Content area
Full Text
(ProQuest: ... denotes non-US-ASCII text omitted.)
THE preservation of confidence in the integrity of official decision-making demands that, as Lord Hewart C.J. famously put it in Ex parte McCarthy [1924] 1 K.B. 256, "justice should not only be done, but should manifestly and undoubtedly be seen to be done". A rule against apparent, not just actual, bias is therefore necessary. As such, the rule can operate, according to Porter v Magill [2001] UKHL 67, [2002] 2 A.C. 357, on the basis of a real possibility (as opposed to probability) of bias, the existence of which falls to be judged by reference not to the court's perceptions, but to those of the "fair-minded and informed observer". That formulation, however, begs more questions than it answers. What are the notional observer's characteristics? Exactly how "informed" is she? And (therefore) to what extent may her perception diverge from that of the court? These questions, which have vexed the courts since Porter was decided over a decade ago, were recently confronted by the Judicial Committee of the Privy Council in Belize Bank Ltd. v Attorney General of Belize [2011] UKPC 36.
The case centred upon a US$20m sum transferred by Venezuela to Belize. Belize used half of this to repay a government-guaranteed loan that had been advanced to a third party by Belize Bank Ltd ("BBL"). However, following a general election in 2008, the new Prime Minister of Belize characterised this as an "improper diversion" of funds, on the ground that the whole of the US$20m sum had been intended to support the provision of a housing and sporting complex. He vowed to "bring to account those who have robbed the people of this country", accusing members of the previous government of "outrageous" and "highly immoral" behaviour that was "the product of a conspiracy". Following a statutory investigation by the Central Bank of Belize, a directive was issued requiring BBL to transfer the contested US$10m to the government. BBL exercised its statutory right of appeal. In line with the relevant legislation, the board responsible for hearing the appeal was chaired by a judge appointed by the Chief Justice; its other two members, both of whom had worked at the Central Bank, were appointed...