Without prejudice? Judicial bias and unfair conduct

Published: 5/6/2019

The common law adversarial system means that there will always be winners and losers in litigation. Parties that lose may feel that one of the reasons, or maybe even the main reason that they lost, was because the judge in their case was biased against them. However, when will such concerns cross the line into real, complainable issues such that a judge might be considered to actually be 'biased'?

The recent decisions in United Cabbies Group (London) Ltd. (UCG) v Westminster Magistrates’ Court [2019] EWHC 409 (Admin) and Serafin v Malkiewicz & Ors [2019] EWCA Civ 852, serve as timely reminders of the standards those in judicial office are required to maintain.

Natural justice

It is a principle of natural justice that no person can be a judge in a case in which they have an interest. This is encapsulated in the Latin maxim, nemo judex in causa sua, attributed to the great seventeenth century jurist, Sir Edward Coke. The legal effect of a breach of natural justice is normally to halt proceedings and/or render any judgment ensuing invalid; the case can be quashed, then be appealed or remitted for a re-hearing.

R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, [1923] All ER Rep 233 set the precedent in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision. In his judgment, Lord Chief Justice Hewart stated the now often quoted aphorism that 'not only must justice be done; it must also be seen to be done.' The rule is very strictly applied to any appearance of a possible bias, even if there is actually none.

So what is bias?

Bias is defined as an inclination or prejudice for or against one person or group, especially in a way considered to be unfair.

The two types of bias are:

(i) actual bias; and

(ii) apparent bias.

The law distinguishes actual bias from apparent bias. The former is subjective, and deals with the judge’s state of mind, while the latter is objective, and deals with the judge’s conduct and the surrounding circumstances. Where a judge is actually biased in a decision, then justice has not been done. Where a decision is tainted by apparent bias, then justice is not seen to be done.

Actual bias

Actual bias arises where the judge is a party to the litigation or has a financial or other interest in the outcome of the litigation. The interest can be the promotion of a cause and does not need to be proprietary or pecuniary. The question is not whether the judge has some link with the party involved in a cause before the judge, but whether the outcome of that cause could, realistically, affect the judge’s interest.

Actual bias in the courts of England and Wales is blessedly rare.

In the recent case of UCG v Westminster Magistrates’ Court, one of the grounds of challenge for the Judicial Review was that the judge’s decision to grant an operating licence to Uber in London for 15 months was tainted by actual or apparent bias, because the judge’s husband was a consultant with a company providing services to the Qatar Investment Authority, which had a financial investment in Uber.

Following the publication of a Guardian article uncovering the connection after her judgment, the judge wrote to the parties confirming that she had been unaware of the link (as was her husband) and that she would not sit on the matter any further. UCG were unsuccessful in their challenge, with the appellate judges holding that they could see 'considerable practical difficulties if a judge has to research whether his or her immediate family members may have any link with any party in every case over which they preside.' 

They further reiterated that where the judge’s interest is said to derive from the interest of a family member, the link must be 'so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the judge himself,' as per Jones v DAS Legal Expenses Insurance Co. Ltd. [2003] EWCA Civ 1071.

Apparent bias

Apparent bias arises when, although the judge is not a party to the proceedings, and does not have an interest in its outcome, there is something in the judge’s conduct or behaviour, their interests, affiliations or their allegiances, that gives rise to a suspicion that they have not decided the case in a partial manner.

The most famed example in recent years is R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119, which involved the unprecedented decision by the House of Lords to set aside its own previous judgment based on the possibility of bias.

In that case, Lord Hoffman, who had formed part of the 3-2 majority in the House of Lords trial which decided the former Chilean dictator had no immunity from arrest, had failed to declare his links to the human rights organisation, Amnesty International, which had intervened in the appeal. Not only was he an unpaid director of the charitable arm of Amnesty International (Amnesty International Charity Ltd), but his wife had been an administrative assistant to Amnesty International’s London office for 21 years. At the time, Lord Hoffman told the Daily Telegraph: 'The fact is I'm not biased. I am a lawyer. I do things as a judge. The fact that my wife works as a secretary for Amnesty International is, as far as I am concerned, neither here nor there.' However, his fellow Lordships held that: 'The fact that a person has the necessary training and qualifications to resist any tendency towards bias is not relevant when considering whether there was an appearance of bias.'

In Magill v Porter [2001] UKHL 67, the House of Lords adopted the test of 'what the fair-minded and informed observer would have thought, and whether his conclusion would have been that there was real possibility of bias.' This is an objective test. When applying the test: 'It will very often be appropriate to enquire whether the judge knew of the matter relied on as appearing to undermine his impartiality, because if it is shown that he did not know of it the danger of its having influenced his judgment is eliminated and the appearance of possible bias is dispelled.'

Religious or cultural background bias

In the leading case of Locabail (UK) Ltd. v Bayfield Properties Ltd. & Anor [1999] EWCA Civ 3004, the Court of Appeal considered the circumstances under which a fear of bias may prove to be founded, noting that it would necessarily be a highly fact-specific exercise:

'The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party of witness to be unreliable, would not without more found a sustainable objection;' and '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.'

