Written and recorded by Ben Amunwa, The 36 Group
Hello. My name is Ben. Um, Anwar. And welcome to this Webinar Siris on bias. I'm a barrister. I practice in civil and public law at the 36 Group in London. So the aims of this Webinar Siris are to introduce you to the concept and the law, off bias and how complaints of bias are dealt with in a practical manner. This is an interesting area and I say that with the full acknowledgement that I'm a little bit partial to it. The fact is that allegations of bias raised some of the more important and fundamental legal issues that regulates the affairs, off courts and tribunals. It raises issues about the interests or fairness about the need to provide a fair and independent and impartial decision maker to resolve civil disputes. It also raises issues about perception and trust in society between people. On the one hand, Andi judges on the other, it's often said in the case law in this area that justice is to be done but also must be seen to be done. And that's a principle which is at the heart of our justice system is very much live on in play. When a person complains about bias or the appearance off bias. More often than not, complaints of bias relates to this appearance off bias rather than the actual fact off bias. So it's pretty rare to find judgments where a judge off a lower court has been found by an appeal court to have actually being biased against someone. So that deals with the preamble on why this topic is so interesting. And I hope you find it interesting to I say this on all my webinars now. But I'm pleased to leave some feedback in the comments and the star rating system. Once you've been through this webinar, Siri's and being through the materials I'd love to hear from you, I'd love to know what you think off what we're trying to do. So in this part one what we're going to be doing is discussing the test of bias. So what the law says a bias complaint should be responded with, and then we're going to look at some of the attributes associated with this test. Finally, we are going to conclude by looking at the procedure or procedures I should say, for raising a complaint of bias and before you start to panic. There is no specific form on which this should be done, but I'll come back to that later. What's the test off bias? When in law, can a judge be found to be biased or have the appearance off bias? Well, we turn for that test to the classic case House of Lords case off Porter and McGill. In that case, what the House of Lords was aiming to do was to marry up the obligations off the state under the Human Rights Act 1998 and the European Convention in particular. Article six. The Right to a Fair trial with the common law learning on when judges may be found at common law to have the appearance off bias or be at risk off bias on the way in which they resolve this is through a two stage test. The first stage is for the judge to look at all off the relevant circumstances and facts that have a bearing on the question off bias. The second stage is to then, in light of that factual matrix to consider whether a fair minded and informed observer would conclude that there was a real possibility off bias. No, that test the two stages of it are objective. So this is not a test that is conducted through the perspective off the individual who's complaining about bias. And we'll come back to unpack what the fair minded and informed observer is supposed to be like, how they're supposed to behave and what sort of characteristics are associated with them. But for now, it's important to note that it's closely related to this principle, As I said that justice is not only to be done but must be seen to be done. Andi. It's only right. That context in which this test is going to be applied has to be one where judges are sensitive to and take precautions over how not only how fair they are in treating a case, but how they might be perceived as potentially being unfair, given the factual circumstances. So we're going to move on to the next part, which is what are the attributes off the fair minded and informed observer? What does this phrase actually mean? So there's been since Porter and McGill ah, whole run of cases, as you would probably expect exploring and elaborating on and painting Vivid Portrait. It's off this mythical legal entity, the fair minded and informed observer. So the first thing, as uh, is probably clear, is that the fair minded observer has to be one who is no unduly suspicious, not on Julie sensitive. So it's important to note that this is about fairness. The Fairmont informed observer is going to determine their view on whether there's a real possibility of bias based upon a fairly detached and objective assessment. So that's what that attributes is. Getting at really is the need for a separation between the observer and the person complaining about biased because the person complaining about bias may have all manner off emotive or subjective influences that don't bear up when analysed objectively. In the case of La Wow and Northern Spirit Limited, that's a 2003 case. Lord Steyn at Paragraph 14 also added, But the family informed observer adopt a balanced approach. There is also a theme that runs through the case law, which is recognition about the importance of public perception off the administration of justice. So in that case, Lord staying recognized that there are higher standards today than there used to be several decades ago in terms of public confidence and what the public requires off the administration of justice, those sorts of values need to be given weight. Need to be in the mind off the A fair minded and informed observer. Perhaps the most vivid illustration off these characteristics is, in the case of Hello, that's H B L O W versus Sector state for the Home Department and another. That's 2008 case in which Lord Hope vividly painted some of the characteristics of the Observer, and he he comments it. That's the observer has to be someone who reserves their judgments, someone who doesn't leap to conclusions instantly. Andi needs to reserve their judgment on every point until they've