Transparency and judicial bias – a review in 2019

20160419_173301Common law ‘transparency’

 

At common law and in general law usage the term ‘transparency’ has three principle meanings:

 

  • It is of the essence of the open justice principle (and is used by family lawyers to refer to the wearing down of privacy presumptions under Family Procedure Rules 2010 r 27.10);
  • It is essential to a fair trial: that parties disclose (ie tell other parties) what relevant documents they have and that they tell the truth in evidence they give; and
  • A fair trial is likely to be hindered if not made impossible if any judge is not transparent as to any bias – ‘actual’ or ‘presumed’ – to which the judge may be subject.

 

It is the last which calls for review in 2019, twenty years after the leading case which still provides a non-specific categorisation of circumstances which may give rise to bias. This case – Locabail (below) – must be looked at first; and then it must be looked at through the spectacles of Lord Hope’s ‘fair-minded and informed observer’.

 

In Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [2000] 1 QB 451, [1999] EWCA Civ 3004, [2000] 1 QB 451a specially constituted Court of Appeal (Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C) considered bias at common law. They discussed it generally, and then in respect of five cases. They explained the concepts of actual bias (eg the judge who has shares in a company whose case comes before him: as a matter of law the judge may not try such a case).

 

‘A real danger of bias’

 

Actual bias, which automatically disqualifies a judge, must be contrasted with there may be a ‘real danger of judicial bias’. The tricky aspect of that is that it is the judge who is arbiter of his or her own bias as alleged in any application to recuse the judge (for the judge to take him- or herself off the case).

 

In Locabail the Court of Appeal said bias could not ‘ordinarily’, be expected to apply on the basis of (at [25]) the following:

 

  • the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family;
  • previous political associations;
  • membership of social or sporting or charitable bodies;
  • Masonic associations;
  • previous judicial decisions;
  • extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers);
  • previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him;
  • membership of the same Inn, circuit, local Law Society or chambers.

 

That was nearly 20 years ago. Barrister’s chambers have become much more commercial and – perhaps? – competitive. Many solicitors’ firms are massively larger. The partnership structure anticipated by the Court of Appeal in 1999 is rarely applicable now. The Court of Appeal made it clear no list could be definitive; but is not the Locabail list due for review in 2019, and in the light of the next common law development: what might be the views of the fair-minded and informed observer?

 

‘Fair-minded and informed observer’

 

In Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] WLR 2416 Lord Hope proposed the concept of the fair-minded and informed observer in the following terms:
[1] My Lords, the fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively….

[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 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 fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.

 

One example of a change since 1999 will suffice. In Locabail the Court of Appeal explained a distinction they perceived between barristers and solicitors. Of the bar they said:

 

[20] When members of the Bar are appointed to sit judicially, whether full-time or part-time, they may ordinarily be expected to know of any past or continuing professional or personal association which might impair or be thought to impair their judicial impartiality. They will know of their own affairs, and the independent, self-employed status of barristers practising in chambers will relieve them of any responsibility for, and (usually) any detailed knowledge of, the affairs of other members of the same chambers….

 

They explained what they saw, then, as the difference in practice for solicitors:

 

[20] … The position of solicitors is somewhat different, for a solicitor who is a partner in a firm of solicitors is legally responsible for the professional acts of his partners and does as a partner owe a duty to clients of the firm for whom he or she personally may never have acted and of whose affairs he or she personally may know nothing. While it is vital to safeguard the integrity of court proceedings, it is also important to ensure that the rules are not applied in such a way as to inhibit the increasingly valuable contribution which solicitors are making to the discharge of judicial functions.

 

Fair-minded and informed observer and Locabail

 

I shall assume all that was right in 1999. Is it still how a fair-minded and informed observer might see things in 2019? Barristers are highly collegiate and are very much a lawyer’s in-group within the much wider legal profession. Would a recently appointed judge – for all his or her ‘independence’ while in chambers (what barristers call their offices) – be able to be unbiased where a former fellow member of chambers is involved in a finely balanced case; or where the reputation of a solicitors’ firm is in issue where he received regular instructions from that firm shortly before appointment?

 

It matters not what I think. What view might the fair-minded and informed observer take? Might she perhaps think this relationship of a judge with recent close colleagues be of concern when a judge’s impartiality is in issue? She might say that in 2019 the view of the Court of Appeal needs review; that it is a little complacent even on this point.

 

By contrast she might think the restrictions on solicitors and the distinction drawn by the Court in 1999 is not apt in all cases in 2019, especially of much larger firms where there was no contact between the solicitor judge and another member of the same firm. To suggest that barristers somehow have some special quality of ‘independence’ but solicitors do not, she might say, was unreal, needlessly discriminatory, even.

 

We lived in kinder times in 1999 (pre-Iraq war, and the Twin Towers were still standing); and it was long before the intolerance and xenophobia of Brexit. The coming into effect of Human Rights Act 1998 was still a year away. Are we still entitled to be as tolerant of Masonic links as was the Court of Appeal? We are more aware of the corrosive effects of judicial bullying. Does any of this need to be reflected in a Locabail para [25] type of list?