Fotheringham, Re Judicial Review [2008] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2008] CSOH 170

P1476/08

OPINION OF LORD PENTLAND

in the Petition of

KEVIN FOTHERINGHAM

Petitioner;

For

Judicial Review of a decision of the Scottish Football Association Discipline Appeals Tribunal

________________

Petitioner: Dunlop; Simpson & Marwick

Respondents: O'Neill QC; Burness

12 December 2008

Introduction

[1] At the First Hearing of this petition for Judicial Review on 20 and 21 November 2008 there was no significant dispute about the relevant facts and the parties, therefore, agreed that it was appropriate for the court to determine at this stage the substantive issues raised. I should record that before the First Hearing the parties decided to lodge written submissions. These were helpful and enabled the oral debate to be completed comfortably in less than two days.

The Facts

[2] The petitioner is described in the petition as a semi-professional footballer contracted to East Fife Football Club ("East Fife"). The respondents to the petition are (1) the Scottish Football Association ("the SFA") and (2) the Scottish Football Association Disciplinary Appeals Tribunal ("the Appeals Tribunal"). Only the SFA was represented at the First Hearing.

[3] On 2 January 2008 the petitioner was playing for East Fife in a Scottish Football League Championship third division match against Stranraer Football Club ("Stranraer"). The match took place at East Fife's home ground at New Bayview Stadium, Methil. At that time East Fife were at the top of the third division and Stranraer were in second place. Only the team which finished in first place was guaranteed promotion that season. East Fife won the match by two goals to one. They thereby extended their lead at the top of the third division to fifteen points, with eighteen matches still to be played. East Fife went on to win the third division championship and were duly promoted to the second division.

[4] At the end of the match there occurred what is referred to in the petition as an altercation involving a number of players from both teams. This incident appears to have started at the side of the pitch and to have spilled into the tunnel leading to the changing rooms. A number of players, officials from both teams and supporters were in the tunnel at the time.

[5] A flavour of the heated atmosphere in the tunnel is given in the match report provided by the assistant referee, Mr Alasdair Ross. This report later came to play an important part in evidence before the Disciplinary Committee as I shall explain in due course. Part of Mr Ross' report reads as follows:

"The dressing room doors are almost opposite each other in the tunnel at New Bayview Stadium . . . . The players of both clubs headed towards their respective dressing room doors, but only half entered their dressing rooms, stopping to stand in their respective doorways and continue to pass verbal comments to each other in a confrontational and aggressive manner. While standing in the tunnel, directly between the sets of players, I shouted to all the players to get into their respective dressing rooms. By this time, other players and officials from both clubs were making their way into the tunnel from the field of play and heading towards their respective dressing rooms, and the tunnel area was becoming very congested. With Stranraer FC players having to pass the home dressing room door to get to their own dressing room, various heated exchanges were taking place, although little of what was being said or shouted was audible. However, I did hear the phrase "black bastard" coming from the direction of the home dressing room door, although I could not identify who said the words. At the same moment as this, the Stranraer FC number 15, Andrew Gibson, headed very deliberately towards the home dressing room door, instead of walking past it, and he violently kicked at the first home player that he could get to. This incident happened directly in front of me and I had a very clear view of it....."

[6] After the match one of the Stranraer players, Mr Gregory Tade, who is originally from the Ivory Coast, alleged that the petitioner had called him a "black bastard" during the incident in the tunnel. The petitioner has always denied that he did any such thing.

[7] By letter dated 5 January 2008 Stranraer wrote to the SFA making a complaint of "Unacceptable Conduct" against the petitioner on the ground that he had racially abused Mr Tade in contravention of Article 3.3 of the General Provisions set out in the SFA's Disciplinary Procedures for Players' Misconduct. The letter alleged that the petitioner had called Mr Tade a "black bastard" at the end of the match as the players were entering the tunnel and that this had been witnessed by, amongst others, two of the Stranraer players, Michael Mullen and Andrew Gibson. The letter also said that Mr Gibson had taken exception to the petitioner's abuse and had kicked at the petitioner striking him on the lower buttocks. It may be noted that Mr Gibson later received a suspension for one match because of this conduct. Signed statements from Mr Tade, Mr Mullen and Mr Gibson were submitted with the letter.

[8] In his statement dated 5 January 2008 Mr Tade said:

"After the game was over I felt that I had to speak with (the petitioner) and have him try to explain his actions towards me. As I spoke to him he seemed to lose his temper and called me a "black bastard". Andrew Gibson was closer to (the petitioner) and he made towards him; someone put their arms round Andrew Gibson's and he kicked out at (the petitioner) striking him on the lower buttocks."

[9] In his statement of the same date Mr Gibson said:

"After the game was finished and we were leaving the field of play making towards the dressing room (Mr Tade) approached (the petitioner) asking him to explain his treatment of him. (The petitioner) called (Mr Tade) a "black bastard". I took exception of (sic) this and lunged towards (the petitioner) but someone put their arms around me resulting on (sic) my foot being raised and striking (the petitioner) on the lower abdomen."

[10] In his statement of the same date Mr Mullen said:

"(The petitioner) called (Mr Tade) a "black bastard" and a melee (sic) ensued resulting in Andrew Gibson kicking out at (the petitioner)"

[11] On 16 January 2008 Mr Drew Herbertson, the head of the Disciplinary and Referee Department at the SFA wrote to the petitioner to advise him of the complaint made by Stranraer. The letter said that in view of the "potentially racist element of your alleged comment" the petitioner was charged with Unacceptable Conduct under the Disciplinary Procedures. Mr Herbertson explained that the matter was being referred to the Disciplinary Committee for investigation and/or consideration and that the petitioner was called to appear before the committee on 29 January 2008. The letter advised the petitioner, amongst other things, that he had the right to appear and make representations, to be accompanied by an authorised representative of the Scottish Professional Footballers' Association or any accredited official of his club and to call any witness in his defence. The letter went on to say that in accordance with the provisions of the Disciplinary Procedures, the petitioner was entitled to respond within seven days with his comments on the correspondence from Stranraer and the reports of the referee and the assistant referee. East Fife, to whom the letter was copied, were also requested to provide their comments on the correspondence and reports within the same period. The letter asked the petitioner to note that on receipt of his comments and those of East Fife, a copy of each response, together with the reports from the match officials, would be issued to Stranraer. It went on to say that Stranraer were being invited to send a representative to attend the hearing to make further representation in support of the complaint. The letter then said:

"The players who have provided statements will be called to the hearing to give evidence, the referee and assistant referee are similarly being called to attend. All parties will be provided with copies of all correspondence prior to the hearing."

