of apparent bias…was satisfied.”
On this basis there seems little room for argument that Mr Qureshi was right to withdraw. Indeed one has to question why those selecting the panel thought him suitable in the first place and why alarm bells did not ring for Mr Qureshi himself.
The withdrawal of Mr Qureshi and his extraordinary statements on exiting raise further questions. Some now argue that the case is so tainted that the prospect of Mr Barnbrook getting a fair hearing is extremely unlikely. Mr Qureshi in his recent comments again publicly reiterates his antipathy towards the BNP and describes Richard Barnbrook as belonging to a ‘fascist’ party that holds ‘racist’ policies. Both these adjectives are contentious and highly subjective. To use such language in the context of a yet to be determined case is inherently prejudicial. The appointment of Mr Quereshi and the tenor of his statements create a strong suspicion that we are witnessing a kangaroo court motivated by political spite.
Mr Qureshi comments on an issue of fact which is a fundamental point in issue and should therefore be considered ‘sub judice.’ In written evidence already submitted, Mr Barnbrook seeks to persuade the panel that the factual issues and circumstances pertaining to his alleged misstatement are not clear-cut, and in any event, have no bearing on the issue of ‘disrepute.’ For Mr Qureshi to pronounce at this stage what he believes or does not believe to be ‘true’ is not only a blatant statement of bias, but displays an apparent complete lack of understanding of the impartiality required of his judicial role. Such comments might also be taken as an attempt to prejudice the remaining Panel members.
Mr Qureshi states that he has only withdrawn as a result of legal advice because Mr Barnbrook might have grounds for appeal if the standards committee were to find against him. He states “There may be legal grounds for an appeal if the Sub-Committee were to uphold the complaint against Mr Barnbrook. For that reason (our emphasis), I have decided to withdraw.” Surely the proper motivation for withdrawing should be on the basis that he might be biased or seen to be biased and a concern for Justice, rather than because he wishes to deny Richard Barnbrook grounds for appeal?
It seems to us at Civil Liberty that whatever the rights and wrongs of the original complaint against Mr Barnbrook the process has been so badly mishandled that there is now no possibility of conducting a fair-hearing. The case should be dismissed. We also believe that where biased individuals are appointed to panels they should be routinely challenged. Mr Barnbrook should be congratulated for fighting his corner in this instance.
The removal of the likes of Qureshi and Moorhouse is notice served to others of their ilk.
GIUSEPPE DE SANTIS
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