Lecture 24: Judicial Review - Rule Against Bias Flashcards
What does Albrecht Dürer’s “The Litigation Fool” critique?
Albrecht Dürer’s “The Litigation Fool”, an illustration for the poem by Sebastian Brant in The Ship of Fools (1494), critiques the folly of judges and lawyers. It highlights that blind justice, when misapplied, is not justice at all.
How has the understanding of Lady Justice evolved over the centuries?
The understanding of Lady Justice has changed over the centuries. Originally depicted as blindfolded to symbolize impartiality, she is now more commonly interpreted as representing impartiality, holding the scales (for fairness) and the sword (for swift justice).
What constitutional principles are related to impartiality?
Impartiality is linked to key constitutional principles, including the separation of powers, accountability, and the rule of law. Judicial independence, which is essential for securing impartiality in decision-making, upholds these principles, particularly the rule of law.
How does impartiality relate to judicial independence?
Impartiality is a core element of judicial independence. Judicial independence is crucial to ensuring impartiality in decision-making, which is essential for upholding the rule of law and ensuring fair and unbiased judgments.
What does the rule against bias require?
The rule against bias, established in common law, requires that an adjudicator be unbiased. The principle of nemo judex in causa sua (no one should be a judge in their own case) ensures fairness in legal proceedings.
What does impartiality mean in the context of judicial conduct?
Impartiality means that a judge must perform their judicial duties without favor, bias, or prejudice. This is emphasized in the Bangalore Principles of Judicial Conduct (2002), which stress that a judge’s decisions should be free from bias.
Why is the rule against bias important?
The rule against bias is essential for ensuring that judicial tribunals are independent and impartial. In Davidson v Scottish Ministers (No.2) [2004] UKHL 34, Lord Bingham explained that judicial tribunals must decide cases based on legal and factual merits, uninfluenced by external factors.
What disqualifies a judge from making a decision?
A judge is disqualified from making a decision if there is any factor that could prevent them from making an objective judgment, such as personal bias or an association that could distort their decision, as outlined in Davidson v Scottish Ministers.
What is the difference between actual and apparent bias?
In the UK, the rule against bias distinguishes between actual bias (where a judge is personally biased) and apparent bias (where there is a reasonable perception of bias), both of which undermine impartiality in legal proceedings.
How does Article 6.1 of the European Convention on Human Rights (ECHR) relate to impartiality?
Article 6.1 ECHR guarantees that everyone is entitled to a fair and public hearing by an independent and impartial tribunal when determining civil rights or criminal charges, reinforcing the importance of impartiality in legal proceedings.
What is “Actual Bias” in the context of a legal case?
Actual bias refers to a personal interest in the outcome of a case, which affects a judge’s ability to remain objective.
What disqualifies a judge from hearing a case under the concept of “Actual Bias”?
A judge will be disqualified if they have a personal interest that is not negligible, if they are a friend or relation of a party or a witness, or if personal experience prevents them from being objective. (Davidson v Scottish Ministers [2004] UKHL 34)
In Davidson v Scottish Ministers [2004] UKHL 34, what was stated about disqualifying a judge for personal interest?
A judge will be disqualified if they have a personal interest in the outcome of the case, are a friend or relation of a party or witness, or are unable to be objective due to personal experience.
How common is “Actual Bias” in legal cases?
Actual bias is rare in legal cases. It is emphasized that very few reported cases concern actual bias, and Davidson v Scottish Ministers is not one of them.
What is the concept of “Apparent Bias” in legal proceedings?
Apparent bias refers to the appearance of bias in a case, meaning that justice must not only be done, but should manifestly and undoubtedly be seen to be done. (R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256)
What is the test for “Apparent Bias” according to Porter v Magill [2001] UKHL 67?
The test for apparent bias is whether a fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased. (Lord Hope)
What are the two qualities of the “fair-minded and informed observer” as delineated in Helow v Secretary of State for the Home Department [2008] UKHL 62?
The two qualities are:
Fair-minded: A person who is detached and reserved judgment until understanding both sides of the argument, avoiding assumptions unless objectively justified.
Informed: The observer takes the trouble to inform themselves on all relevant matters and considers the context before passing judgment. (Lord Hope)
How does the concept of “Apparent Bias” align with the European Court of Human Rights (ECtHR) jurisprudence?
The UK follows the same test for apparent bias as the ECtHR, meaning there is no difference between the common law and ECHR tests. (R v Abdroikof [2007] UKHL 37; O’Neil v HM Advocate (No 2) [2013] UKSC 36)
What does the “fair-minded observer” know about a judge’s potential biases?
The fair-minded observer knows that fairness requires a judge to be unbiased and to be seen as unbiased. They recognize that judges, like anyone else, have weaknesses and that associations or actions may make it difficult for them to be impartial. (Lord Hope)
What principle is established in R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign [1996]?
The principle states that a person is disqualified from participation in a decision if there is a real danger that they may be influenced by a pecuniary or personal interest in the outcome, and this principle applies in public law, not just judicial or quasi-judicial bodies.
When can the rule against bias be inapplicable?
The rule may not apply in the following situations:
Necessity: Where a decision-maker cannot be replaced, or it is inevitable that there is an appearance of bias (e.g., quorum requirements).
Waiver: If a party knew of disqualification but did not object.
Policy and political bias: Legislative bodies may show political bias but must avoid personal bias.
What is the test for “predetermination” in decision-making?
The test for predetermination is whether there is an appearance of a closed mind or a predetermined decision before the decision-maker has considered all relevant matters. (R (Lewis) v Redcar and Cleveland BC [2008] EWCA Civ 746)