[12] The Disciplinary Committee duly met at Hamden Park on 29 January 2008 to consider a number of matters, including the complaint against the petitioner. The Disciplinary Committee is one of the SFA's Standing Committees (see Standing Order 20 - SFA Handbook 2007/2008 page 157). At the material time the Disciplinary Committee had ten members, all of whom were in attendance for consideration of the complaint against the petitioner. The chairman of the Disciplinary Committee was Mr Richard Shaw MBE. Mr Shaw was also the elected secretary of the Southern Counties Football Association ("Southern Counties"). Southern Counties is, and was at the material time, one of nine regional football associations affiliated to the SFA. The membership of Southern Counties comprised nine football clubs from South West Scotland, including Stranraer. According to the petitioner's counsel, Stranraer was the third largest of these nine clubs. Southern Counties is an association whose primary purpose is to represent the interests of the nine clubs referred to. Article 46 of the SFA's Articles of Association provides that the nine affiliated associations shall be entitled to have representation on the SFA's Council. Article 46.1 provides, so far as relevant for present purposes, that each affiliated association shall be entitled to nominate one representative to the Council. Mr Shaw is and was at the material time the representative nominated for this purpose by Southern Counties.

[13] What transpired at the meeting of the Disciplinary Committee can be seen from the minutes which Mr Herbertson prepared in early March 2008 and from the reasons (drafted by him at around the same time) which were later produced and intimated in light of the appeal taken by the petitioner against the Disciplinary Committee's decision. For present purposes the important points are as follows. The petitioner was accompanied during the hearing by Mr Sydney Collumbine, the Chief Executive of East Fife and Mr Paul Stewart, a fellow player from East Fife. Mr Tade was accompanied by Mr David McMillan, Stranraer's Treasurer. Reports were available from the match referee, Mr George Salmond and, as already mentioned, from the assistant referee, Mr Ross. Mr Ross attended the hearing. Written representations from both clubs were before the Disciplinary Committee. Neither Mr Mullen nor Mr Gibson attended the hearing, although their signed statements (referred to above) were considered by the Disciplinary Committee. So too was a signed statement from Mr Stewart, as well as other signed statements. From Stranraer, Mr McMillan and Mr Tade addressed the committee. They were followed by the representatives from East Fife, including Mr Stewart. Members of the committee asked questions of those in attendance, including the assistant referee. Mr Ross, the assistant referee, told the committee that he had heard the alleged racist comment, "black bastard", coming from the direction of the home dressing room door from his position mid-way between the two dressing room doors, spaced four yards apart, inside the stadium. In answer to a question from the chairman Mr Shaw, Mr Ross explained that Mr Gibson appeared to react to the remark coming from the direction of the home dressing room door and violently kicked the first home player he could get to. In relation to Mr Gibson's statement that he kicked the petitioner, another member of the committee asked Mr Ross if he was able to confirm the identity of the player who was kicked. Mr Ross said that having recognised the petitioner at the hearing, he was able to confirm that Mr Gibson had kicked the petitioner on the leg. Mr Shaw asked Mr Tade if he was in any doubt regarding his statement that the alleged racist remark was made by the petitioner. Mr Tade is recorded in the minutes as having confirmed to the committee that he was in no doubt and was 100% sure. The minutes also record the petitioner's position as being that he "never said anything". According to the minutes, the committee decided that in view of the nature of the comments he had made to Mr Tade the petitioner was guilty of misconduct of a sectarian, racist, sexual or other discriminatory nature ("Unacceptable Conduct").

[14] The reasons eventually issued by the Disciplinary Committee some seven days before the appeal hearing record that it was clearly evident that there were conflicting sides to the story - strong conviction from Mr Tade and from Stranraer that the racist comment had been made and an equally strong denial of that by the petitioner and East Fife. The reasons go on to say that the Committee was of the opinion that Mr Tade was sincere in his giving of evidence and note that it was established in questioning of him that he was 100% certain that it had been the petitioner who had made the comment to him. He had been precise in his description of the incident and its locus. I shall have more to say about the quality and content of the reasons later.

[15] To reflect what it regarded as the serious nature of the petitioner's Unacceptable Conduct, the Disciplinary Committee decided to suspend him from playing in the next eight East Fife first team competitive matches. As the petitioner was also a registered referee with the SFA, this registration was suspended for the duration of his playing ban.

[16] The SFA wrote to the petitioner on 30 January 2008 to advise him of its decision and of his right to appeal. An appeal against the decision of the Disciplinary Committee lies to the Disciplinary Appeals Tribunal ("the Appeals Tribunal") in terms of Part 4 of Section 6 of the Disciplinary Procedures for Players' Misconduct. The petitioner then instructed solicitors, who intimated to the SFA on 31 January 2008 that he intended to appeal and enclosed a Notice of Appeal. There were six grounds of appeal set out in the notice. Those ultimately argued at the subsequent appeal hearing were, in short, to the effect that (a) Mr Shaw was tainted by apparent bias; (b) the hearing was unfair because it was not open to the Disciplinary Committee to take account of written statements provided by witnesses; (c) the hearing was also unfair because the petitioner had been denied the right to cross-examine witnesses and (d) the reasons given by the Disciplinary Committee for its decision were inadequate.

[17] There was some delay in arranging an appeal hearing due to illness of an SFA official. The hearing originally fixed for 28February 2008 had to be postponed. Eventually (after a further postponement) the appeal hearing took place on 7 May 2008. The judgment issued on 5 August 2008 by the Appeals Tribunal explains that at the hearing of the appeal the Disciplinary Committee appeared as a party and was represented by counsel. The petitioner was also represented by counsel. Written submissions were exchanged in advance. The hearing lasted between about 7 pm and 10 pm. In accordance with paragraph 4.5 of the Appeal Rules (SFA Handbook page 277) the Appeals Tribunal comprised an independent chairman, a solicitor Mr Steven Miller; the president of the SFA Mr George Peat; and a representative of the Scottish Professional Footballers' Association. At the end of the appeal hearing the Tribunal deliberated for about 30 minutes, reached provisional conclusions and unanimously decided to call for further information. This was in due course provided by Mr Herbertson in his capacity as secretary of the Appeals Tribunal. There ensued certain further procedure involving the exchange of supplementary submissions between the parties; nothing turns on this.

