• In the case of Porter v Magill [2001] UKHL 67 [2002] 2 ac 357, in cases of alleged bias, the test under Article 6(1) of the European Convention on Human Rights is whether the fair minded and informed observer would come to the conclusion that there was a real possibility that the tribunal was biased, after taking into consideration.

Facts of the Case

  • Leader and deputy of the Conservative Party created a plan to sell council housing in marginal wards under section 32 of the Housing Act 1985.
  • This was done with the intention that homeowners would vote for the Conservative Party over the council tenant counterparts.
  • The lawfulness of the Conservative Party’s plan was investigated by the auditor who reiterated his initial findings against the councillors in a BBC interview deemed controversial.
  • The auditor’s impartiality was questioned, under the right of access to a fair and impartial tribunal by Article 6(1) of the European Convention on Human Rights, by both the leader and deputy of the Conservative Party.

Issues

  • Could it be argued that the auditor acted in a biased manner?

Held by the House of Lords

  • The House of Lords allowed the appeal and found that the auditor’s decision was not biased.

Lord Hope of Craighead

  • His Lordship emphasised that, based on the facts, it could not have been proven that the auditor was biased as he portrayed that his findings were merely initial findings.
  • “The queston is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” [103]
  • The auditor’s conduct must be seen in the context of the investigation which he was carrying out, which had generated a great deal of public interest. A statement as to his progress would not have been inappropriate. His error was to make it at a press conference. This created the risk of unfair reporting, but there was nothing in the words he used to indicate that there was a real possibility that he was biased. He was at pains to point out to the press that his findings were provisional.” [105]
  • “I would also hold that the right in article 6(1) to a determination within a reasonable time is an independent right, and that it is to be distinguished from the article 6(1) right to a fair trial. As I have already indicated, that seems to me to follow from the wording of the first sentence of the article which creates a number of rights which, although closely related, can and should be considered separately. This means that it is no answer to a complaint that one of these rights was breached that the other rights were not. To take a simple example, the fact that the hearing took place in public does not deprive the applicant of his right to a hearing before an independent and impartial tribunal established by law.” [108]

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