Bias

February 27th, 2019

In R (United Cabbies Group (London) Ltd v Westminster Magistrates Court (2019) EWHC 409 (Admin) a Divisional Court reiterated principles relating to two categories of bias: presumed bias; and apparent bias. The Court said:-

  1. The applicable principles are not in doubt.

Presumed Bias

i) Where a judge has a direct pecuniary or proprietary interest in the outcome of a case, he or she is automatically disqualified, whether or not that interest gives rise to a reasonable apprehension of bias …

ii) The rationale of the rule is that “a man cannot be a judge in his own cause”. That being so, 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 …

iii) 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 … It needs to be more than a “tenuous connection”…. The impugned interest must be “direct and certain, and not remote or contingent” …

iv) In any case where the judge’s interest is said to derive from the interest of a spouse, partner or other 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” … The fair-minded observer does not assume that the interests of husband and wife are indistinguishable. They are not.

Apparent Bias

v) The test for apparent bias under English law and Article 6 of the ECHR 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”

vi) “In any case where the impartiality of a judge is in question, the appearance of the matter is just as important as the reality” …

vii) “While the test is certainly less rigorous than one of probability, it is a test which is founded on reality. The test is not one of “any possibility” but of a “real” possibility of bias” …

viii) “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 is not unduly sensitive or suspicious… she is not complacent either…” …

ix) When applying the test of real possibility “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” …. However, no attention will be paid to any statement by the judge as to the impact of any knowledge on his or her mind …

x) The test to be applied where there is a familial connection is the same in presumed and apparent bias cases …”

 

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