[18] In their judgment issued on 5 August 2008 the Appeals Tribunal identified the disputed issues in the form of three questions which fell to be answered in disposing of the appeal. These were stated to be:

1. Should Mr Shaw have recused himself (withdrawn) from the committee business on 29 January 2008 because of an interest which made him biased or potentially biased?

2. Was the overall process fair and, specifically, should the player or his representative have been given the opportunity to cross-examine all those who provided statements implicating him?

3. Were the reasons of the Committee sufficient and, specifically, did they leave the reader with real, substantive doubt (cf Koca v Secretary of State for the Home Department 2005 SC 487) about the process and outcome of 29 January 2008?

[19] At the end of its judgment the Appeals Tribunal set out the following conclusions:

"1. We are not convinced that Dick Shaw was biased or potentially biased as was alleged, but, even if he had been, we are persuaded that he was not in a position to influence the outcome of the Committee's decision our having had the benefit of information about the votes cast by the committee members (9:1 in favour of upholding the complaint). We are fortified in this view by the case of Pullar v UK 22 EHRR 391 cited to us by the Claimant's Counsel. (It should be noted that the correct outcome of the vote was in fact 9 for guilty and one abstention - see Mr Herbertson's letter of 17 June 2008).

2. We consider that the overall process was fair. We are satisfied that no right to cross-examine witnesses exists in the procedures, nor that any such general right can be derived from the case law cited to us.

3. The reasons of the Committee were sufficient. Whilst we feel that it is regrettable that there was such a delay in producing those reasons, we do not see anything improper, far less sinister in that delay. We consider that those reasons more than adequately reveal the deliberations of the Committee and, moreover, that those reasons leave us with no real, substantive doubt about the process and outcome on 29 January 2008."

In the circumstances the Appeals Tribunal decided unanimously to refuse the appeal.

[20] On or about 12 August 2008 the petitioner commenced the present proceedings. He seeks reduction of the decisions of the Appeals Tribunal and of the Disciplinary Committee. I understand that the suspensions imposed on the petitioner by the Disciplinary Committee were themselves suspended pending determination of the appeal and have remained in suspension to await the outcome of the present proceedings.

The grounds of challenge

[21] The petitioner challenged the decisions referred to on the following grounds. He said that the chairman of the Disciplinary Committee, Mr Shaw, ought to have recused himself because he was not objectively impartial. The decision of the Appeals Tribunal on this issue was flawed because the presence of nine other members was insufficient to overcome the problem arising from Mr Shaw's lack of objective impartiality. Further, the appeal itself could not cure the difficulty because it too was not decided by an impartial hearing due to the involvement in it of the President of the SFA as one of its members. This was said to involve a lack of objective impartiality in view of the fact that the Disciplinary Committee had chosen to participate in the appeal hearing. Even the right to seek judicial review could not save matters because this did not allow for a full re-hearing of the case with the result, according to the petitioner, that unless the decisions in question were reduced, there would never have been a fair and proper adjudication by an objectively impartial tribunal of the central issue, namely whether or not the petitioner had in fact racially abused an opponent.

[22] The petitioner also challenged the fairness of the procedure before the Disciplinary Committee on the ground that Mr Gibson and Mr Mullen had not been present to give evidence and to be cross-examined. This was said to be contrary to a legitimate expectation aroused by the statement contained in the SFA's letter to the petitioner of 16 January 2008 that "the players who have provided statements will be called to the hearing to give evidence". Moreover, the Disciplinary Committee did not have power in terms of its rules to admit evidence given by means of written statements. The rules as well as general considerations of fairness required that the petitioner be given the opportunity to cross-examine his accusers, failing which the written statements had to be excluded from consideration.

[23] Finally, the petitioner argued that the reasons provided by the Disciplinary Committee for its decision were insufficient. Because they were produced at a late stage and, in particular, after the grounds of appeal had been intimated, the reasons had to be closely scrutinised. Especially when read in that way, they were not such as to leave the reader with no substantial doubt as to the basis for the decision. In particular, the treatment of what was said to be the exculpatory evidence given by Mr Stewart was inadequately reasoned.

The role of the court in relation to disciplinary decisions by sporting bodies

[24] The SFA did not seek to argue that the present proceedings were incompetent on the ground that decisions made by the Disciplinary Committee or the Appeals Tribunal were not, in principle, amenable to judicial review merely because they were decisions made by a sporting association. It was clearly correct for the SFA to take this stance, as a number of Scottish cases amply show. In the course of the First Hearing reference was made to St Johnstone Football Club Limited v Scottish Football Association 1965 SLT 171; Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386; Crocket v Tantallon Golf Club 2005 SLT 663 and Wiles v Bothwell Castle Golf Club 2005 SLT 785. In all these cases the Court of Session was willing to entertain, in the exercise of its supervisory jurisdiction, complaints about the rationality, procedural regularity or fairness of decisions made by sporting associations in regard to their members. Rather than challenging the competency of the present proceedings, the SFA preferred to take a somewhat more nuanced line and argued that in the context of disputes concerning sporting bodies, the courts were generally unwilling to allow decisions to be overturned on the basis of some minor procedural error which did not impact on the substantive fairness of the result ultimately reached. It was said that the courts afforded sporting bodies a certain margin of appreciation in coming to decisions relative to sporting matters. With this last formulation of the position, Mr Dunlop did not take issue.

[25] Of all the many authorities cited to me, I consider that the opinion of the Privy Council in Calvin v Carr [1980] AC 574 provides the most helpful guidance as to the approach which the court should take when considering an application to its supervisory jurisdiction arising from a challenge to disciplinary decisions made by a sporting association in circumstances where an initial hearing has been followed by an appeal. In Calvin the appellant was the part-owner of a horse which ran in a race in Australia. A stewards' inquiry found that there had been a breach of the Australian Jockey Club's Rules of Racing and the appellant was disqualified for a year with his membership of the Jockey Club being forfeited. He appealed to the committee of the club, but his appeal was dismissed. He then brought an action seeking a declaration that his disqualification was void on the basis that the stewards had failed to observe the rules of natural justice and that there was, accordingly, no jurisdiction in the appeal committee to hear his appeal. The opinion of the Privy Council, delivered by Lord Wilberforce, was that there was no absolute rule that defects in natural justice at an original hearing could or could not be cured by appeal proceedings, and that, where a person had joined an organisation or body and was deemed under rules of that organisation, in the context of which he joined, to have agreed to accept what in the end was a fair decision notwithstanding some initial defect, the task of the courts was to decide whether in the end there had been a fair result reached by fair methods. At pages 592 - 593 Lord Wilberforce set out the issues for the court in the following terms which I consider it helpful to set out in full in view of their authority and importance:

"There are, however, a number of typical situations as to which some general principles can be stated. First there are cases where the rules provide for a re-hearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned....

