Sara Morrison vs Belfast Film Festival - Thread 2

[TwoLoonsAndASprout]

Continuation of previous thread - don’t have all the details to hand to add here, so if someone can pop them on, pls do! Want to get this up quickly!

Here is the free to view version of the Times article.

https://archive.ph/Gtjsn

I'm hoping someone here has more up to date legal ken than me, but unless things have changed radically since my day, there isn't an EAT in NI. It's a small jurisdiction after all.

After a tribunal has made its order, either party gets 14 days to apply to to the tribunal to reconsider its order. It might be possible, though I've never heard of a case, for the President of Tribunals to say, this hearing has been a massive pig's ear, let's do it again.

After that, I think the next step is the Court of Appeal, though as usual with the CoA you'd need to show either that the tribunal got the law wrong, or that there was serious procedural bias.

This recusal thing is high drama, but I've never seen it happen in a NI tribunal, and it doesn't sound like anyone else has either. Popcorn time!

I hope NC has found the correct Prof DB, otherwise... it doesn't bear thinking about😧

A lot of academics can't wait to plaster themselves everywhere. However, sometimes you need to know their initials to find their published papers.

Any bets on how long it'll take SD?

There are some accounts signed with a Professor title...

I would want to see something more recent than that. A lot has changed in society over that time. In 2005 I was an independent member and chair of a local authority standards committee, so independence and conflict of interest was very important. I dont even declare that position now- it is so in the past.

From NW

J returns to court
SD goes to NI CoA relating to a coroner refusing to recuse himself in a particular inquest. Asks J to go to par 36: In Re Medicaments (No. 2) [2001] 1WLR 700, 711 at [37] the Court of Appeal held: "Bias is an attitude of mind which prevents a judge from making an objective determination of the issues that he..."“[37] Bias is an attitude of mind which prevents the judge
from making an objective determination of the issues that he
has to resolve. A judge may be biased because he has reason
to prefer one outcome of the case to another. He may be
biased because he has reason to favour one party rather than
the other. He may be biased not in favour of one outcome of
the dispute but because of a prejudice in favour of or against
a particular witness which prevents an impartial assessment
of the evidence of that witness. Bias can come in many
forms. It may consist of irrational prejudice or arise from
particular circumstances which, for logical reasons, pre-
dispose a judge towards a particular view of the evidence or
issues before him.

[38] The decided cases draw a distinction between “actual
bias” and “apparent bias.” The phrase “actual bias” has not
been used with great precision and has been applied to the
situation (1) where a judge has been influenced by partiality
or prejudice in reaching his decision and (2) where it has
been demonstrated that a judge is actually prejudiced in
favour of or against a party. “Apparent bias” describes a situation where circumstances exist which give rise to a
reasonable apprehension that a judge may have been, or may
be biased."

From NW

40] In Helow v Secretary of State for the Home Department [2008] UKHL 62, the House of
Lords gave further consideration to the “apparent bias” test in Porter v Magill. In Helow,
the appellant was a Palestinian who challenged the involvement of the judge in the case
because of the judge’s association with pro-Jewish lobby organisations. It was alleged
that there was an appearance of bias. Elaborating on the attributes of a fair-minded and
informed observer, Lord Hope stated at para 2:
“The observer who is fair-minded is the sort of person who
always reserves judgement on every point until she has seen
and fully understood both sides of the argument. She is not
unduly sensitive or suspicious, as Kirby J observed in
Johnson v Johnson (2000) 201 CLR 488, 509, paragraph 53.
Her approach must not be confused with that of the person
who has brought the complaint. The "real possibility" test
ensures that there is this measure of detachment. ……. But
she is not complacent either. She knows that fairness
requires that a judge must be, and must be seen to be,
unbiased. She knows that judges, like anybody else, have
their weaknesses. She will not shrink from the conclusion, if
it can be justified objectively, that things that they have said
or done or associations that they have formed may make it
difficult for them to judge the case before them impartially.”
[our emphasis]

It's here btw

https://www.judiciaryni.uk/files/judiciaryni/decisions/Downey%20%28Patricia%29%20Application%20for%20Judicial%20Review%20and%20in%20the%20matter%20of%20a%20decision%20of%20a%20Coroner%20dated%2019%20February%202021.pdf

[55] As the authorities make plain the steps in the requisite analysis are that the court
(i) must ascertain all the circumstances which have a bearing on the suggestion that the
tribunal was biased and (ii) it must ask itself whether those circumstances would lead a
fair-minded and informed observer to conclude that there was a real possibility that the
tribunal was biased.

I was thinking the same!

From NW

[42] In Lewis v Redcar and Cleveland [2009] 1WLR 83, the court of appeal provided
guidance as to the approach to be adopted in cases involving apparent bias and
predetermination as a form of bias. All three members of the court of appeal delivered
written judgments. Pill, LJ reviewed a number of the authorities delivered since the
decision in Porter v Magill. With regard to the Porter v Magill test and the correct
approach of the court to the possibility of predetermination, Pill LJ stated as follows:
“68. … Where reference was made to the fair-minded
observer, the court was putting itself in the shoes of that
observer and making its own assessment of the real
possibility of predetermination. That, I respectfully agree, is
the appropriate approach in these circumstances. The court
with its expertise, must take on responsibility of deciding
whether there is a real risk that minds were closed.”

