Judicial Duty

Question One

"Where a judge is performing a judicial duty, he must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial",

Discuss critically this statement in the light of the principles applied by the courts in determining whether to disqualify a decision-maker for bias.

2000 Words

The law of disqualification arguably rests upon two principles of law; ‘Nemo judux in causa sua,’ that no-one should be a judge in his own causeand that fundamentally ‘Justice must, not only be done but should manifestly and undoubtedly be seen to be done.’ With these principles taken into account precedence had developed what had appeared to be definitive tests for bias and disqualification. The recent case of ex Parte Pinochet Ugarte (No 2)[1999]1 all ER 577 appears to have cast uncertainty upon the tests for bias. This essay will focus upon these tests and the changes that the Pinochet ruling has brought about. The wider implications of judicial bias and disqualification will also be explored within the context of a rapidly changing United Kingdom, and especially the effects that the introduction of the Human Rights Act 1998 may have for the judiciary.

Disqualification for bias is divided between ‘automatic disqualification’ and that of ‘real danger.’ Firstly automatic disqualification was developed in Dimes v Grand Junction Canal which involved a judge who was a shareholder in a company appearing before him as a litigant. Where the judge was shown to have an interest in the outcome of the case, which he had to decide, or had decided he would be automatically disqualified. This rule relates strongly to the presence of a pecuniary interest and whether the outcome of the case could realistically or directly affect the judge’s interest. Blackburn J in R v Rand stated

…’any direct pecuniary interest, however small, in the subject matter of inquiry, does disqualify a person from acting as a judge in the matter’…

The second rule provided for the disqualification of a judge and the setting aside of a decision, if on examination of all the relevant circumstances, the court could conclude that there was a real danger (or possibility) of bias. This test requires further investigation into whether some form of personal connection on the part of the judge, creates suspicion of bias. This test; arguably clarified in R v Gough, which involved the issue of possible jury bias. Lord Goff defined the test; to be used when examining all cases of apparent bias whoever the decision maker:

…’I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question in the sense that he might unfairly regard (or have unfairly regarded) with favour or disfavour, the case of a party to the issue under consideration by him’…

The Court of Appeal in the case of Dallaglio concluded that the law had been settled by Gough.

It is now necessary to explore the decision made in ex parte Pinochet and the effects it has had on the tests for bias, and the wider implications of the decision. The House of Lords did not follow the reasoning laid down in Gough but rather, extended the automatic disqualification rule. On 25th November 1998 the House of Lords decided that General Pinochet was not immune to arrest and extradition in regard to crimes committed against humanity, also giving permission for Amnesty International to act as interveners in the case. After his decision was made, General Pinochet applied to the House of Lords to set aside is previous decision, as it had become known that one of the judges, Lord Hoffman, was the unpaid director and chairperson of Amnesty International Charity Limited, which was controlled by Amnesty International and that his wife was employed by Amnesty International. Pinochet argued that the connections had not been disclosed and as such may lead to the appearance of possible bias.

In December 1998, a panel of five Law Lords found that the close links between Amnesty