At the other extreme are cases, where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment, etc) the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage. This is the result reached by Megarry J in Leary v National Union of Vehicle Builders [1971] Ch.34. In his judgment in that case the judge seems to have elevated the conclusion thought proper in that case into a rule of general application. In an eloquent passage he said, at p. 49:

'If the rules and the law combine to give the member the right to a fair trial and the right of appeal why should he be told that he ought to be satisfied with an unjust trial and a fair appeal?....As a general rule....I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.'

In their Lordships' opinion this is too broadly stated. It affirms a principle which may be found correct in a category of cases: these may very well include trade union cases, where movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first - probably branch - level an essential condition of justice. But to seek to apply it generally overlooks, in their Lordships' respectful opinion, both the existence of the first category, and the possibility that, intermediately, the conclusion to be reached, on the rules and on the contractual context, is that those who have joined in an organisation, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect. In their Lordships' judgment such intermediate cases exist. In them it is for the court, in the light of the agreements made, and in addition having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or re-hearings will not be sufficient to produce a just result. Many rules (including those now in question) anticipate that such a situation may arise by giving power to remit for a new hearing. There may also be cases when the appeal process is itself less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a full and fair enquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision. These are all matters (and no doubt there are others) which the court must consider. Whether these intermediate cases are to be regarded as exceptions from a general rule, as stated by Megarry J, or as a parallel category covered by a rule of equal status, is not in their Lordships' judgment necessary to state, or indeed a matter of great importance. What is important is the recognition that such cases exist, and that it is undesirable in many cases of domestic disputes, particularly in which an enquiry and appeal process has been established, to introduce too great a measure of formal judicialisation. While flagrant cases of injustice, including corruption or bias, must always be firmly dealt with by the courts, the tendency in their Lordships' opinion in matters of domestic disputes should be to leave these to be settled by the agreed methods without requiring the formalities of judicial processes to be introduced."

[26] The approach set out by the Privy Council in Calvin was applied by the Court of Appeal in Modahl v British Athletic Federation Limited [2002] 1WLR 1192. At paragraph 61 Latham LJ said this, after referring to the passage I have cited from Lord Wilberforce:

"It seems to me that in cases such as this, where an apparently sensible appeal structure has been put in place, the court is entitled to approach the matter on the basis that the parties should have been taken (to) have agreed to accept what in the end is a fair decision. As Lord Wilberforce said, this does not mean that the fact that there has been an appeal will necessarily have produced a just result. The test which it is appropriate to ask is whether, having regard to the course of the proceedings, there has been a fair result. As Lord Wilberforce indicated, there may be circumstances in which by reason of corruption or bias or such other deficiency the end result cannot be described as fair. The question in every case is the extent to which the deficiency alleged has produced overall unfairness."

At paragraph 115 Mance LJ (as he then was) said:

"For my part, I would endorse the view that the present parties were implicitly agreeing to be bound by the ultimate outcome of the disciplinary process, taken as a whole and therefore including the independent appeal panel's determination....A conclusion that the process should be looked at overall matches the desirable aim of affording to bodies exercising jurisdiction over sporting activities as great a latitude as is consistent with fundamental requirements of fairness....".

[27] In my opinion, the observations contained in these passages from Calvin and Modahl provide helpful guidance for the purposes of the present case in which a sporting association has conducted a disciplinary hearing followed by an appeal. It seems to me that they support the view that a certain margin of respect should be extended by the courts to at least some disciplinary decisions taken by sporting associations. Whilst I acknowledge that it may be appropriate to extend such a latitude to sporting bodies, I consider that the test at the end of the day in a case such as the present is to ask whether, having regard to the course of the entire disciplinary proceedings (including the appeal), there has been a fair result. I will look at matters in that way at the end of this Opinion. Before doing that, however, I shall consider separately each of the grounds of review advanced by the petitioner and address in each case whether and, if so, to what extent the deficiency alleged has produced unfairness. Accordingly, I turn now to examine each of the grounds of challenge relied on by the petitioner.

Was the Disciplinary Committee biased because it was chaired by Mr Shaw?

[28] Parties were agreed that the modern test for bias was authoritatively set out in the speech of Lord Steyn in Lawal v Northern Spirit Limited [2003] ICR 856 at paragraph 14:

"14. In Porter v. Magill [2002] 2 AC 357 the House of Lords approved a modification of the common law test of bias enunciated in R v Gough [1993] AC 646. This modification was first put forward in In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700. The purpose and effect of the modification was to bring the common law rule into line with the Strasbourg jurisprudence. In Porter v Magill Lord Hope of Craighead explained:

'102. . . . The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700 to reconsider the whole question. Lord Phillips of Worth Matravers MR, giving the judgment of the court, observed, at p 711A-B, that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v Gough had not commanded universal approval. At p 711B-C he said that, as the alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since 2 October 2000 the English courts were required to take into account, the occasion should now be taken to review R v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. Having conducted that review he summarised the court's conclusions, at pp 726-727:

'85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.'

103. I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to "a real danger". Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question 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.'

The House unanimously endorsed this proposal. In the result there is now no difference between the common law test of bias and the requirements under Article 6 of the Convention of an independent and impartial tribunal, the latter being the operative requirement in the present context. The small but important shift approved in Magill v Porter has at its core the need for "the confidence which must be inspired by the courts in a democratic society": Belilos v Switzerland (1988) 10 EHRR 466, at para 67; Wettstein v Switzerland (Application No. 33958/96) para. 44; In Re Medicaments, at para 83. Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 200 CLR 488, 509, at para 53, by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious".

[29] In Helow v Secretary of State for the Home Department 2008 SLT 967 Lord Hope of Craighead summarised the assumed attributes of the fair-minded and informed observer in paragraphs 2 and 3 of his speech in the following terms:

"2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The "real possibility" test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

3. Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment."

