Judicial bias

What can I do if I think the Judge has treated me unfairly?

Judges are human beings and therefore can make mistakes and get things wrong. It is possible that the Judge in your case has treated you unfairly and made decisions about your case which are not based on the evidence, but are instead a reflection of that Judge’s bad mood on the day.

In some circumstances a Judge should definitely not continue to hear a case and you would expect the Judge to recognise this from the outset – for e.g. if the judge is related to or married to any party to the case or has previously acted as a lawyer in the case.

This post will consider what happens when you are worried that a Judge is biased against you. How can you show that this happened, and what are your remedies?

Establishing Judicial Bias

This is an objective test – would the Judge appear biased to an informed observer? It is very important that court proceedings are seen to be fair.

Tribunals must appear in an objective sense to be truly independent and impartial. This perception is essential to maintaining public confidence in the judiciary and the legal system as a whole. The legal system is a central social good in any successful state. Its substantive, as well as apparent, integrity is an important matter.

The House of Lords (now known as the Supreme Court) considered the test for establishing judicial bias, in the case of Porter v Magill [2002] AC 357. Lord Bingham said at paragraph 106 that the essential question was:

…whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

This test was confirmed as still good law by the Court of Appeal in the case of Harb [2016] EWCA Civ 556 (mentioned below).

For example – was the Judge rude to you? Did the Judge refuse to let you ask questions or speak about something you thought was relevant? This could be an example of a Judge acting unfairly – but you will need to consider carefully the Judge’s duty to actively manage the cases in his/her court, which we discuss below.

The case of G (Child) [2015] EWCA Civ 834 is a good example of how a judge was found to be acting unfairly from the nature and quality of her interventions and criticism of counsel. The Court of Appeal commented at para 38:

As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.
It is necessary to look not only at the quantum of the judge’s interventions but also at their nature. As Mr Turner submitted on behalf of the father, a litigant does not have an unrestricted right to present a case in such a way as he or she or his or her lawyers may choose. A judge sometimes has no choice but to intervene during the evidence because of the nature of the questioning or in order to manage the use of court time (as the father would submit was necessary here). Furthermore, the interventions can sometimes be a help to counsel in his or her questioning rather than a hindrance.

In this case, the Judge had clearly crossed the line and her interventions were a hindrance:

Standing back again from the detail, it seems to me that the judge’s interventions on the second day of Ms Toch’s cross-examination of the father differed in character from the sort of intervention, sometimes quite frequent but nonetheless part of the normal course of a trial, in which the judge simply seeks clarification of a page number or an aspect of questioning or, having an eye on the clock, seeks to move matters along. My assessment is that on this second day the judge’s interventions were such that they largely prevented Ms Toch’s cross-examination from getting off the ground or at least significantly hampered its progress and also took up a disproportionate amount of the limited time available to Ms Toch. They may also have undermined Ms Toch with the witness, diluting her questioning not only by interrupting its flow but also by leading the father to anticipate that it may be declared by the judge to be without proper foundation or badly put. This was a case in which, as the judge herself observed, the credibility of the parties was particularly material. Cross-examination was therefore of central importance in enabling the judge to make reliable findings of fact on their respective allegations. The judge’s interventions were such that I am unable to be sure that the father’s evidence was tested as was required.

Judges ought to be wary of making jokes in case they cross the line between what is tolerable and what is impermissable. See the comments of Ward LJ in paragraph 30 of El-Faragy v El Faragy and others in 2007 where he concluded that a fair minded observer would conclude the Judge was biased:

When I said at the beginning of the judgment that I found this case embarrassing, no little part of my embarrassment comes from my belief that the injection of a little humour lightens the load of high emotion that so often attends litigation and I am the very last judge to criticise laughter in court. I fully appreciate the conventional view that jokes are a bad thing. Of course they are when they are bad jokes – and I am sure I have myself often erred and committed that heinous judicial sin. Singer J. certainly erred in this case. These, I regret to say, were not just bad jokes: they were thoroughly bad jokes. Moreover, and importantly, they will inevitably be perceived to be racially offensive jokes. For my part I am totally convinced that they were not meant to be racist and I unreservedly acquit the judge of any suggestion that they were so intended. Unfortunately, every one of the four remarks can be seen to be not simply “colourful language” as the judge sought to excuse them but, to adopt Mr Randall’s submission, to be mocking and disparaging of the third respondent for his status as a Sheikh and/or his Saudi nationality and/or his ethnic origins and/or his Muslim faith.

