“NOT ALL JUDGES OR COUNSEL ARE HUMOURLESS AUTOMATONS”: NO JUDICIAL BIAS WHEN EVIDENCE GIVEN BY WAY OF A SONG
It is not often that appeals over planning decisions make their way to this blog. It must be even rarer for such appeals to consider the question and appropriateness of humour (and song) in the judicial process. That is what we see in the judgment of Sir Duncan Ouseley in Satnam Millenium Ltd v Secretary of State for Housing, Communities And Local Government  EWHC 2631 (Admin).
“Not all judges or counsel are humourless automatons either.”
The claimant was seeking review of a decision not to allow a housing development. That application was successful. However part of the claimant’s case was bias on the part of the enquiry inspector. The judgment contains an extended consideration, and then rejection, of the allegations of bias.
EVIDENCE GIVEN IN SONG
There is a detailed discussion of the allegations of bias. One issue was that the inspector had allowed an objector to give her evidence in song.
Mr Clisby also described the evidence which a member of the public gave in song: he found it cogent, to the point and memorable. No one had objected to her doing so. That was followed by the short joke made by a witness as he walked to the witness chair that he would give his evidence in dance, and the interchange about northern humour, again to which no one objected. It was but a brief interlude in the “otherwise generally formal nature of the Inquiry.”
HUMOUR CAN SOMETIMES BE PART OF THE JOB…
The grumbling from Mr Griffiths about a resident giving her evidence in song, followed by the quick interchange over giving evidence in dance and northern humour, rather illustrated my concern about where he was pitching his concern. This was but a moment of light heartedness, essentially initiated by the witness, and briefly responded to by the Inspector. Some Inspectors might have kept silent; but there is nothing in this at all. Not all judges or counsel are humourless automatons either. Although it would avoid some problems if Inspectors were, it could create others at an Inquiry with feelings running high and large numbers of the public attending. This was all very much part of a legitimate judgment about how to run a difficult Inquiry in those venues, with the facilities, and participants there were.
THE APPROPRIATE TEST
ir-minded observer, in possession of the full facts, knows all of this. The test is not how matters appeared to Satnam, or how they appeared to a fair-minded person simply observing the process from above, seeing all that went on. The fair-minded observer knows what the evidence before the court shows happened and did not happen; that includes what was said, where the evidence permits that to be known or inferred.
I cannot see that a degree of chattiness, or avoidance of the appearance of being rude, such as others may adopt, is indicative of a possibility of bias, especially as I accept that the same approach was applied by the Inspector to Satnam’s team. I accept that the Inspector could have insisted on walking ahead on his own, or ensuring that WBC, Satnam and local residents always had someone in earshot of any conversation, or he could have insisted on walking in silence, gathering representative participants about him when he stopped to view some feature of interest. That degree of formality avoids the sort of suspicion which has arisen here. But I am satisfied that the evidence shows that the conversations, when Satnam were not present, were either not about the case at all, or covered procedural or administrative matters, which were not of any interest to Satnam, and gave rise to no issues when their import manifested itself at the Inquiry.
The Satnam evidence complains that evidence was given by local residents, but, if properly so characterised, the evidence they gave was of course evidence given in the presence and hearing of one of the Satnam team. Satnam gave no evidence, gleaned from other sources or inference, of anything of substance being said which they were unaware of during the site visit, and only discovered later. Nor does any such point feature in the IR.
Satnam’s concern that the participation of the residents may have prolonged the site visit “possibly unnecessarily” is not evidence of possible bias. I do not see the opportunities which the Inspector gave to the residents on the site visit as showing more than a determination that they should be able to participate fully and to feel that they had done so; I accept his evidence that they were not an organised group and varied greatly in their confidence and understanding of procedures at the site visit and later. That is in line with the guidance Inspectors have.