Published online by Cambridge University Press: 05 June 2014
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.