[30] Mr Dunlop relied also on R v Altrincham Justices ex parte Pennington [1975] 1QB 549 in which the court ruled that justices should always disqualify themselves on hearing a case where they had an active interest in an organisation which was the victim of the alleged offence. At page 553A-C Lord Widgery CJ stated that the essence of the matter was that one was looking to see what connection there might be between the judicial officer and the victim of the offence alleged. This was because where there was an association with the victim of such a character as might erode the judicial officer's impartiality and detachment, then the bias which the rule was intended to prevent really came to the fore.

[31] Under reference to the speech of Lord Browne-Wilkinson in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1AC 119 at page 135, Mr Dunlop argued that Mr Shaw was not objectively impartial as a result of his involvement in "promoting the same causes in the same organisation" as Southern Counties. He contended also that because of the "associations that he had formed" (a reference to paragraph 2 of Lord Hope's speech in Helow) Mr Shaw ought to have recused himself. Mr Dunlop submitted that the fair-minded and informed observer would have had a number of factors in mind when considering whether it was appropriate for Mr Shaw to sit as chairman of the Disciplinary Committee. The factors propounded by Mr Dunlop may be summarised as follows:

(a) A serious allegation of racist abuse had been made by Stranraer following the match against East Fife.

(b) At the material time (and indeed through most of the season) East Fife were at the top of the third division, with Stranraer in second place.

(d) Following the match of 2 February 2008 East Fife were 15 points clear, with 18 matches left to play.

(e) A finding of guilty was likely to result in a lengthy ban.

(f) A lengthy ban would harm East Fife's promotion prospects and, at the same time, enhance those of Stranraer.

(g) It was very much in Stranraer's interests to have the petitioner found guilty; both as a result of the promotion race, and as a result of the desire to have their player's complaint vindicated.

(h) The chairman of the committee, Mr Shaw, is (and was at the material time) the elected secretary of Southern Counties.

(i) Southern Counties is an association one of whose primary purposes is to represent the interests of nine football clubs in South West Scotland.

(j) One of those nine, and the third largest of the nine, is Stranraer.

(k) Mr Shaw was not only the elected secretary of Southern Counties; he was also their nominated representative in terms of the SFA Articles of Association (Article 46) responsible for representing their interests on the Council of the SFA.

[32] At a later stage in his submissions Mr Dunlop, in responding to Mr O'Neil's characterisation of his factors as being far-fetched and unrealistic, narrowed what he said were the most important points in the list to the following:

(1) Stranraer were the complainers.

(2) Stranraer are (and were at the material time) a constituent member of Southern Counties, which is an organisation designed to promote Stranraer's interests (as well as those of the other clubs) generally and not merely on the SFA Council.

(3) Mr Shaw is and was at the material time the elected head of Southern Counties.

[33] In my opinion, a fair-minded and informed observer, having considered all the facts, would not conclude that there was a real possibility that the Disciplinary Committee was biased because its chairman was the elected secretary of Southern Counties. It seems to me that such an observer would understand that Mr Shaw was not closely linked to Stranraer. In particular, he held no position with that club as an employee or an official and it is not suggested that he was a Stranraer supporter. The association, such as it was, between Mr Shaw and Stranraer arose only from his role as the elected representative of that club, along with another eight clubs, on Southern Counties. In these circumstances, I consider that a fair-minded and informed observer would be minded to regard the link between Mr Shaw and Stranraer as too weak and insubstantial to give rise to any serious doubt over Mr Shaw's ability to act independently and objectively as chairman of the Disciplinary Committee. No doubt it can be said that Mr Shaw had a responsibility to represent and promote the interests of Stranraer through Southern Counties, but he was the elected representative also of all the other football clubs making up the membership of that association. A fair-minded and informed observer would not, as it seems to me, be likely to regard Mr Shaw as owing any strong degree of loyalty or affiliation to Stranraer in these circumstances. In my view, such an observer would also appreciate that Mr Shaw had been elected to represent the interests of a number of football clubs from South West Scotland in their dealings with the SFA and more generally. The fair-minded and objective observer would, therefore, be likely to see Mr Shaw as a man who had been placed in a position of trust and responsibility by the football clubs from a particular part of the country with a view to representing their various and, no doubt, sometimes conflicting interests in an appropriately detached and independent manner, as would be expected of any elected representative. Mr Shaw had been elected to represent all the clubs from a certain region; such a person could be expected to act fairly and impartially in relation to any SFA matters, including chairmanship of its Disciplinary Committee.

[34] I consider also that a fair-minded and objective observer would take the view that Mr Shaw's representative position at a high level in the governance and administration of Scottish football would mean that he would be likely to strive to ensure that the values of fairness and impartiality expressed in the SFA's disciplinary procedures would be properly reflected in any decisions he was called upon to make or participate in. It seems to me that a fair-minded and informed observer, knowing that Mr Shaw held this important representative role, would be likely to conclude that he was the sort of person who possessed suitable qualities of independence of mind and objectivity to enable him to put aside any possible personal prejudice in discharging his responsibilities properly. Such an observer, in my view, would be likely to accept that Mr Shaw in carrying out his responsibilities as chairman of the Disciplinary Committee would be capable of ignoring any sense of loyalty he might conceivably feel towards one of the members of Southern Counties when he came to act as chairman of the Disciplinary Committee.

[35] Looking at the petitioner's lists of factors as set out above (whether in their original or truncated forms), I consider that they tend to betray the type of unduly sensitive or suspicious attitude with which the fair-minded and informed observer is taken not to be afflicted. It seems to me to be stretching credulity too far to assert that a fair-minded and informed observer would seriously conclude that Mr Shaw would allow his rather weak and indirect connection with Stranraer to taint his assessment of a disciplinary complaint made by that club with a view to procuring the unjustified suspension of a player from a rival club so that the promotion prospects of the former club were advanced to the detriment of the latter. The assumption made by the petitioner that the suspension of one East Fife player would be likely to have a significantly detrimental impact on the promotion prospects of that club and a correspondingly advantageous effect on the chances of Stanraer being promoted seems to me to be questionable in view of the many imponderables inherent in football. In Helow Lord Hope explained that the assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. It seems to me that the petitioner's assumptions suffer from a lack of objective justification, as opposed to the views that would be expected to be held by a fair-minded and objective observer.