What does ‘fair minded and informed’ mean?

This is an objective test, meaning that the personal views of the person making the accusation of bias is not enough to decide the issue. This is clearly sensible as the person complaining of bias may not be the most reliable person to make that claim. Just because a Judge disagrees with you, doesn’t make that Judge biased against you.

But if the Judge’s behaviour would seem unfair to an outside observer who doesn’t have your personal investment in the outcome, then it is likely that we can conclude that Judge did indeed act unfairly.

In Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781, at 787 it was held by the House of Lords that:

the fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny.

However, this test has been criticised

This is fine, as far as background or simple facts are concerned, such as the evidence given, the treatment of the parties by the tribunal and the terms of any decision made. It is problematic, however, when the intricacies of a particular field of decision making are attributed to the onlooker. These complex facts are unlikely to be known by anybody other than those who already practice in the particular field. The danger is that vested with this knowledge our notional observer will overlook matters that would otherwise appear to general members of the public as being suspicious. This is where confidence in the system is lost.

The court emphasised in Lesage v Mauritius Commercial Bank Ltd [2012] UKPC 41, that it was important to look at the proceedings as a whole to see if an impression of bias was created.

But a Judge has a duty to case manage – when does this slip into unfairness?

Christopher Sharp QC considered the issue of bias in care proceedings and in particular the case of in the case of Re Q (Children) [2014] EWCA Civ 918, where he represented the LA. This was a very unusual case in that every party, apart from the guardian appealed about the way the Judge had handled it, leaving the Court of Appeal with seven notices of appeal to consider.

For favourable comment on the decision in Re Q and the questions to ask when looking at fairness of the proceedings see M, Re [2018] EWCOP 4 (08 February 2018)

As suesspiciousminds comments:

appeals on the point are pretty rare and successful appeals rarer still. Q is one of the latter, and as such a rare breed is worthy of some consideration.

The Judge made various comments about the state of the evidence at a Case Management Hearing (CMH) i.e. before all the final evidence had been heard. This lead to serious concerns from the lawyer present that the Judge was simply not prepared to consider any issues that he had not generated himself.

The Court of Appeal commented at paragraph 50 of their judgment:

Such expressions of judicial opinion, given the need for the judge to manage the case and be directive, are commonplace and would not be supportive of an appeal to this court based upon apparent judicial bias. The question in the present appeal is whether the other observations made by the judge, and the stage in the overall court process that those observations were made, establishes circumstances that would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased in the sense that he had formed a concluded view on the mother’s allegations and her overall veracity.that it is often difficult for a judge in care proceedings to both actively manage the case and yet not make decisions before all the evidence is before the court:

It is clear that a judge hearing a family case has a duty to deal with cases efficiently. Judges are expected to ‘actively manage’ cases [FPR 2010, rr 1.1(1) and 1.4(1)]. This will include consideration of a range of issues as set out at FPR 2010, r 1.4(2), including early identification of the relevant issues [r 1.4(2)(b)(i)] and deciding promptly which issues need full investigation and hearing [r 1.4(2)(c)(i)].

As Christopher Sharp QC comments:

There is a very real danger that in this process judges are going to be seeing issues without the benefit of all the evidence (which may not yet have been gathered), or without the benefit of a full understanding of both sides of an argument. The judge therefore has a fine line to walk between “robust case management” and appearing to jump to conclusions which may infect the whole process with the appearance of bias

The Court of Appeal did not want to criticise any Judge who was doing what he was supposed to do and deploying ‘robust case management’. However, there is a line between carrying out that duty and making premature decisions about a case – and the Judge crossed that line in Re Q. The Court of Appeal commented that he:

strayed beyond the case management role by engaging in an analysis, which by definition could only have been one-sided, of the veracity of the evidence and of the mother’s general credibility. The situation was compounded by the judge giving voice to the result of his analysis in unambiguous and conclusive terms in a manner that can only have established in the mind of a fair-minded and informed observer that there was a real possibility that the judge had formed a concluded and adverse view of the mother and her allegations at a preliminary stage in the trial process.

McFarlane LJ however also observed that:

The role of a family judge in this respect is not at all easy and I would afford the benefit of the doubt to a judge even if the circumstances were very close to or even on the metaphorical line.

