Courts consider issue of judges and bias

The courts have for a while been concerned about questions of
possible bias of those acting in a judicial capacity in the light
of the Human Rights Act 1998.

In Re Medicaments and Related Classes of Goods (No 2) [2001] 1
WLR 700 the court of appeal held that, unless bias was established,
the personal impartiality of the judge was to be presumed. But the
court had also to decide whether, on an objective appraisal, the
material facts gave rise to a legitimate fear that the judge might
not have been impartial.

The material facts were those which were ascertained on
investigation by the court. The key difference from previous
authority is that the court should approach the matter, not passing
judgement on the likelihood that the tribunal was biased, but from
the viewpoint of whether the fair-minded observer (now descended
from the Clapham omnibus) would conclude that there was a real
possibility of bias.

This has now come to be considered in a family court context. In
M v the London Borough of Islington (26 October 2001) a district
judge was a member of project groups involving Coram Family and two
local authorities. He was involved with cases which subsequently
came before the court.

Should he, given the benefit of knowledge about the aims of the
work, hear care proceedings?

Giving judgement the president of the family division expressed
the view that a judge should ask himself, when invited to play a
part in an activity, how involved he was likely to become in the
management of a scheme or the formulation of criteria necessary for
the scheme, which might have an inhibiting effect on the trial of a
particular case or lead the fair-minded observer to conclude that
there was a real possibility that the judge might be influenced by
membership of a working party or committee to a certain point of
view relevant to the outcome of a case.

The president was at pains to emphasise the importance of the
judiciary continuing to work in conjunction with all disciplines
involved with children. There were numerous committees in which all
worked together to the benefit of children, and nothing she said
was intended to discourage that involvement. Nonetheless it will
remain a difficult line to draw.

Richard White

White and Sherwin Solicitors