House of Lords

Published November 5, 2008

Helow v Secretary of State for the Home Department and Another

Before Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Cullen of Whitekirk and Lord Mance

Speeches October 22, 2008

A judge’s membership of a Jewish association whose magazine had expressed partisan views against Palestinian causes did not in itself imply that the judge shared or endorsed such views so as to have raised the possibility of bias and want of impartiality when determining an immigration appeal by a Palestinian activist.

The House of Lords so held in dismissing an appeal by the petitioner, Fatima Helow, against the interlocutor an Extra Division of the Inner House of the Court of Session (Lord Nimmo Smith, Lord Kingarth and Lord Kirkwood) (2007 SC 303) dismissing her application that it set aside under its supervisory jurisdiction an interlocutor of the Lord Ordinary, Lady Cosgrove, refusing her petition for statutory review of the refusal of her asylum claim.

The petitioner, a Palestinian refugee living in Lebanon, claimed that she had been in the Sabra/Shatila refugee camp in 1982 and that in 2001 she had assisted Belgian lawyers bring an action in Belgium against Ariel Sharon which had alleged his involvement with a massacre at that camp.

On seeking asylum in the United Kingdom she had claimed that that involvement, together with political opinions imputed to her as a supporter of the PLO, put her at risk from Israeli, Syrian and Lebanese agents if she were returned to Lebanon.

Her claim was refused by the Secretary of State for the Home Department and his decision was upheld by the adjudicator. The Immigration Appeal Tribunal refused the petitioner’s leave to appeal whereupon she sought a statutory review of that decision under section 101 of the Nationality, Immigration and Asylum Act 2002.

The review, which was to be determined by a single judge by reference to written submissions, came before Lady Cosgrove, whom the petitioner’s advisers later discovered was a member of the International Association of Jewish Lawyers and Jurists. The association’s magazine Justice, which was circulated to all members, had carried a number of extreme pro-Israeli articles and pronouncements by its president.

Mr Mungo Bovey, QC and Mr Scott Blair for the petitioner; Lord Davidson of Glen Clova, QC, Advocate-General for Scotland, Mr Colin Tyre, QC and Ms Ailsa Carmichael for the secretary of state; Mr Gerry Moynihan, QC, for the Lord Advocate, the second respondent.

LORD MANCE said that the petitioner had claimed that a fair-minded observer would think that the views put forward by the association represented views which the judge shared as a member or, alternatively, that she may have been influenced by those views.

The material relied on by the petitioner was selective rather than representative. There were many other articles on subjects likely to have been of legal interest.

Further, any approach which assumed that a member of the association would have read all or even most of the selected material was suspect. It was common experience for a member of an organisation receiving its regular publication to do little more than glance at its contents page, reading only the occasional item appearing to be of particular interest.

His Lordship also rejected the claim that, by virtue of her membership and receipt of the magazine, the judge might have been influenced, albeit subconsciously, by the content and general attitude of some of the complained-of material, even if one assumed that she had read and digested such material.

Judges read a great deal of material which was designed to influence them, but which they were trained to analyse and to accept, reject or use as appropriate.

Lord Hope, Lord Rodger, Lord Walker and Lord Cullen delivered concurring speeches.

Solicitors: Drummond Miller LLP, Edinburgh; Solicitor to the Advocate-General for Scotland, Edinburgh; Solicitor to the Scottish Executive, Edinburgh.

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