[36] I consider also that the fair-minded and objective observer would have attached importance to the fact that Mr Shaw was merely one member, albeit the Chairman, of a Disciplinary Committee comprising a total of ten people. Lord Rodger of Earlsferry drew attention to the significance of this consideration, in the (obviously more serious) context of juries in criminal trials, in a passage in his partially dissenting speech in R v Abdroikov [2007] 1WLR 2679 (at paras 32-34). His Lordship observed that the assumption is that among an English criminal jury of twelve men and women the twelve will be able to neutralise any bias on the part of one or more members and so reach an impartial verdict - by a majority, if necessary. In my view, any unconscious bias to which Mr Shaw may have been subject would be likely to have been far outweighed by the admittedly unbiased views of the other nine members of the Disciplinary Committee. I note that this consideration weighed with the Appeals Tribunal in the present case and in my view understandably so. It is a factor to which regard was also had by the majority in the European Court of Human Rights in Pullar v United Kingdom (1996) 22 EHRR 391 at para 40. I acknowledge that in Abdroikov Lord Bingham of Cornhill (at para 17) described Pullar as a very borderline decision, but in the circumstances of the present case, in particular as one is concerned with the disciplinary processes of a sporting association and not with a criminal trial, it seems to me that the fact that Mr Shaw was merely one amongst ten is highly relevant.

[37] In conclusion on this branch of the case, I consider that the fair-minded and informed observer, having taken account of all the facts, would come to the view that there was not a real possibility that the Disciplinary Committee was biased because of Mr Shaw's position as the elected secretary of Southern Counties.

Procedural unfairness

[38] Under this heading Mr Dunlop argued that the procedure before the Disciplinary Committee was unfair because of the cumulative effect of the absence of Mr Gibson and Mr Mullen from the hearing and the consequential inability on the part of the petitioner to cross-examine them. He said that, having regard in particular to the sharpness of the factual dispute between Mr Tade and the petitioner on the crucial issue, the Disciplinary Committee ought not to have taken account of the written statements provided by Mr Gibson and Mr Mullen. In support of the last proposition Mr Dunlop submitted that the disciplinary rules applicable to cases of Unacceptable Conduct, in contrast to the rules governing other categories of disciplinary cases, did not permit the Disciplinary Committee (at least in the circumstances of the present case) to take account of the written statements from the witnesses referred to.

[39] It is true that the petitioner was informed by the SFA in the letter of 16 January 2008 that the players from Stranraer who had provided statements would be called to the hearing to give evidence. It is clear that the two witnesses in question, Mr Gibson and Mr Mullen, were duly requested to attend the hearing but chose not to do so. In the circumstances, the first question which arises is whether the Disciplinary Committee was entitled to take account of the written statements signed by these two witnesses.

[40] Mr Dunlop argued that, correctly interpreted, the procedural rules did not permit this to happen. Section 6 of the SFA's Disciplinary Procedures for Players' Misconduct is entitled "General Provisions". The General Provisions are stated to apply to all sections of the Disciplinary Procedures. Paragraph 3.3 deals with "Misconduct of a sectarian, racist, sexual or other discriminatory nature ("Unacceptable Conduct")". Paragraph 3.3.5 provides as follows:

"The Disciplinary Committee may require the referee and/or assistant referee/assistant referees and/or fourth official, or any other witness, to attend any such hearing."

Paragraph 3.3.7 provides as follows:

"The procedures for the conducting of the hearing will be in accordance with the Procedures detailed in Appendix 2. In the event of any inconsistency between the terms of Appendix 2 and this paragraph 3.3; this paragraph 3.3 shall prevail."

[41] Appendix 2 sets out the Procedures for the Conducting of a Player's Disciplinary Hearing. Paragraph 1 provides as follows:

"The Disciplinary Committee shall have the power to regulate the procedures at a disciplinary hearing as it considers appropriate and expedient to enable a case to be determined."

Paragraph 3 provides as follows:

"The committee may require the attendance at the hearing of any witness. In any case where a witness required by the committee to attend the hearing refuses or fails to attend, the committee shall be entitled to take account of that witness' evidence as is made apparent to it in any other form."

[42] Mr Dunlop argued that paragraph 3 of Appendix 2 was inconsistent with paragraph 3.3.5 in Section 6 insofar as the latter provision did not say anything about the Committee being entitled to take account of a witness' evidence where the witness refuses or fails to attend the hearing "as is made apparent to (the Committee) in any other form". He maintained that in view of this inconsistency, paragraph 3.3.5 prevailed and, since there was no provision anywhere in paragraph 3.3 to allow the Disciplinary Committee to have regard to written evidence, it was not entitled to take account of written statements given by a witness or at least by any witness whom the Disciplinary Committee had required to attend the hearing. Mr Dunlop said that his argument on this branch of the case was not intended to be understood as referring to the powers of the Disciplinary Committee, but was rather to be seen as an attack on the overall fairness of the procedure which the Committee adopted in the particular circumstances of the present case.

[44] So far as the question of cross-examination is concerned, paragraph 11 of Appendix 2 provides as follows:

"The opportunity of cross questioning shall be given to those who have presented evidence"

[45] At the hearing before the Disciplinary Committee neither the petitioner nor any of the representatives of East Fife asked for the opportunity to cross-examine or for the proceedings to be adjourned so that steps could be taken to attempt to secure the attendance of the missing witnesses. The reasons issued later explained that the Disciplinary Committee nonetheless considered whether an adjournment would be appropriate. They decided:

"... on balance not to do so as it was felt that, if this course of action was taken, there was no definite likelihood of being further forward in its understanding of the case and in its ability to decide on the case."

[46] It is true, of course, that a failure to allow cross examination may, depending on the particular circumstances of the case and the context in which it arises, amount to a failure to give a fair hearing to a party who wishes to challenge the evidence on which the other party seeks to rely (R v Board of Visitors of Hull Prison, ex parte St Germain (No 2) [1979] 1 WLR 1401; Errington v Wilson 1995 SC 550). In the present case, however, I do not consider that the Disciplinary Committee can be said to have proceeded unfairly in this respect. The petitioner did not seek the opportunity to cross examine Mr Mullen or Mr Gibson at the hearing and appears to have raised no objection or concern in the course of the hearing to their absence. In particular, the petitioner did not request an adjournment of the hearing so that efforts could be made by the SFA or East Fife to encourage the witnesses to attend. To my mind there was, in these circumstances, nothing unfair in the approach taken by the Disciplinary Committee in regard to their consideration of the written statements provided by Mr Gibson and Mr Mullen.

Adequacy of Reasons given by the Disciplinary Committee

[47] As I have already explained, following the marking of an appeal against the decision of the Disciplinary Committee, a hearing before the Appeals Tribunal was initially set down for 28 February 2008. This had to be postponed and an adjourned hearing eventually took place on 7 May 2008. On 30 April 2008 - some three months after the appeal had been marked and just seven days before the appeal hearing - the SFA sent to the petitioner a document setting out the reasons for the decision of the Disciplinary Committee (6/3 of process).

