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(a) The Need for Impartiality in the Process of Decision-making.

The term bias is wide enough to encompass an operative prejudice whether conscious or unconscious.^"^ According to de Smith,^^ procedural fairness requires "that the decision-maker should not be biased or prejudiced in a way that precludes fair and genuine consideration being given to the arguments advanced by the parties. Although perfect objectivity may be an unrealisable objective, the rule against bias thus aims at

Article 24.

See, e.g., the dicta o f Lord O' Brien, C. J., in R. v. Queen's County Justices, [1908] 1 I. R. 285, at p. 294.

de Smith, S. A., Woolf, The Rt. Hon. The Lord and Jowell, Jeffrey, Judicial Review o f Administrative Action [London: Sweet & Maxwell, 5**^ edn., 1995], at p. 521.

preventing a hearing from being a sham or ritual or a mere exercise in "symbolic reassurance", due to the fact that the decision-maker was not in practice persuadable. The rule against bias is concerned, however, not only to prevent the distorting influence of actual bias, but also to protect the integrity o f the decision-making process by ensuring that, however disinterested the decision-maker is in fact, the circumstances should not give rise to the appearance or risk o f bias."

The requirement that the decision-maker should act impartially when making decisions is often said to be one o f the most elementary requirements o f fair treatment.^^ It is also recognized as a ftmdamental human right.^^ It is quite possible that a decision­ maker may be biased for good reasons, bad reasons or no reasons. Yet, bias or prejudice in the process o f decision-making militates against the requisites o f fairness. The rule against bias is wide enough to accommodate two broad species, i.e., (i) bias in a strict sense, encompassing personal bias, systemic bias and cognitive bias, and (ii) the loss of independence due to, perhaps, reasons such as bribery or duress. Each o f these different types o f bias warrant some analysis.

See, e.g., Galligan, D. J., Due Process and Fair Procedures [Oxford: Clarendon Press, 1996], at p. 437.

See, e.g., Locabail (UK) Ltd. v. Bayfield Properties Ltd., [2000] A ll E. R. 65, at p. 69, where the Court of Appeal observed: “In the determination o f their rights and liabilities, civil or criminal, everyone is entitled to a fair hearing by an impartial tribunal. That right, guaranteed by the European Convention on Human Rights and

(b) P e r so n a l B ias.

Personal bias "emphasizes factors personal to the official. It includes personal preferences or feelings; a personal interest, whether financial or emotional; or a personal connection to the matter through the interests o f family or friends. This list is illustrative rather than comprehensive, and the guiding test should be whether, because o f some factor, the judge or other official has prejudged or is rendered incapable o f properly judging or deciding the issue."^* Personal bias is, perhaps, the most common type o f bias encountered and has been the subject o f much litigation in the Commonwealth. It essentially militates against fair treatment and results in a denial o f process rights. A decision infected by personal bias is a decision arrived at based on irrelevant considerations and, therefore, constitutes an abuse of power. Operative bias, on the part o f a decision-maker affects one's faith in the system and does not augur well for confidence to be reposed in the process o f decision-making. As Lord Denning^^ observed:

"Justice must be rooted in confidence; and confidence is destroyed when right- minded people go away thinking: "The judge was biased”.''

What is, fundamentally, at issue is the retention o f public confidence in the system, and maintaining the independence o f the process o f decision-making. "The reason for the strictness o f the rule [against bias] can be traced more to considerations o f public policy than to the actuality o f the bias affecting the judge.

Fundamental Freedoms ...., is properly described as fundamental.” zTuJ., at p. 438.

Denning, Lord, The Discipline o f Law [Kent: Butterworths Law Publishers, 1979], at p. 87.

Marshall, H. H., Natural Justice [London: Sweet & Maxwell, 1959], at p. 28. 122

Personal bias can infect a decision, and thereby render it amenable to challenge, if a decision-maker has a pecuniary interest in the matter,^ ^ professional^^ or family^^ links with the parties, intermingles functions such as where the same person hears the case at first instance and in appeal^'^ or functions as investigator and prosecutor,^^or is prejudiced because o f his political views or prejudices.^^ The rule against bias is rather absolute in its operation. A decision is either vitiated by bias or it is not.

The English courts tend to be more willing to hold that a decision-maker's decision is vitiated by bias more readily in circumstances where a pecuniary interest is involved. The leading authority in this area is the case o f Dimes v. Grand Junction Canal Proprietors?'' In this case the Lord Chancellor, Lord Cottenham, had affirmed decrees made by the Vice-Chancellor in litigation between Dimes and the canal proprietors. Dimes subsequently discovered that the Lord Chancellor had for a long period held shares in the canal company in his own right and as a trustee. Dimes appealed to the House o f Lords against all the decrees made by the Lord Chancellor on the ground that he was disqualified by interest. Lord Campbell, setting aside the decrees made by the

See, e.g.. Dimes v. Grand Junction Canal Proprietors, (1852) 3 H. L. Cas. 759; R. v.