Therefore it is not going to be easy to establish judicial bias in a family case and you will need to be clear about why and how a Judge crossed over the line from robust case management into being biased against you. But if you can establish bias, the consequences are clear.

A Judge can be found to act unwisely – but not necessarily be biased

A useful case is Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 (14 March 2018) where the trial judge had a private conversation with the barrister for one party – primarily about the Judge’s daughter who had undertaken a mini pupillage at that barrister’s chambers. However, the Judge also made some brief comment about what he thought about the state of the evidence and asked the barrister to pass on his comments to the other side. This caused alarm for the other side who wanted the Judge to recuse himself.

The Court of Appeal had some strong words for the Judge’s behaviour in having such a conversation in private and the justifications he attempted to give for why he made that decision. However, their conclusion was clear at para 42:

Applying the established legal test of apparent bias, I am satisfied that the fair-minded and informed observer, having considered all the relevant facts, would conclude that the conduct of the judge in this case, wrong-headed as it was, did not indicate any real possibility that he was biased. I would accordingly dismiss the appeal.

What happens if the Judge is found to be biased?

If the case is on-going, the Judge will have to step down and the case will be re-heard before a different Judge. This is called ‘recusal’.

If the case is finished, then an allegation of judicial bias will be a ground of appeal against his or her decisions. The importance of judicial integrity is such, that if you can establish bias, the fact that a further hearing will be inconvenient and cost money is irrelevant – the Judge must step down.

Lord Kerr in the case of Lesage commented:

59. In a case where it has been concluded that there is the appearance of bias and unfairness, however, these are consequences which simply have to be accepted. They cannot outweigh the unanswerable need to ensure that a trial which is free from even the appearance of unfairness is the indispensable right of all parties and is fundamental to the proper administration of justice. In AWG Group Ltd v Morrison [2006] 1 WLR 1163, para 6 Mummery LJ dealt with this issue thus:

“Inconvenience, costs and delay do not, however, count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under article 6 of the Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case. It is not a discretionary case management decision reached by weighing various relevant factors in the balance.”

60. The Board endorses this approach. Where the appearance of unfairness or bias has been established, ordering a new trial free from the taint of that manifestation is unavoidable.

What’s the procedure for recusal?

With thanks to Sam for finding the case

This was discussed in the case of El Faragy and Others in 2007. Lord Justice Ward suggested the following procedure at paragraph 32:

First, if circumstances permit, an informal approach should be made to the judge (for example by letter) making the complaint and inviting recusal. While judges should not yield to frivolous objections, a judge can nevertheless “with honour totally deny the complaint but still pass the case to a colleague”. If the judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, “hard though it is to sit in judgment of one’s colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour”.

The judgement gives no further clue as to what is meant by ‘if circumstances permit’ and it is difficult to see how family cases would allow the luxury of time to write such a letter and await a reply. It is respectfully suggested that it would probably be better if you raise the matter as soon as you can in court.

UPDATE – information from one of our readers July 2015

It looks as if writing a letter is the way to go – thanks to one of our readers who is attempting to convince a judge to recuse himself. They have been told that the Court of Appeal will pass the application onto a Master without a court order. The application must include a covering letter, the letter to the judge and his reply. We would be interested to hear from anyone else who has tried this.

Mr Justice Peter Smith

For an example of a Judge – Mr Justice Peter Smith – who grudgingly agreed to step down after airing his personal views about his lost luggage in a dispute involving an airline, see this post from Legal Cheek and a masterly take down from suesspiciousminds. The same judge was asked to recuse himself in 2007.

EDIT 17th June 2016; for further comment from the Court of Appeal with regard to the behaviour of this judge regarding a letter he wrote criticising the conduct of a member of one particular Chambers, see the case of Harb v HRM Prince Abdul Aziz Bin Fahd [2016] EWCA Civ 556 and note the comments at para 68:

In his letter to the claimant’s solicitors dated 12th February 2016, the judge accepted that he should not have written the Letter. It is difficult to believe that any judge, still less a High Court Judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being “outrageous” as the judge said in the Letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so. But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed. It is to that question that we now turn.

The court concluded at para 74 of its judgment:

We are prepared to assume that the informed and fair-minded observer, knowing of the Article, would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least for a short period after the publication of the Article. But for the reasons we have given, the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of Blackstone Chambers.

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