[48] I accept, as Mr Dunlop argued, that the timing of the reasons, which appear to have been drafted in light of the grounds of appeal, means that the reasons should be closely scrutinised (Nash v Chelsea College of Art and Design [2001] EWHC Admin 538 and Threlfall v General Optical Council [2005] Lloyd's Rep Med 250). It seems to me to be especially important that where late reasons are produced they should deal with the substantial questions in issue in an intelligible way, and not leave the informed reader or the court in any real doubt as to what the reasons for the decision were, and what were the material considerations in reaching it (Safeway Stores plc v National Appeal Panel 1996 SLT 235). Intelligible reasons should be given to explain why evidence which is prima facie supportive of a party's position has been rejected (Koca v Secretary of State for the Home Department 2005 SC 487).

[49] The main point advanced by Mr Dunlop for the alleged inadequacy of the reasons was that they did not deal sufficiently with the evidence of Mr Paul Stewart. Mr Dunlop said that Mr Stewart's evidence was exculpatory of the petitioner, but the reasons failed to explain what view the Disciplinary Committee had taken towards it. The point went further because the only comment made in the reasons about Mr Stewart's evidence was that it had been "well presented"; judging from this observation, it would appear that the Disciplinary Committee had been favourably impressed by his evidence.

[50] The evidence which Mr Stewart gave at the hearing before the Disciplinary Committee was summarised in the minutes which Mr Herbertson prepared in early March 2008. These explain that Mr Stewart "proceeded to review his statement" and indicated that:

· Mr Tade was acting aggressively.

· Mr Stewart had urged the petitioner to go up the tunnel.

· Mr Tade was trying to confront the petitioner.

· At no time did Mr Stewart hear any racist remarks.

· Stranraer player Steven Bonar had forced Mr Tade into the Stranraer dressing room.

· Mr Stewart considered that a riot would have ensued if such a comment had been made.

[51] Mr Dunlop said it was clear from this evidence that if the petitioner had called Mr Tade a "black bastard" this would have been overheard by Mr Stewart who was standing beside or very close to the petitioner at the material time. It seems to me, however, that Mr Stewart's evidence did not go as far as this. Mr Stewart did not say that he would have been bound to hear the petitioner making such a remark if he had uttered it. What the evidence in fact amounted to, in relation to the critical issue, was that Mr Stewart did not hear a racist remark being made in the tunnel. Yet there was clear evidence, not least from the assistant referee, that such a remark had been made. The scene in the tunnel was clearly a heated and confused one and, in these circumstances, it is understandable that Mr Stewart did not hear the words "black bastard" being uttered by anyone. Properly analysed, it seems to me that Mr Stewart's evidence on the critical question was neutral and of no assistance to the Disciplinary Committee in resolving the fundamental contest between the petitioner and Mr Tade. It seems to me that this approach explains why the Disciplinary Committee contented itself with expressing the view that Mr Stewart's evidence was well presented and did not consider it necessary to discuss it in any greater detail. In the circumstances, I consider that the reasons given dealt adequately and intelligibly with Mr Stewart's evidence. The Disciplinary Committee did not reject his evidence; on the contrary the Committee accepted it insofar as it went, but did not regard it as of assistance when it came to resolving the critical issue.

[52] I should mention that before the First Hearing the petitioner lodged as a production an affidavit from Mr Stewart apparently containing an account of his evidence. The SFA objected to this being considered by me on the ground that the affidavit had not been before the Disciplinary Committee or the Appeals Tribunal. I agree that there is now nothing to be gained by considering any further version of Mr Stewart's evidence. The signed statement, which he submitted before the disciplinary hearing, is available and the minutes of the meeting contain a summary of what he said at the hearing. In the circumstances, there is nothing to be gained by referring to an affidavit setting out Mr Stewart's evidence.

[53] Mr Dunlop advanced a range of further criticisms of the reasons. He said that they were inconsistent on a number of points with the minutes; for example the minutes say that the petitioner stated that he never said anything (to Mr Tade in the tunnel) whereas the reasons say that much of what the petitioner had to say in evidence related to the build up and aftermath. Even giving the reasons an appropriately close degree of scrutiny, I consider that this criticism is unduly narrow. I note, in particular, that in his signed statement the petitioner did go into the events preceding the incident and also, to some extent, what happened later.

[54] Mr Dunlop also maintained that there were inconsistencies between the accounts of Mr Collumbine's evidence given in the minutes as compared to the reasons. The reasons go further than the minutes in the sense that they expressly reject certain aspects of Mr Collumbine's evidence on the ground that they were "unconvincing and flawed", but I do not consider that this renders the reasons unintelligible or inadequate. The minutes and the reasons were not intended to serve exactly the same purpose: the former were intended to be a record of what happened at the hearing whilst the latter were intended to provide an explanation for the Disciplinary Committee's decision.

[55] Mr Dunlop submitted that it was unsatisfactory that the reasons contained reference to the Disciplinary Committee having considered whether it was appropriate to adjourn because of the failure by Mr Gibson and Mr Mullen to attend whereas there was no reference in the minutes to the possibility of an adjournment. I do not consider that any sinister inference can be drawn from this. Since there was no motion made for an adjournment at the hearing, it is unsurprising that the minutes do not mention this matter. It should also be recalled that the petitioner made no complaint at the hearing about the missing witnesses. The grounds of appeal did, however, raise the absence of the witnesses as an issue. It is, therefore, understandable that the Disciplinary Committee thought it right to explain in the reasons that they had given consideration to the possibility of an adjournment as a means of addressing this issue.

[56] Finally, Mr Dunlop said that the reasons were unclear when they stated that the case essentially boiled down to one person's word against another's and that there was no sufficient explanation as to why Mr Tade's account was preferred to that given by the petitioner.

[57] The essence of the Disciplinary Committee's reasoning is contained in the following passage:

"The committee was in no doubt that the comment complained of by Stranraer FC had been said. The issue was: by whom? From an analysis of the evidence presented during the interviews and on the basis of the written submissions, the committee decided that, on the balance of probabilities, it had been (the petitioner) who had made the comment, despite his strong denial. The factors which contributed to the decision were: the locus of the incident, the persons identified to have been in the vicinity, the evidence of (Mr Tade) and of the assistant referee, and the reaction of the player Andrew Gibson who had reacted to the comment being made by kicking (the petitioner)."