Hendon Rural District Council, ex parte Chorley, [1933] 2 K. B. 696.

See, e.g., R. v. Sussex Justices, ex parte McCarthy, [1924] 1 K.B. 256.

See, e.g.. Metropolitan Properties (F. G. C.) Ltd. v. Lannon, [1969] 1 Q. B. 577.

See, e.g., Hannam v. Bradford Corporation, [1970] 1 W. L. R. 937; R. v. Kent Police Authority, ex parte Godden, [1971] 2 Q. B. 662.

See, e.g., R. v. Barnsley Metropolitan Borough Council, ex parte Hook, [1976] 1 W. L. R. 1052.

See, e.g., R. v. Halifax Justices, ex parte Robinson, [1912] 76 J. P. 233; c .f, R. v.

Nailsworth Licensing Justices, exporte Bird, [1953] 1 W. L. R. 1046; R. v. Amber Valley District Council, ex parte Jackson, [1984] 3 A ll E. R. 501.

Lord Chancellor, said:

"No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is o f the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. ”

Thus, where a decision-maker has a pecuniary interest in the subject matter o f the dispute his decision is likely to be infected by bias and is liable to be set aside.

Where other factors where concerned, for a long period o f time, the courts grappled with two tests for bias. One test was the reasonable suspicion o f bias and the other was the real likelihood o f bias. The former test was more easily satisfied than the latter. It was based on the premise that nothing was to be done which created even a suspicion that there had been an improper interference with the course o f justice.^^ The latter test looks at the decision from the point o f view o f the reasonable man."^° If a reasonable man would think that it was likely or probable that the decision-maker was biased, then the decision would be vitiated by bias. Here the court substitutes itself for the reasonable man to arrive at the conclusion that the decision was infected by bias and should therefore be set aside.

The House of Lords has, in R. v. G o u g h ,clarified the law relating to bias. The House o f Lords held that in all cases o f apparent bias the test to be applied was the same.

ibid., at ip. 792.

R. V. Sussex Justices, ex parte McCarthy, [1924] 1 K.B. 256, per Lord Hewart, C. J.,

at pp. 258 - 259.

See, e.g.. Metropolitan Properties (F.G.C.) Ltd., v. Lannon, [1969] 1 Q. B. 577. 41

C.

i.e., whether in the circumstances o f the case there appeared to be an apparent danger o f bias concerning the decision-maker so that the requirements o f justice militated against allowing the decision to stand.

In Gough the appellant was indicted on a single count o f conspiring to commit robbery. His brother had been discharged at the committal hearing on an application made by the prosecution. At the trial the brother was referred to by name and a photograph o f him and the appellant was shown to the jury and a statement which contained the name and address o f the brother was read to the jury. Subsequent to the conviction o f the appellant, his brother, who was present in court, started shouting. At this point one o f the jurors recognized him as her next door neighbour. When this matter was brought to the notice o f the trial judge he took the view that he was functus officio.

The juror, who was subsequently interviewed by the police, tendered an affidavit to the effect that she was unaware o f the connection until after the jury had delivered its verdict. On appeal by the appellant on the basis that there had been a serious procedural irregularity, the Court o f Appeal held that the proper test to be applied was whether there was a real danger o f the appellant being denied a fair trial and upon being satisfied that there was no denial o f such a fair trial proceeded to dismiss the appeal.

When the case went up in appeal, to the House o f Lords, the House o f Lords took the opportunity to review the law concerning the proper test to be applied in all cases o f bias. Dismissing the appeal, the House o f Lords held that the proper test to be applied in all cases o f apparent bias was the same. The test was whether there was a 'real danger of bias', concerning the member o f the tribunal in question, so that justice required that

the decision should not stand. Lord Goff o f Chieveley said that, for the avoidance o f doubt, he preferred "to state the test in terms o f real danger o f rather than real likelihood, to ensure that the court is thinking in terms o f possibility rather than probability o f bias.""^^ The House o f Lords was also o f the view that there was only one established special category of situation where bias was imputed and that was where the tribunal has a pecuniary or proprietary interest in the subject matter o f the proceedings.

The decision in Gough is salutary due to the fact that it brings a measure o f certainty in relation to circumstances under which it is possible to challenge a decision as being infected by bias. Doubt has, however, been expressed as to whether the ratio in

Gough is wide enough to encompass all types o f decision making bodies or whether it is limited to only those specified.'*^

In R. V. Inner West London Coroner, ex parte DallagliO)^^ the test adopted in

Gough was followed by the Court o f Appeal. In this case the coroner had refused to resume inquests into the deaths o f certain victims o f the 1989 Marchioness disaster after the adjournment o f those inquests pending the outcome o f criminal proceedings. In a meeting with journalists the coroner had described one o f the applicants for judicial review, the mother o f a victim, as ‘unhinged’. This statement was clearly inappropriate. The applicants sought, inter alia, to impeach the decision o f the coroner on the ground o f bias. The Court of Appeal granted the application for judicial review. Simon Brown,

z6züf., at p. 670.

