The law of disqualification arguably rests upon two principles of law; Nemo judux in causa sua, that no-one should be a judge in his own causeand that fundamentally Justice must, not only be done but should manifestly and undoubtedly be seen to be done. With these principles taken into account precedence had developed what had appeared to be definitive tests for bias and disqualification. The recent case of ex Parte Pinochet Ugarte (No 2)1 all ER 577 appears to have cast uncertainty upon the tests for bias.
This essay will focus upon these tests and the changes that the Pinochet ruling has brought about. The wider implications of judicial bias and disqualification will also be explored within the context of a rapidly changing United Kingdom, and especially the effects that the introduction of the Human Rights Act 1998 may have for the judiciary. Disqualification for bias is divided between automatic disqualification and that of real danger. Firstly automatic disqualification was developed in Dimes v Grand Junction Canal which involved a judge who was a shareholder in a company appearing before him as a litigant.
Where the judge was shown to have an interest in the outcome of the case, which he had to decide, or had decided he would be automatically disqualified. This rule relates strongly to the presence of a pecuniary interest and whether the outcome of the case could realistically or directly affect the judges interest. Blackburn J in R v Rand stated any direct pecuniary interest, however small, in the subject matter of inquiry, does disqualify a person from acting as a judge in the matter
The second rule provided for the disqualification of a judge and the setting aside of a decision, if on examination of all the relevant circumstances, the court could conclude that there was a real danger (or possibility) of bias. This test requires further investigation into whether some form of personal connection on the part of the judge, creates suspicion of bias. This test; arguably clarified in R v Gough, which involved the issue of possible jury bias. Lord Goff defined the test; to be used when examining all cases of apparent bias whoever the decision maker:
I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question in the sense that he might unfairly regard (or have unfairly regarded) with favour or disfavour, the case of a party to the issue under consideration by him
The Court of Appeal in the case of Dallaglio concluded that the law had been settled by Gough. It is now necessary to explore the decision made in ex parte Pinochet and the effects it has had on the tests for bias, and the wider implications of the decision. The House of Lords did not follow the reasoning laid down in Gough but rather, extended the automatic disqualification rule. On 25th November 1998 the House of Lords decided that General Pinochet was not immune to arrest and extradition in regard to crimes committed against humanity, also giving permission for Amnesty International to act as interveners in the case.
After his decision was made, General Pinochet applied to the House of Lords to set aside is previous decision, as it had become known that one of the judges, Lord Hoffman, was the unpaid director and chairperson of Amnesty International Charity Limited, which was controlled by Amnesty International and that his wife was employed by Amnesty International. Pinochet argued that the connections had not been disclosed and as such may lead to the appearance of possible bias.
In December 1998, a panel of five Law Lords found that the close links between Amnesty International Charity Limited and Amnesty International were sufficiently close to be deemed one organisation. Lord Browne-Wilkinson stated, Close as these links are, I do not think it would be right to identify Lord Hoffman personally as being party to the appeal. However the relationship was found to imply that Lord Hoffman did have an interest in the outcome of the proceedings.
If the reasoning in Gough had been followed, the finding of a non-pecuniary interest would have led to consideration of real danger or reasonable suspicion of bias in the case, automatic disqualification would not result. However Lord Hoffman was automatically disqualified, thus extending the test. Lord Browne-Wilkinson stating: Once it is shown that the judge is himself a party to the cause, or has a relevant interest in the subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias.
The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure. Lord Hutton warranted the extension stating that; I am of the opinion that 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 shareholding..
In automatically disqualifying Lord Hoffman, the court did not have to apply the real danger test, which was arguably the preferred option of Lord Woolf, .. The real danger test is quite capable of producing the right answers and ensures that the purity of justice is maintained across the range of situations where bias may exist. Perhaps it may seem that applying the real danger test to a senior judge in a highly publicised internationally monitored case would be politically damaging.
It can be argued that in becoming a senior judge that the judges themselves should be more prepared for insinuations of possible bias. That the highest Court in England could suffer a real danger of bias perhaps reflects poorly against the professionality and quality of the English justice system, it highlights the fact that the British judiciary is unused to its actions being so closely monitored. Not only must a judge bring an unbiased and impartial mind to the discharge of his duty. He must(also) be seen to be impartial.
