Information Note on the Court’s case-law 15

February 2000

McGonnell v. the United Kingdom - 28488/95

Judgment 8.2.2000 [Section III]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Independence and impartiality of the Bailiff in Guernsey: violation

Facts : In 1982 the applicant purchased a vinery in Guernsey. He was refused planning permission for residential use but in 1986 he move d into a converted packing shed on the land. He made representations at a planning inquiry concerning a detailed development plan (DDP), but in his report the planning inspector concluded that a dwelling on the applicant's land would be an intrusion into t he agricultural/horticultural hinterland. The plan was adopted by the island's legislature, the States of Deliberation, in 1990 and the applicant's retrospective application for planning permission to convert the shed to a dwelling was rejected by the Isla nd Development Committee (IDC), as the site was zoned as "developed glasshouse area" on which residential development was not permitted. He was subsequently convicted of illegal change of use and fined £100 and in June 1993 the IDC's application for permis sion to carry out the necessary work to remedy the breach of planning legislation was granted by the Royal Court, comprising the Bailiff, who determines questions of law, and three Jurats, who determine matters of fact. As well as being head of the island' s administration and president of the States of Deliberation, the Bailiff presides the Royal Court and the Court of Appeal. Moreover, the Court of Appeal has found in a separate case that there is no structural conflict between the Bailiff's duties in the Royal Court and the States of Deliberation. In this particular case, he had in fact presided over the States as Deputy Bailiff at the adoption of the DDP in 1990. In October 1994 a further application for change of use was rejected by the IDC and in June 1 995 the Royal Court, comprising the Bailiff and seven Jurats, unanimously dismissed his appeal, without giving reasons.

Law : Government's preliminary objection (non-exhaustion): The Government's submissions were not raised before the Commission and the Gov ernment are therefore estopped from relying on them.

Article 6 § 1: Given the clear statement of the Court of Appeal that the Bailiff's constitutional functions in connection with the States do not impinge on his judicial independence and the fact that a d omestic challenge was not only not pursued by the applicant but was not raised by the Government until a late stage, the applicant's failure to challenge the Bailiff cannot be said to have been unreasonable and cannot amount to a tacit waiver of his right to an independent and impartial tribunal. As to the role of the Bailiff, the sole question is whether he had the required "appearance" of independence or the required "objective" impartiality (there being no allegation of subjective bias). The Bailiff's fu nctions are not limited to judicial matters and the Court does not accept that when he acts in a non-judicial capacity he merely occupies positions rather than exercising functions - even a purely ceremonial role must be classified as a "function". The Bai liff in this case had personal involvement, firstly as Deputy Bailiff when the DDP was adopted and subsequently when he presided over the Royal Court in determining the applicant's planning appeal. Any direct involvement in the passage of legislation or of executive rules is likely to be sufficient to cast doubt on the judicial impartiality of a person later called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules. The mere fact that the Deputy Bailiff presided over the States of Deliberation when the DDP was adopted is capable of casting doubt on his impartiality when he subsequently determined, as sole judge of the law in the case, the planning appeal. The applicant thus had legitimate g rounds for fearing that the Bailiff may have been influenced by his prior participation and that doubt, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court.

Conclusion : violation (unanimous).

Article 41: The Court considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered. It made an award in respect of costs.

© Council of Europe/European Cour t of Human Rights This summary by the Registry does not bind the Court.

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