[43] In Lewis, Rex LJ agreed with Pill LJ’s assessment. He also considered the
distinction between disposition and predetermination and considered the test to be
applied for distinguishing between the two:
“89. It is common ground that in the present planning
context a distinction has to be made between mere
disposition, which is legitimate, and the predetermination
which comes with a closed mind which is illegitimate.
However, there is a dispute between the parties as to the
appropriate test to be applied for finding the illegitimate
closed mind.”

[44] The competing tests were (1) actual bias or predetermination:- 'a closed mind in
fact’ and (2) a test based on ‘the appearance of things. (In other words, the Porter v
Magill test): would it appear to the fair-minded and informed observer that there is a
serious possibility of the relevant bias, viz predetermination?” [emphasis added].
Rex LJ favoured the latter - the test based on the appearance of things:
“96. So, the test would be whether there is an appearance
of predetermination in the sense of a mind closed to the
planning merits of the decision in question. Evidence of
political affiliation or of the adoption of policies towards the
planning proposal would not for these purposes by itself
amount to an appearance of the real possibility of

predetermination or what counts as bias for these purposes.
Something more is required, something which goes to the
appearance of a predetermined closed mind in the decision
making itself. I think that Collins J put it well in R (Island
Farm Development Limited) v Bridgend County Borough
Council [2007] LGR 60 when he said at paragraphs 31-32:
“31. The reality is that councillors must be
trusted to abide by the rules which the law lays
down, namely that, whatever their views, they
must approach their decision-making with an
open mind in the sense that they must have regard
to all material conditions and be prepared to
change their views if persuaded that they should
… unless there is positive evidence to show that
there was indeed a closed mind, I do not think
that prior observations or apparent favouring of a
particular decision will be suffice to persuade a
court to quash the decision.

Has SD just Googled 'unsuccessful recusal applications ' and is now throwing them all in?!

Nick being in the room is a gift for us all. A true record.

And Naomi is doing what she does best - looking all all the pieces and completing the jigsaw. She would not have gone on this foot.

She knows she’s got something. Why else take this approach?

Sounds like it!

Yes, it's a proportionality thing.

I've had to deal with situations where individuals had to declare political activity including significant donations, and this wee woman declared that several years earlier she donated £50 to the Ulster Unionist Party, and I was like "no hen, you don't have to declare that", but she was adamant.

I'd be looking for something recent and significant.

Professor, unlike Dr, isn't a personal title - to be Professor you have to hold a chair at a university. So, which university - does anyone know? I've found a Professor Deborah Boyd at Lipscomb University Tennessee, which seems unlikely to be relevant. Then there's a Deborah Boyd who is Consultant in Oral & Maxillofacial Surgery at University Hospital Crosshous, Kilmarnock; it wouldn't be unusual for a medical consultant also to hold a university chair, but she's listed as Miss on her scot.nhs.uk page so it seems unlikely to be her. I'll keep looking...

From NW

SD takes J to par 45: "On this distinction between ‘predisposition’ and ‘predetermination’, Longmore
LJ stated:
“106. It is clear from the authorities that the fact that
members of a local planning authority are "predisposed"
towards a particular outcome is not objectionable see e.g.R v Amber Valley District Council, Ex Parte Jackson [1985] 1
WLR 298. …..
107. What is objectionable, however, is “predetermination”
in the sense I have already stated, namely that a relevant
decision-maker made up his or her mind finally at too early a
stage.”

SD this application is made on the flimsiest of evidence there are a few selective screenshots from the social media profiles Professor Boyd in which she endorses Pride and frankly so what. She is perfectly entitled to. There is a laughable allegation that PB has scrubbed her

I wonder if Professor Boyd did a name change at some point but seems counterintuitive for an academic

Got the hand shakes.

Am blaming the 4 coffees I had earlier.

Need to go and teach A-Level Chemistry now.

I looked her up on the day she started looking shifty and found the same... Did wonder why it was so difficult to locate her...

I think I had published the sum total of 2 posters when I got married and I still didn't change my name.

Councillors are very different to judges. A judge who was “predisposed” to a particular outcome would be very objectionable, regardless of what the court said of a councillor with the same attribute.

There is the reasonable observer test.

Obviously we all think she may be biased but are we reasonable observers?

I'm going to guess no one has "recuse the whole panel" on their bingo card for this tribunal?

Most keep their maiden names for work as it tallies with their publication record. Many keep the Prof title when retired, officially emeritus ir not, sometimes it's a vanity thing, and they earned it at the time so why not. For most, by which I mean practically all, academics, it should be easy to find their Google scholar record, h factor, current institution, cv, any submissions in REF/RAE exercises etc. They are hardly hidden!