[58] In my view, this intelligibly encapsulates the approach taken and contains a sufficient explanation of the basis for the Committee's decision. It correctly identifies the issue which the Committee had to resolve and that the standard of proof was on the balance of probabilities. It acknowledges that the petitioner strongly denied having made the alleged racist comment. The passage then goes on to refer to the fact that the incident allegedly took place in the tunnel and that both the petitioner and Mr Tade were, on the evidence, in the tunnel at the material time. Then there is mention of Mr Tade's evidence. This, of course, was clearly to the effect that the petitioner called him a "black bastard". It seems to me to be clear from this that the Committee was persuaded to accept and believe Mr Tade's evidence on this critical point. The reasons and the minutes both record him as having stated, in response to questioning, that he was 100 per cent certain that it was the petitioner who had racially abused him. The reasons also state that Mr Tade had been precise in his description of the incident and its locus. The critical passage in the reasons then mentions the evidence of the assistant referee; this was of importance because it represented independent confirmation that the alleged racist comment had indeed been made. Finally, reference is made to the reaction of Mr Tade's team mate, Mr Gibson, to the comment made by the petitioner. This seems to me to be a matter of some importance because, as the minutes explain, at the hearing the assistant referee was able to identify the petitioner as the person whom Mr Gibson had kicked as an immediate reaction to the making of the racist remark. The evidence about the directing of the kick at the petitioner therefore served to corroborate Mr Tade's evidence that it was the petitioner who had uttered the comment.

[59] In the circumstances, I consider that the reasons do contain an intelligible and sufficient explanation of the evidence relied upon by the Disciplinary Committee in reaching its decision to accept Mr Tade's account of events and to reject the petitioner's denial that he had called Mr Tade a "black bastard".

The Appeals Tribunal

[60] Since I have rejected the petitioner's complaint of bias on the part of Mr Shaw as chairman of the Disciplinary Committee and the petitioner's other complaints of unfairness at first instance, it is unnecessary for me to consider whether the fact that the petitioner exercised his right to appeal to the Appeals Tribunal would have cured any unfairness in the procedure before the Disciplinary Committee. For completeness I shall, however, briefly indicate my views on the point.

[61] Mr Dunlop argued that the appeal could not cure the existence of bias or other unfairness at first instance because the Appeals Tribunal itself was tainted by apparent bias. This arose, he said, because the Disciplinary Committee had chosen to participate in and be represented at the appeal as a party to the proceedings. In these circumstances, a fair-minded and informed observer would have taken the view that that there was a real possibility of bias on the part of the Appeals Tribunal arising from the fact that the President of the SFA was a member of the Tribunal.

[62] The composition of the Appeals Tribunal is governed by paragraph 4.5 of the Disciplinary Procedures. This states that the Appeals Tribunal shall be formed of an independent chairman, the President of the SFA or his appointed deputy and the secretary or committee member of the Scottish Professional Footballers' Association, unless otherwise precluded by a prior involvement in the case in question.

[63] I do not consider that a fair-minded and informed observer would regard the presence of the President of the SFA on the Appeals Tribunal as giving rise to a real possibility of bias. It seems to me that such an observer would regard the composition of the Appeals Tribunal as fairly balanced in view of the involvement of the President of the SFA and a representative of the Scottish Professional Footballers' Association. Such an observer, in my opinion, would also attach importance to the fact that the Appeals Tribunal is chaired by an independent person. In my view, the mere fact that the President of the SFA is a member of the Appeals Tribunal in circumstances where the Disciplinary Committee is represented would be insufficient to cause a fair-minded and informed observer to conclude that there was a real possibility of bias. Such an observer would, I believe, take the view that an individual holding the office of President of the SFA would be likely to display the appropriate degree of independence and objectivity in dealing with a disciplinary appeal. In any event, the involvement of the two other members of the Appeals Tribunal would, as it seems to me, persuade the fair-minded and informed observer that any tendency to bias on the part of the President would be neutralised.

[64] Given that I do not consider there to have been a real possibility of bias or any other unfairness on the part of the Appeals Tribunal, the next question (had I been satisfied that there was apparent bias or other unfairness at first instance) would have been to consider whether, looking at the entirety of the process within the SFA, the petitioner had received a fair hearing. In my opinion, the petitioner would have received a fair hearing even if it could be said that there had been apparent bias or other unfairness at the stage of the Disciplinary Committee. In reaching that view I am influenced, in particular, by the fact that the petitioner had the right to request that the appeal hearing should be conducted as a re-hearing of the case. Paragraph 4.1 of the Disciplinary Procedures provides that an appeal hearing shall not be conducted as a re-hearing except with the permission of the Chairman of the Appeals Tribunal. In the present case the petitioner did not make a request for the appeal to be conducted as a re-hearing. In these circumstances, it seems to me that the petitioner cannot now be heard to complain that there was not a full and fair consideration of his case by the Appeals Tribunal, even if the decision of the Disciplinary Committee was tainted by apparent bias or other unfairness. I would therefore have held, had it been necessary for me to do so, that having regard to the course of the proceedings as a whole, the petitioner had received a fair hearing by the SFA in relation to the complaint of Unacceptable Conduct brought against him by Stranraer.

The significance of Judicial Review

[65] In the event that I had been persuaded to hold that there had been unfairness in the proceedings before the SFA (viewed as a whole), Mr O'Neill argued in his written submissions that the availability of judicial review would have been sufficient to cure any deficiency. After some discussion, however, Mr O'Neill (rightly in my view) acknowledged that this argument was unsound in view of the fact that a re-hearing on the merits of the complaint could not take place before this Court. Mr O'Neill accordingly departed from this aspect of his argument and I need not consider it any further.

Conclusion

[66] In the result, I conclude that none of the challenges advanced by the petitioner to the decision of the Disciplinary Committee is well-founded. It follows that the decision of the Appeals Tribunal upholding the ruling at first instance is also sound. I have, therefore, sustained the First Respondents' second plea-in-law, repelled all the petitioner's pleas and refused the petition. I shall leave it to parties to enrol whatever motions they consider appropriate as to expenses.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fotheringham, Re Judicial Review [2008] ScotCS CSOH_170 (12 December 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_170.html Cite as: [2008] CSOH 170, [2008] ScotCS CSOH_170

Scottish Court of Session Decisions