Judicial disqualification (‘recusal’)
The question of whether or not Lord Neuberger should sit in the Supreme Court on the appeal from the EU withdrawal case (R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)) has recently arisen. His wife is believed to have made comments supporting the United Kingdom remaining in the European Union (http://www.telegraph.co.uk/news/2016/11/18/supreme-courts-most-senior-judge-urged-to-stand-down-from-articl/).
On a binary question (IN or OUT as it was put in the referendum) as to whether or not to remain in the EU the Supreme Court judges are likely all to have a view. They are voters. That does not mean they cannot adjudicate. There are many cases where the judge will have a personal view about a person s/he must deal with in court – a judge, personally, may take an intense dislike to a defendant; but the court’s decision may go in an opposite direction from that personal view. Judges will be well-insulated against that sort of personal bias.
In the case of Lord Neuberger, his wife’s views – and even his own – are irrelevant. He is being asked to decide a point of law; and whichever way he decides, he would not be the first judge who has had to decide one way whilst his/her personal preferences go in the opposite direction. Whatever his own sympathies, he may find that the law requires him to go in an opposite direction.
‘Bias’ – for this is what we are speaking of here – is a technical term in law; and if it is found to exist, a judge must take him/herself off the case. The immediate problem – which I personally do not see as an issue over Miller in the Supreme Court, either in respect of Lord Neuberger or of Lady Hale (her comments on the case in Kuala Lumpur) – is that it is the judge who is the arbiter of whether or not bias arises, and therefore whether or not s/he should be disqualified (‘recused’, the technical term) from hearing the case.
‘Actual’ bias: automatic disqualification
Judicial impartiality, says the Court of Appeal, is ‘the fundamental principle of justice, both at common law and under European Convention 1950 Art 6’ Morrison & Anor v AWG Group Ltd & Anor [2006] EWCA Civ 6, [2006] 1 WLR 1163 at§[6]. If it is breached a judge is disqualified from hearing a case (recused). It is not a matter for a discretionary case management decision.
‘Actual’ bias gives rise to automatic disqualification by the judge or other tribunal by him/herself from continuing to deal with the case. This occurs where the judge has a personal interest – however dispassionate s/he may be about it – in the case. For example, in Dimes v Proprietors of Grand Junction Canal (1852) 3 HLCas 759, 793–794 orders made by the Lord Chancellor, Lord Cottenham – a shareholder in the company concerned – were set aside:
No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest….
‘Actual’ bias is not limited to a financial interest. In R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2)) [1999] UKHL 1; [2000] 1 AC 119 Lord Hoffman was disqualified and the House of Lords disposal of the case set aside, because of his undisclosed interest in Amnesty International, a party to the House of Lords appeal. Lord Browne-Wilkinson (at 135) explained this – a point which could, just conceivably, be argued against Lord Neuberger):
The rationale of the whole rule is that a man cannot be a judge in his own cause…. If, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties.
‘Apparent’ bias
The judge must recuse him/herself if it is accepted that the judge is, or appears to be, biased; but a decision on the point is a matter for the judge on the particular facts of the case. The test for bias of either category is whether the ‘fair-minded and informed observer’ would conclude that there was a real possibility of bias (per Lord Hope in Porter v McGill (orse McGill v Weeks) [2001] UKHL 67):
[103] 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.
This form of bias is less easy to define or to detect than ‘actual’ bias; for it may occur – when it does – in a variety of forms. This is not because judges may fail to detect their own possible bias when it is drawn to their attention. It is because two particular and separate factors combine: first, that the judge must adjudicate on the issue of which he is the subject (as mentioned above); and, secondly, that in doing so the judge will be conscious that it is a principle of judicial administration that a party may not chose or reject the judge who is to deal with his/her case. If judges gave in too easily to every application before them for recusal it would undermine this second principle.
In Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [1999] EWCA Civ 3004, [2000] QB 451 the Court of Appeal – in which sat the then Lord Chief Justice (Lord Bingham), Lord Woolf MR and Sir Richard Scott VC – gave a judgment of all three senior judges which, at the time, was intended to deal with the question of bias. It concluded, on the subject of perceived bias and of the question of categorising types of perceived bias, as follows:
[25] It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge….
The court considered a number of instances where perceived bias would be unlikely to be found. They went on to suggest circumstances where it might be found:
[25] …By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind….
The ‘fair-minded’ observer
Lord Hope, in Porter v McGill (above), coined the term the ‘fair-minded and informed observer’ to apply in this context; and he has since returned to the same ‘relative newcomer’ in the legal lexicon in Helow v Secretary of State for the Home Department and another [2008] UKHL 62. In that case (at §§[1] and [2]) he further explained. The main points in which the judge, in the guise of the informed observer, should determine the application (generally against his/her own involvement in the case) includes the following:
- The informed observer will reserve judgment and a decision on the recusal (disqualification) until he or she has seen and fully understood both sides of the argument.
- The approach to determination of the issue must be distinguished clearly from not be confused with that of the complainant: there must be a clear measure of detachment. The complainant’s assumptions can only be adopted by the observer if they ‘can be justified objectively’.
- However, the observer must not be complacent if a real complaint is made out: ‘a judge must be, and must be seen to be, unbiased’.
Lord Hope then went on briefly to consider the ‘informed’ observer, stressing the main attribute of this person, as part also of the ‘fair-minded’ observer, is the extent to which this person will take the trouble to be fully informed as to the matters which are relevant to the complaint before the court:
[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.
Informed observer
Where actual bias on established facts is proved, the decision will almost invariably be clear: the personal interest of the judge will disqualify him or her. If perceived bias is alleged the judge must be guided notionally by the ‘informed observer’. The judge will ask: to the ‘impartial outsider’ could my involvement in this case or my comments concerning it, or one of the parties, be seen as being biased one way or the other?
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