See, e.g., Craig, P. P., Administrative Law [London: Sweet & Maxwell, 3"^^ edn., 1994], at p. 332.

[1994] 4 All E. R. 139.

L. J., after an analysis o f the reasoning in Gough, derived a number o f propositions from it. Referring to the test for bias adopted in Gough he said:

“The question upon which the court must reach its own factual conclusion is this; is there a real danger o f injustice having occurred as a result o f bias? By 'real ’ is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak o f a real risk or a real possibility.

In R. V. Secretary o f State fo r the Environment, ex parte Kirkstall Valley Campaign Ltd.,^^\ht applicant, a community action group concerned with the interests o f the local residents, sought to challenge the grant o f outline planning permission by an urban development corporation (as local planning authority) for retail development on part o f a rugby club’s property. The applicant alleged that the decision o f the corporation was vitiated by bias inasmuch as three members and an officer o f the corporation who had participated in the process o f decision-making had disqualifying pecuniary or personal interests amounting to apparent bias. The question that arose for determination was whether the test for bias was only limited to cases concerning judicial and quasi­ judicial bodies or whether it also applied to bodies such as a local planning authority.

Sedley, J., had no doubt that the test for bias was not so confined. The application for judicial review was, however, dismissed on other grounds. Referring to the test for bias laid down in Gough his Honour observed that there was “nothing in the jurisprudence o f R. v. Gough which necessarily limits to judicial or quasi-judicial tribunals the rule against the participation o f a person with a personal interest in the

at p. 151

46

outcome.

In Pinochet (No the House of Lords took the opportunity to further clarify the

Gough principle. In this case, Amnesty International had sought, and was allowed, to intervene in a case where Senator Pinochet, the former Chilean leader, had sought judicial review o f a decision, made by a metropolitan stipendiary magistrate, to issue two provisional warrants for his arrest. The High Court granted judicial review o f the decision and quashed one warrant but stayed the quashing o f the second warrant to enable an appeal to the House o f Lords on the question o f the immunity extended to a former head o f state in respect o f extradition proceedings. The House o f Lords, by a majority o f three to two, allowed the appeal and restored the second warrant."^^

It was subsequently discovered that Lord Hoffman, one o f the Law Lords that delivered judgment for the majority, had connections with Amnesty International. Lord Hoffman was both a director and the chairperson o f the Amnesty International Charity Ltd., which was set up to carry out the purposes o f Amnesty International which were o f a charitable c h a ra c te r.A d d itio n a lly , it was alleged that Lord Hoffman’s wife. Lady Hoffman, worked at Amnesty International in an administrative capacity. These facts had not been disclosed to the parties to the litigation because it was Lord Hoffman’s view that

at p. 321.

R. V. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte

Æ J77.

See, R. V. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet

Ugarte (Amnesty International and others intervening), [1998] 4 All E. R. 891.

Amnesty International Charity Ltd., was a company, limited by guarantee and was set up consequent to the judgment o f Slade, J., in McGovern v. Attorney General, [1982] Ch. 321, where a trust, set up by Amnesty International, to promote some of its objectives, was refused charitable status.

his connection with Amnesty International was a matter of public record. In fact Senator Pinochet’s lawyers had even contributed towards certain charitable causes espoused by Amnesty International Charity Ltd., consequent to an appeal made by Lord Hoffman.

When this matter, relating to Lord Hoffman’s connections with Amnesty International, was brought to the notice o f the House o f Lords by Senator Pinochet, in

Pinochet (No 2), their Lordships were unanimously o f the view that, in the circumstances, the disqualification attaching to Lord Hoffman was automatic and operated as a matter o f law.

Lord Browne-Wilkinson, explaining the rationale underpinning this proposition, said:

“I f the absolute impartiality o f the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director o f a company, in promoting the same causes in the same organisation as is a party to a suit. There is no room fo r fin e distinctions i f Lord Hewart C J ’s fam ous dictum is to be observed: it is ‘o f fundam ental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done ’ (see R. v. Sussex Justices, ex p. McCarthy [1924] I KB 256 at 259, [1923] A ll E R Rep 233 at 234],

Lord Browne-Wilkinson was also o f the view that the fact that Lady Hoffman was employed by Amnesty International and the fact that Lord Hoffman had solicited funds on behalf o f Amnesty International’s charitable activities was irrelevant to the present application. His Lordship was o f the view that these matters were relevant only if Senator Pinochet was required to show, as in Gough, that there was a real danger o f bias.

Here the disqualification was automatic and did not, in any way, depend upon the

implication o f bias.^^

Lord Nolan expressed the view that “where the impartiality o f a judge is in question the appearance o f the matter is just as important as the r e a l i t y . L o r d Hope o f Craighead was o f the view that a judge was obliged to disclose any interest that he had in a particular case and that “if he fails to disclose his interest and sits in judgm ent upon