Bias/Predetermination
Two-stage Approach:
1. Automatic Disqualification
Financial, personal
Pinochet
2. Porter v Magill
1. Automatic Disqualification:
R v Bow Street Metropolitan Stipendiary Magistrates ex parte Pinochet Ugarte
(No.2)
The applicant, a former head of Chile was arrested while on a visit to London
following warrants for his arrest alleging various crimes against humanity.
Amnesty International, who had campaigned against the applicant, obtained
leave to intervene in the appeal.
It was discovered that one of the judges who heard the appeal, although not a
member of AI, was an unpaid director and chairman of a charity which was
wholly controlled by AI.
Lord Browne-Wilkinson –
It was not alleged that the judge was biased, only that “there was a
real danger or reasonable apprehension or suspicion that [he] might
be biased.”
The case appeared to fit the category of bias cases in which a judge
had a “relevant interest in the subject matter”.
In such a case the judge 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.”
The list of historically accepted types of interest is arguably not
exhaustive and there was “no good reason in principle for so limiting
automatic disqualification.”
It was enough that the judge was closely associated with AI.
Directed that case be reheard before fresh committee of HL.
Seems to be a bigger focus on the appearance of bias rather than actual justice.
Not just financial bias – “favour with the cause”.
Personal – how far do we look back? What kinds of interests count?
Slippery concept – stretching what we mean by “interest”.
High profile case – difficult context
“Hard cases make bad law” too focused on appearance of impartiality.
Previous case of Gough – had to be a “real danger of bias”.
Not really on these facts, forced to use automatic disqualification.
Decided before Porter v Magill – would it be decided differently today?
Seems to go against the de minimis standard set in Locabail –
Parties go digging, more litigation.
Ensures that there is no drain on resources – if any tenuous link allowed,
people may keep digging if they lose.
Automatic disqualification says that idea that judges should put aside their bias when
they sit doesn’t exist – increases judicial transparency.
2. Porter v Magill:
The Conservative majority of Westminster Council adopted a policy to sell council
houses in parts of the City where it was believed that homeowners were more likely
to vote Conservative – “the homes for vote scandal”.
Issue = could the resulting investigation’s decision be quashed where an initial press
conference appeared to be biased?
Two-stage Approach:
1. Automatic Disqualification
Financial, personal
Pinochet
2. Porter v Magill
1. Automatic Disqualification:
R v Bow Street Metropolitan Stipendiary Magistrates ex parte Pinochet Ugarte
(No.2)
The applicant, a former head of Chile was arrested while on a visit to London
following warrants for his arrest alleging various crimes against humanity.
Amnesty International, who had campaigned against the applicant, obtained
leave to intervene in the appeal.
It was discovered that one of the judges who heard the appeal, although not a
member of AI, was an unpaid director and chairman of a charity which was
wholly controlled by AI.
Lord Browne-Wilkinson –
It was not alleged that the judge was biased, only that “there was a
real danger or reasonable apprehension or suspicion that [he] might
be biased.”
The case appeared to fit the category of bias cases in which a judge
had a “relevant interest in the subject matter”.
In such a case the judge 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.”
The list of historically accepted types of interest is arguably not
exhaustive and there was “no good reason in principle for so limiting
automatic disqualification.”
It was enough that the judge was closely associated with AI.
Directed that case be reheard before fresh committee of HL.
Seems to be a bigger focus on the appearance of bias rather than actual justice.
Not just financial bias – “favour with the cause”.
Personal – how far do we look back? What kinds of interests count?
Slippery concept – stretching what we mean by “interest”.
High profile case – difficult context
“Hard cases make bad law” too focused on appearance of impartiality.
Previous case of Gough – had to be a “real danger of bias”.
Not really on these facts, forced to use automatic disqualification.
Decided before Porter v Magill – would it be decided differently today?
Seems to go against the de minimis standard set in Locabail –
Parties go digging, more litigation.
Ensures that there is no drain on resources – if any tenuous link allowed,
people may keep digging if they lose.
Automatic disqualification says that idea that judges should put aside their bias when
they sit doesn’t exist – increases judicial transparency.
2. Porter v Magill:
The Conservative majority of Westminster Council adopted a policy to sell council
houses in parts of the City where it was believed that homeowners were more likely
to vote Conservative – “the homes for vote scandal”.
Issue = could the resulting investigation’s decision be quashed where an initial press
conference appeared to be biased?
