Acted as both ‘prosecutor and judge’
Although Thrace may not have acted as both ‘prosecutor and judge’, and was not necessarily a ‘moving force’ in establishing the initial breach, the principles of Isbester nevertheless appear to inform and illuminate the existence of a conflict. As the member of a Tribunal which unanimously ruled against Adama, Thrace found that the intern had engaged in ‘continual lies and misrepresentations’ at ‘every opportunity’ in breach of the Act. That Thrace was subsequently required, at the re-engagement interview, to ‘confirm’ whether Adama understood those same rules, which involves ‘establish[ing] the truth’, may lead a ‘fair-minded observer’ to perceive a conflict of interest.
Sample Solution
In the UK Supreme Court case of Isbester v. Scott [2005], Lord Nicholls identified a conflict of interest as “a situation where ‘the decision maker has an interest in or connection with the subject matter which is such that he might be unconsciously biased in his decision” (para. 43). Applying this definition to the present case, it could be argued that Thrace’s involvement as both judge and enforcer may lead to unconscious bias on her part, when deciding whether Adama should resume her position.
The court in Isbester also noted that “it is not necessary for the fair-minded observer to conclude there was a real likelihood of bias…It suffices if there is a reasonable suspicion which can only be rebutted by establishing plausible alternative explanations for the circumstances complained about” (para. 45). In this instance, one such explanation would be that Thrace is merely re-confirming Adama’s understanding of previously established rules and regulations – something unrelated to any past judgement she had personally made against Adama.
Ultimately, therefore, while no actual corruption may have occurred, it appears clear from Isbester and its application herein that a potential conflict exists between Thrace’s role as both Judge and Enforcer; thus raising doubts amongst fair-minded observers who cannot simply dismiss those suspicions without evidence explaining otherwise.
