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The Court of Appeal has handed down judgment in Lawal v Northern Spirit, upholding (by a majority) the EAT's decision that it is legitimate for part-time judges in the EAT to also appear as advocates in the EAT, in front of a lay member they have previously sat with. (note: for the EAT decision, please see my bulletin of 31st January 2002)
Does a real possibility of bias exist when a part-time judge of the Employment Appeal Tribunal appears as an advocate before the Appeal Tribunal chaired by another judge sitting with two lay members, one or both of whom have previously sat with the part-time judge?
Majority Decision (Mummery LJ and Phillips MR)
There is no real risk of bias at common law, and no lack of a fair trial under Art 6(1) of the European Convention on Human Rights. The lay members are educated and intelligent people, with minds of their own, and they are quite capable of distinguishing the role of a neutral presiding judge from that of a partisan advocate. To suggest a lay member cannot tell the difference is condescending and wrong.
Minority Decision (Pill LJ)
It is not appropriate that part-time judges appear as advocates in front of lay members with whom they have sat. The lay members look to the judge for guidance and there is a special degree of trust and confidence reposed in him. To allow him then to appear as an advocate is likely to diminish public confidence in the administration of justice.