Such a statement by Lord Hope suggests that judges somewhat have to prove their impartiality, Slapper writing in The Times questions how neutral or disinterested in the matter can we require a judge to be? Ex parte Pinochet (No2) has focused attention onto the issue of judicial impartiality, and perhaps the view that the impartiality of judges is no longer assumed. Slapper points to the old understanding of judicial duties involved a principle that, having been appointed as a person of balanced and independent thinking, a judge would be able to bring unbiased analysis to a case irrespective of any strong opinion he or she might encounter.
It may become necessary for judges to disclose all interests in cases they are to hear, but such a process will need further clarification on exactly what is to be disclosed and what exactly will define the need for disqualification. If an interest is disclosed and the need for disqualification waived by the relevant parties, does this correlate with the idea of justice being seen to be done? The answer here is difficult to find, doubt may have been created on the particular judges impartiality, which is likely to damage the public perception of that judge having an unbiased mind.
Such possibilities may induce the withdrawal of judges from public life. In August 1999, Judge Patrick Hooton stood down when he found himself about to hear an appeal from an animal rights campaigner at Winchester Crown Court. As a member of the Countryside Alliance and a self confessed supporter of shooting, the judge arguably believed his impartiality would be challenged. It can be argued that the judge in this case saw that the challenge would be likely to be successful, that he would be perceived to not bring an unbiased analysis to the case, this is arguably a poor indication of the public perception of the judiciary.
Most notably, ex parte Pinochet (No. 2) has created a cloud of uncertainty around the relevant tests for bias. The automatic disqualification category has lost its limited scope. It can be argued that using the real danger test would still have produced the same result, that there was a real danger that the relationship between Amnesty International and Lord Hoffman, which was sufficiently close, creates possibility for bias.
The judgement does attempt to clarify the confusion surrounding the tests, by suggesting that the two tests would lead to the same results, Their application by the Appellate Courts is likely in practice to lead to results which are so similar as to be indistinguishable. However Kate Malleson disagrees with such a view, and she points to case law arguing that different results are achieved when using the different tests, pointing to the view of Simon Brown LJ that the real danger test no longer deals with the appearance of bias: ..
It will be seen, therefore, that by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias. The judgement in ex parte Pinochet (No2), has arguably prompted five cases of claimed judicial bias. The judgement in these cases was delivered on the 17th November 1999, and has arguably gone some way to clear murky water. The test of real danger was upheld, that if a real danger scenario should arise then disclosure should be made to the relevant parties in advance of the hearing.
Factors were not to be listed which might or might not give rise to a real danger of bias, but that everything would depend on the facts. In cases of automatic disqualification the judge should rescue himself from the case before any objections are made. Only the appeal of Timmins v Gormley was upheld and a retrial ordered on the grounds that Mr Recorder Braithwaite critical views of insurance companies expressed in legal journals was sufficient to display real danger of bias.
However judges must remain aware of the possibility of bias and that further development of rules and procedures is needed if the judiciary is to maintain Lord Hewarts dictum. It can be suggested that the implications of this case for the judiciary may be far reaching, the constitutional reform package of the Blair government and the introduction of the Human Rights Act 1998 in October 2000, will increasingly demand the need for an impartial judiciary. It is argued that the HRA will add a political dimension to the role of the judiciary.
If judges are to be increasingly involved in politics, it is paramount at this time to be seen to be impartial, Lord Hope in ex parte Kebilene said: It is now plain that the incorporation of the European Convention of Human Rights into our domestic law will subject the entire legal system to a fundamental process of review and where necessary, reformed by the judiciary. Entering the political arena will require its judicial actors to become increasingly non-political, such a view could certainly be supported by the introduction of a judicial appointments commission.
The i8ntroduction of the HRA is not necessarily a negative step, the UK has long awaited a Bill of Rights, the HRA may be seen as a way to shake off old and bad practice thus adding to the modernisation of British democracy. Judicial independence may have been challenged but Beloff argues if perceptions of the essence of justice have become more sensditive, the institutions, which provide that justice, must adapt to those perceptions.