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5 - Standards of conduct on the bench

Published online by Cambridge University Press:  05 June 2014

Shimon Shetreet
Affiliation:
Hebrew University of Jerusalem
Sophie Turenne
Affiliation:
University of Cambridge
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Summary

Introduction

5.1 The principle of impartiality underlies the judicial oath to do justice ‘without . . . affection or ill-will’. Lord Bingham explained:

A judge must free himself of prejudice and partiality and so conduct himself, in court and out of it, as to give no ground for doubting his ability and willingness to decide cases before him solely on their legal and factual merits as they appear to him in the exercise of an objective, independent, and impartial judgment.

It would be possible to devote pages to similar statements of principle and to some extent English lawyers can be forgiven for doing so. Judicial impartiality is said to be ‘the fundamental principle of justice’ both at common law and under Article 6 of the European Convention on Human Rights (ECHR): ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.

It is well known that a judge must be impartial in two senses; he must neither be actually biased towards a party in the case, nor must he appear to be biased to the (hypothetical) fair-minded observer. Should either be the case, then he must disqualify himself. Devlin LJ observed that ‘Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so’. To the extent that the fair-minded person would guess that this might happen, the judge must recuse himself. Even in cases where some cause for apparent bias is present but the threshold is not met, a judge would be wise to recuse himself in any event, although there may be practical considerations and the possibility of waiver by the parties affected to take into account. This affords a flexibility in practice which may achieve more than if the rules for disqualification were to be enshrined in statute, as occurs in the United States. In England, the two categories of actual and apparent bias are developed by case law, accompanied only by a number of statutory prohibitions against certain types of adjudications.

Type
Chapter
Information
Judges on Trial
The Independence and Accountability of the English Judiciary
, pp. 179 - 242
Publisher: Cambridge University Press
Print publication year: 2013

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References

Bingham, T., ‘The Judge as Lawmaker’, in The Judge (Oxford University Press, 1981), p. 3Google Scholar
Lucy, W., ‘The Possibility of Impartiality’ (2005) OJLS 25, 3.
Frank, J., ‘Disqualification of Judges’ (1974) 56 Yale Law Journal605CrossRefGoogle Scholar
Wade, H.W. and Forsyth, C.F., Administrative Law, 10th edn (Oxford University Press, 2009), ch. 13Google Scholar
Sedley, S., ‘When Should a Judge Not Be a Judge?’ (2011) 33 LRB 1, pp. 9–12.
Lawton, F., ‘Judging the Judges’, The Times, 14 July 1998.
Blom-Cooper, L.J. and Drewry, G., Final Appeal: A Study of the House of Lords in its Judicial Capacity (Oxford: Clarendon Press, 1972), pp. 86–7Google Scholar
Friedland, M., A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995), p. 157.Google Scholar
Thomas, J., Judicial Ethics in Australia, 3rd edn (Chatswood NSW: LexisNexis Butterworths, 2009), p. vGoogle Scholar
Sedley, S., ‘Judicial Ethics in England’ [2003] 29 Legal Ethics6.Google Scholar
Bingham, T., The Business of Judging. Selected Essays and Speeches (Oxford University Press, 2000), p. 69.CrossRefGoogle Scholar
Murray Gleeson, CJ, ‘Foreword’, in The Council of Chief Justices of Australia, Guide to Judicial Conduct, 2nd edn (Melbourne: Australasian Institute of Judicial Administration Inc., 2007).Google Scholar
di Frederico, G., ‘Independence and Accountability of the Judiciary in Italy. The Experience of a Former Transitional Country in a Comparative Perspective’, in Sajo, A. and Bentch, R. (eds), Judicial Integrity (Leiden: Brill, 2004), p. 15.Google Scholar
Malleson, K., ‘Judicial Bias and Disqualification after Pinochet (No 2)’ (2000) 63 MLR 119.
Goudkamp, J., ‘Judicial Bias and the Doctrine of Waiver’ (2007) 26 CJQ 310, 327.
Endicott, T., Administrative Law (Oxford University Press, 2009), p. 177Google Scholar
Hammond, G., Judicial Recusal: Principles, Process and Problems (Oxford: Hart Publishing, 2009), p. 52.Google Scholar
Elliott, M., ‘The Appearance of Bias, the Fair-Minded and Informed Observer, and the “Ordinary Person in Queen’s Square Market”’ (2012) CLJ 247
Olowofoyeku, A., ‘Bias and the Informed Observer: A Call for a Return to Gough’ (2009) 68(2) CLJ 388.
Boulton, W.W., Conduct and Etiquette at the Bar, 5th edn (London: Butterworths, 1971), pp. 37–8.Google Scholar
The Canadian Judicial Council, Commentaries on Judicial Conduct (Cowansville, Quebec: Yvon Blais, 1991), p. 12Google Scholar
Hood Philips, M., Constitutional and Administrative Law, 5th edn (London: Sweet & Maxwell, 1973), p. 521.Google Scholar
Gibb, F., ‘Avoiding Complaints – Keeping Judges Up to the Mark’, The Times, 10 February 2009.
Harvey, C.P., The Advocate’s Devil (London: Stevens & Sons, 1958), pp. 50–1.Google Scholar
Pollock, G., Mr Justice McCardie: A Biography (London: John Lane, 1934) pp. 162–6.Google Scholar
Samuels, A., ‘Gagging the Judges’ (1972) 122 New Law Journal337.Google Scholar
Kirby, Michael, ‘Judicial Stress’, Annual Conference of the Local Courts of New South Wales, 2 June 1995.
Spencer, J.R., Jackson’s Machinery of Justice, 8th edn (Cambridge University Press, 1989) 372.CrossRefGoogle Scholar
Feldman, D. (ed.), English Public Law (Oxford University Press, 2004), paras. 20, 33, 36.Google Scholar

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