However, their Lordships stated that they could not conceive of circumstances in which an objection relating to a judge could be soundly based on any of the following:

  • religion;
  • ethnic or national origin;
  • gender;
  • age;
  • class;
  • means; or
  • sexual orientation

They further went on to list other characteristics that could not at any rate, ordinarily, form a sound base to found an accusation of bias, such as the judge’s social, educational or employment background; nor that of any member of the judge’s family; or previous political associations; or membership of social, or sporting, or charitable bodies; or Masonic associations.

Legal and relationship bias

There are often connections between lawyers involved in a case, such as the judge formerly having been in chambers with one of the barristers appearing in front of them, or having previously been instructed by one of the solicitors, when in practice. Such connections, although perhaps surprisingly close in the eyes of clients and litigants in person, do not give rise to apparent bias.

However, a connection between the judge and a party or a witness can give rise to a need for recusal, such as was the case in AWG Group Ltd. & Anor v Morrison & Anor [2006] EWCA Civ 6, whereby Mr Justice Evans-Lombe was told by the Court of Appeal that he was wrong to have refused to recuse himself after it had become apparent that he was acquainted with one of the witnesses in a case before him (namely, that was his neighbour in Norfolk and had been his former tennis partner).   

Similarly, in Howell & Ors v Lees Millais & Ors [2007] EWCA Civ 720, Mr Justice Peter Smith was roundly criticised by the Court of Appeal for refusing to recuse himself from a Beddoe application, where several weeks previously, he had dealt with members of the claimant law firm in a personal capacity. The Court of Appeal allowed the appeal and this case illustrates the danger of judges being asked to recuse themselves, will not always be able to view such an application objectively.

Procedural bias and unfair conduct

Allegations of bias on the grounds of procedural irregularity or unfairness are perhaps the most common. It is a fundamental tenet of the administration of justice that those who appear before the courts are treated fairly and that judges act – and are seen to act – fairly and impartially throughout the trial process.

Whether a trial is conducted fairly is assessed subjectively and necessarily with the benefit of hindsight.

Although it is entirely proper for judges to intervene in the course of witness evidence to ask clarificatory questions, the judge must not 'descend into the arena and give the impression of acting as an advocate' (per Lord Parker CJ in R v Hamilton (unreported, 9 June 1969). Lord Brown JSC in Michel v The Queen [2009] UKPC 41, also made it clear that whether a trial has been conducted fairly was not be judged merely by the correctness of the result.

The recent Court of Appeal decision in Serafin v Malkiewicz & Ors, dealt with unfair judicial treatment and delivered an excoriating verdict on Mr Justice Jay’s conduct in the proceedings below. Forming the fifth ground of appeal in Serafin v Malkiewicz & Ors, it was alleged that the trial process was either unfair and/or conducted with the appearance of unfairness and that consequently the judge’s findings were not safe or reliable. The Court of Appeal found that Mr Justice Jay had showed hostility and rudeness to the Claimant, and their Lordships stated they were 'driven to the conclusion that the nature, tenor and frequency of the Judge’s interventions were such as to render this libel trial unfair' and subsequently to uphold that ground of appeal.

Conclusion

Judges appear to have become more willing in recent years to recuse themselves when faced with circumstances which might give rise to allegations of bias (particularly if approached before the hearing in order to avoid an application at a later stage). Further, Listing Officers appear to be alive to such concerns. For example, when Mrs Justice Gloster (as she then was) was listed to hear a summary judgment in which her stepson was the advocate for the applicant, the Commercial Court Listing Office, on being informed, immediately replaced her with a deputy judge.

However, the judge should only recuse themselves where the case against them is properly made out, and they should resist the temptation to recuse themselves simply because it would be more comfortable to do so. Another way of putting this point is that the rule is a rule of law, and confers no discretion on the judge. If the case crosses the line, the judge must not hear the case. If it does not do so, the judge cannot decline to do so (per Kimyani v Sandhu [2017] EWHC 151 (Ch).

It is important though that judges are fair in their dealings with parties, particularly given the rise of litigants in person. While a judge’s actions at trial, such as constant intervention and hostile comments, may leave them open to criticism, given the need for active case management, the threshold for overturning a judgment on this ground is high and only likely in extreme circumstances, such as was the case in Serafin v Malkiewicz & Ors.

However, if a ground for objection for apparent bias is known, this should be raised at the soonest possible juncture. If it is not so deployed, and is kept back for later use (for example in an appeal), that can be held against the applicant.

That said, it is important that claims of bias are not brought lightly. Such applications are costly and time-consuming, and the standard for setting aside a decision or recusing a judge based on bias is high. Legal practitioners should familiarise themselves with the relevant case law so that they are able to distinguish between a case of post-trial blues, and a genuine incident of judicial bias, and advise their clients about the merits of any proposed application - with an equally impartial eye.

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