seen the full picture and both sides of the argument. So they are also someone who is where necessary, robust and not complacent. They know that judges aren't machines. They are human beings who is susceptible, like the rest of us, two weaknesses to influence to hierarchy to the fact that they might be hearing from a representative who may well have provided instructions to them in the past. On if they're a part time judge may continue to do so. Things like that may work their way into the assessment that is made by the fair minded informed observer because we all know that everyone has weaknesses. And, of course, they know that when looking at these issues, they have to do so objectively. They have to justify any suspicions that they have by reference to objective evidence and objective standards. The Observer is that sort of person who informs himself actively make sure that they know about the full circumstances off the case, the full circumstances of any allegations off bias one way or the other. And a key point here, which opens up quite a range of complexities in these sorts of cases, is that part of being an informed observer is about grasping the social context, the political context, the economic context, the cultural context in which a judge is being analyzed as I'm not biased or not. So all of those factors of those contextual factors will play up heart, almost inevitably, in whether or not the judge is well can be perceived as being biased. A further rider was added to the test in Porter and McGill in the case off what's and what's on. That was a 2015 case again, The citation is in your reference sheet now. What's what is important? Andi is going to resurface later on in this Siri's, because what was held there by the court of Appeal was that the Fairmont Uninformed observer would be taken as knowing about the standards that applied to legal professionals in terms off practising members of the bar and practising solicitors and those practitioners who serve as part time judges. So they will be taken to be fully aware off, for instance, the stringent ethical standards that apply the fact that they need to be fully adherent to those standards on also the fact that regulate ary punishment can follow ous well as the destruction of professional reputations in the event that a part time judge who is also a practitioner act in a blatantly biased way. So that's quite important, because ultimately, that the legal profession on the judiciary is a relatively small community. And so, by building into the fair minded and informed observers, assessment the knowledge off ethical codes, the knowledge or professional standards that must be upheld, that then provides its considerable amounts or flexibility when assessing the, uh potential for buyers that is based upon relationships between legal professionals on judges. And again, this will resurface in a case which I'll talk to you about very shortly in the subsequent part off this webinar Siri's. We're going to think now about how and when parties can raise complaints about bias. And there's two main ways. Number one is an application for recusal that is an application asking a judge to step aside and to be replaced by another judge. The other way in which bias can surface as part of a complaint is, of course, on appeal against an adverse judgement. We're going to look at these two routes a bit more in de cel, so recusal. There is no single part off the civil procedurals, which deals with applications for judges to recuse themselves to step aside. But essentially where a party or, if you have a zone adviser concerns about a judge either due to their conduct or due to their associations or something that they have said that there may be a really risk off bias or apparent bias, then it's important to consider making an application for recusal. Do this as early as possible. I would say these are difficult, sensitive Andi, potentially very disruptive applications to make, because if you're successful and a new judge has to be found, it's highly unlikely that the judge will be replaced on the same day that trial or a hearing will proceed on altered and on the original time timeframe. So these air applications that are not always welcomed with enthusiasm but the earlier that this could be done. Let's say if you receive notice that a trial is to be heard by a particular judge, you do a bit of research and you find out something which in your view, is a really concern and would satisfy the the difficult and multifaceted test in portrait McGill. Raze it, raze it with the opponent, raise it with the court, do it in correspondence before the hearing, or is far in advance of any hearing as possible. Because if you raise it on the eve of the hearing or even at the hearing itself, which, of course you can do orally, it will be more disruptive. It could incur more costs and costs will be thrown away because your client will be have been prepared for a trial. The other party will be prepared for a trial, and yet it cannot go ahead. Potentially. This No. One provision in CPR governs this area. But of course, Part 23 which governs the making of applications, applies here. So follow part 23 if there is time in which to do so. And if you you have a prior notice of this potential risk of bias. But use the Part 23 procedure, pay the A court fee for an application, put it in and the court will consider it. And hopefully these problems can be anticipated and weeded out in advance. Then the judge can be replaced and everything. Congar oh, along as planned. But as I said, if you need to make an aural application, then it can always be done. So there's a point of practice here, which is that when hearing recusal applications, clearly, what will often happen is that the judge who you're saying is at risk of being bias or the appearance of bias is the one who decides on the recusal application itself. This is uncomfortable and awkward situation. It's not yet being resolved by the CPR or the rulemaking committee. But it is a position which is regularly the case. Andi. Of course, there are cases which lead to appeals because the judge he was refused to recuse themselves has made him a judgment which is adverse to the complainants on that then gives rise to an appeal on the point off bias. So what the higher courts have said in these situations and the case of Resolution Chemicals LTD. Versus H. Lundbeck, which the 2013 Court of Appeal case ants. This nuggets off wisdom. It says that judges should er on the side of caution when deciding recusal applications, although of course, whilst precaution is necessary, the legal test needs to be satisfied. There may be times because of appeal said, when the fact off limited judicial resources in particularly specialised areas of law may well prevail, however, over the precautionary principle. So on the one hand, judges need to be sensitive. They need to be picking up on when parties have a reasonable point to make about the appearance of bias, but also they need to recognize that there may well be no one else. You can hear this case within a reasonable stretch of time. And so there's a careful balancing act, and it's going in it to inevitably be a fat, sensitive issue as to whether the judge has struck the right balance between on the one hand, giving the parties resolution and hearing the case on, on the other hand, paying due regard and being sufficiently sensitive to the potential for public perception on public confidence to be undermined by the risk of bias. The Second Avenue for raising allegations off biases, of course on appeal. So, for example, what might happen in this scenario is that after judgment, the parties go away, think that everything is done and dusted. And then some further information comes to light to do with the links between maybe a lawyer in the case or a company and involved in the case. And the judge a connection which wasn't previously disclosed, perhaps, or hasn't been fully ventilated by the judge and incomes and appeal, possibly even out of time seeking to overturn the adverse judgement on the basis that the judge waas biased or that there was a real possibility of the appearance of bias. Now, of course, the test on appeals outside of second appeals. So appeals against appeals is that the judgment off the lower court was wrong or unjust due to some serious procedural or other irregularity. And it's that second limb the unjust due to a serious or serious procedural or other irregularity in which the allegation of bias of the complaint of bias often comes into play. Of course, a biased judge can also be wrong on the merits as well. So the appeal court, in this scenario, assuming that permission to appeal his granted, will be looking with great care at the circumstances. Off the judge and their complaint of bias that plated bias against them will be applying portrait McGill with all of those riders that are stacked on to it about the attributes off the fair minded and informed observer. But in doing so, appeal courts will often be looking at the decision of the judge about whether or not to recuse themselves. So let's assume that the party has complained about bias to a judge, ask the judge to recuse themselves, and the judge has refused to recuse themselves and then come out with an adverse judgement. The appeal comes in on what the appellant is saying is that the judge made a wrong decision in refusing to recuse themselves. When that argument is being run, the appeal courts can effectively decide the matter for themselves. They can decide on what the right approach to the recusal application should have. Bean, the appeal court's not sort of tied to simply reviewing the legality off the first judge's decision on the refusal recusal application. They have effectively free rein to re here. The application for recusal a final point just to round off on this topic. It's often the case that in courts and tribunals, judges who may well have read into the papers to some extent or even fully will come into court and we'll start off by giving one or other of the parties a little bit of a hard time are in terms of assessing the merits of their case, Perhaps the judge might have formed a provisional view that is going to be very difficult for your client to succeed or for your opponents at defense to succeed. Now, judges need to be aware that they have to be sensitive in making such expressions off opinion about cases before having heard submissions evidence on and so on. And the reason for that is that if they come into court, Andi display a closed mind then that clearly may well found the basis off on appeal or application for recusal against them on grounds of bias. What is acceptable is for judges who have done the reading Onda, who have considered full written argument, for example, to express a provisional view subject, of course, to giving the party who they are, who their provisional view is against. The opportunity to persuade the to take them to the evidence and take it is to the submissions at which should sway their view in the other direction if that opportunity is and in any way compromised or not provided by the judge. Then again, that is further evidence that a judge may well have closed their mind to one side of the argument and stepped over at the boundary off, being fair and independent and impartial into being at risk off the perception of bias. So that deals with the test of bias, the attributes of the fair minded and informed observer, the many, many attributes which she has, which we have to bear in mind when applying this test, and it also deals with the two main ways in which complaints of bias cannot rise in the context of civil proceedings. Thank you so much for listening. Please do give some feedback rate this webinar, however you wish give good, bad, indifferent feedback. Whatever you want to say is fine. I'll take it on board, and I really hope to see you next time in Part two off this Siri's when we're going to be looking in more depth and more detail about allegations of bias playing out in the senior courts and how those decisions have landed in terms off case law. Thanks again, I'm Veneman want, and I'll see you in the next part.
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