JAC

• In determination of their rights and liabilities, civil or criminal, everyone is entitled to a fair hearing by an impartial tribunal
• Any judge who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the right to a fair hearing and violates one of the most fundamental principles underlying the administration of justice
• Actual bias

  The existence of partiality or prejudice that is actually shown
• Automatic disqualification

  The situation where the existence of bias is effectively presumed on proof of the requisite facts
• The rule of automatic disqualification applies where the judge is shown to have an interest in the outcome of the case which he is to decide or has decided
• The rationale of the automatic disqualification rule is that if a judge has a personal interest in the outcome of an issue which he is to resolve, he is improperly acting as a judge in his own cause, and such a proceeding would undermine public confidence in the integrity of the administration of justice
• The automatic disqualification rule applies not only to pecuniary or proprietary interests, but also to a limited class of non-financial interests where the judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation
• The courts should hesitate before creating any other special category of automatic disqualification, as this will create uncertainty as to the parameters of that category and the test to be applied
• Lord Woolf: 'There could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.'
• Lord Woolf suggested that the courts should hesitate long before creating any other special category of automatic disqualification
• Lord Goff agreed with Lord Woolf's view
• The High Court of Australia has supported Lord Goff's view in Webb v. R.
• In Pinochet (No. 2), Lord Goff did not envisage any wider extension of the automatic disqualification rule
• Any extension of the automatic disqualification rule would limit the power of the judge and any reviewing court to take account of the facts and circumstances of a particular case, and would have the potential to cause delay and greatly increased cost in the final disposal of the proceedings
• Disqualification under the rule in Dimes and Pinochet (No 2) is properly described as automatic, but a party with an irresistible right to object to a judge hearing or continuing to hear a case may waive their right to object
• Any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not
• The most effective protection of the right to an impartial judge is afforded by a rule which provides for the disqualification of a judge, and the setting aside of a decision, if on examination of all the relevant circumstances the court concludes that there was a real danger (or possibility) of bias
• Until 1993 there had been some divergence in the English authorities on the test for bias, with some expressing it in terms of a reasonable suspicion or apprehension of bias, and others in terms of a real danger or likelihood of bias
• The law was settled in England and Wales by the House of Lords' decision in R. v. Gough, which established the test of a real danger or possibility of bias
• The test of real danger or possibility has been laid down by the House of Lords and is binding on every subordinate court in England and Wales
• When applying the test of real danger or possibility, it will often be appropriate to enquire whether the judge knew of the matter relied on as appearing to undermine their impartiality, because if the judge was ignorant of it, the danger of it having influenced their judgment is eliminated and the appearance of possible bias is dispelled
• A reviewing court may receive a written statement from any judge, lay justice or juror specifying what they knew at any relevant time, but the court is not necessarily bound to accept such statement at its face value
• When members of the Bar are appointed to sit judicially, 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
• The position of solicitors is somewhat different, as a solicitor who is a partner in a firm of solicitors is legally responsible for the professional acts of their partners and does as a partner owe a duty to clients of the firm for whom they personally may never have acted and of whose affairs they personally may know nothing
• Problems are more likely to arise when a solicitor is sitting in a part-time capacity, and in civil rather than criminal proceedings
• If, in any case not giving rise to automatic disqualification and not causing personal embarrassment to the judge, the judge is or becomes aware of any matter which could arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing
• The judge would be as wrong to yield to a tenuous or frivolous objection as they would to ignore an objection of substance
• It would be the duty of the judge to consider the objection and exercise his judgment upon it
• The judge would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance