A Court of Appeal judge has refused an application to recuse himself from an employment equality appeal, finding that complaints made against him did not provide grounds for a reasonable observer to apprehend that the appellant would not receive an impartial hearing.
Justice Donald Binchy delivered the ruling on 21 July 2023. He said he agreed with the analyses and conclusions in separate judgments by Justices Whelan and Allen on the recusal application. They also agreed with his ruling.
The appellant, Olumide Smith, applied at the start of the appeal hearing on 16 March 2023 for Justices Allen and Binchy to step aside. One ground concerned two complaints he had made against Binchy to the Judicial Conduct Committee of the Judicial Council.
The Registrar had found the first complaint inadmissible on 13 January 2023, and Smith sought a review. The Registrar found the second complaint inadmissible on 29 March. On 15 June, the Complaints Review Committee found both complaints inadmissible. Binchy said the complaints’ outcomes meant that the basis for recusal founded on them had fallen away, unless the fact that complaints had been made was itself enough to require recusal.
Binchy said the complaints process and the recusal application were separate matters. Applying the objective test of whether a reasonable person, aware of the circumstances, would reasonably apprehend that Smith would not receive a fair hearing from an impartial judge, he considered the substance of the complaints.
The first complaint made general allegations of prejudice, bias, racism and discrimination against Binchy and a Court of Appeal panel. Binchy said it gave no particulars of anything allegedly said or done that could give a reasonable observer grounds to find substance in those accusations. He said he could identify no complaint in the second document beyond an objection to his sitting on the panel.
Binchy concluded that the complaints contained no details of conduct that could support an apprehension of partiality. He refused the application for his recusal. The ruling addressed that application; it did not determine the underlying employment equality appeal.