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Friday, May 7, 2010

Proportionality test and Value Judgement-Part-3

In my judgment, this case falls within the first category of case, viz where the judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he 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.[1] " ‘If, therefore, this was a case in which a Judge had possessed the interest that was possessed by one of the arbiters, the appeal, so far as this part of the case is concerned, must fail. It was, however, suggested by the learned Lord Advocate that there were in fact distinctions to be drawn, according to the law of Scotland, between the possession of an interest which would disqualify a Judge and the possession of an interest which would disqualify an arbiter, and he invited your Lordships to consider an interesting discussion of the law upon that footing. It is sufficient for the present purpose to say that such a point was not argued in the Inner House where it ought to have been raised, and it would be unwise for your Lordships to consider such a question now, when its decision might affect the determination of a matter intimately affecting the domestic affairs of Scotland and your Lordships have not the advantage of knowing the opinion of any of the Scottish Judges upon the point. So far, therefore, as this appeal seeks to vary or reverse the interlocutor which decided that the award in this case was voidable and ought to be set aside, the appeal must fail.[2]’ "Each member of the council in adjudicating on a complaint thereunder is performing a judicial duty, and he must bring to the discharge of that duty an unbiased and impartial mind. If he has a bias which renders him otherwise than an impartial judge he is disqualified from performing that duty. Nay, more (so jealous is the policy of our law of the purity of the administration of justice), if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that person's impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists.[3]" "There is no better known rule of natural justice than the one that a man shall not be a judge in his own cause. In its simplest form this means that a man shall not judge an issue in which he has a direct pecuniary interest, but the rule has been extended far beyond such crude examples and now covers cases in which the judge has such an interest in the parties or the matters in dispute as to make it difficult for him to approach the trial with the impartiality and detachment which the judicial function requires. "Accordingly, application may be made to set aside a judgment on the so-called ground of bias without showing any direct pecuniary or proprietary interest in the judicial officer concerned.[4] “"The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. . . . The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.[5]" (My emphasis) ". . . where a magistrate who was a member of a particular council of a religious body one of the objects of which was to oppose the renewal of licences, was present at a meeting at which it was decided that the council should oppose the transfer or renewal of the licences, and that a solicitor should be instructed to act for the council at the meeting of the magistrates when the case came on. A solicitor was so instructed, and opposed the particular licence, and the magistrate sat on the bench and took part in the decision. The Court in that case came to the conclusion that the magistrate was disqualified on account of bias, and that the decision to refuse the licence was bad. No one imputed mala fides to the magistrate, but Cave J., in giving judgment, said: 'the question was, What would be likely to endanger the respect or diminish the confidence which it was desirable should exist in the administration of justice?' Wright J. stated that although the magistrate had acted from excellent motives and feelings, he still had done so contrary to a well settled principle of law, which affected the character of the administration of justice.[6]"

A man may be disqualified from sitting in a judicial capacity on one of two grounds.First , a "direct pecuniary interest" in the subject-matter. Second, "bias" in favour of one side or against the other.[7] "There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter ...[8]" "It is, of course, clear that any direct pecuniary or proprietary interest in the subject-matter of a proceeding, however small, operates as an automatic disqualification.[9]" ‘The basic rule is not in doubt. Nor is the rationale of the rule: that if a judge has a personal interest in the outcome of an issue which he is to resolve, he is improperly acting as a judge in his own cause; and that such a proceeding would, without more, undermine public confidence in the integrity of the administration of justice.[10]

In practice, the most effective guarantee of the fundamental right recognised at the outset of this judgment is afforded not (for reasons already given) by the rules which provide for disqualification on grounds of actual bias, nor by those which provide for automatic disqualification, because automatic disqualification on grounds of personal interest is extremely rare and judges routinely take care to disqualify themselves, in advance of any hearing, in any case where a personal interest could be thought to arise. The most effective protection of the right is in practice afforded by a rule which provides for the disqualification of a judge, and the setting aside of a decision, if on examination of all the relevant circumstances the court concludes that there was a real danger (or possibility) of bias. Until 1993 there had been some divergence in the English authorities. Some had expressed the test in terms of a reasonable suspicion or apprehension of bias[11].’ Brennan J, the then President of the Tribunal, said at p.639:

"Inconsistency (in making decisions) is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.[12]"

[1] see Shetreet, Judges on Trial, (1976), p. 303; De Smith, Woolf & Jowel, Judicial Review of Administrative Action, 5th ed. (1995), p. 525. I will call this "automatic disqualification. Pinochet, In re [1999] UKHL 1; [2000] 1 AC 119; [1999] 1 All ER 577; [1999] 2 WLR 272 (15th January, 1999)
Cite as: [1999] 2 WLR 272, 6 BHRC 1, [1999] NLJR 88, [1999] 1 All ER 577, [1999] UKHL 1, [2000] 1 AC 119 per LORD BROWNE-WILKINSON

[2] Sellar v Highland Railway Co (No.1) [1919] UKHL 1 (24 January 1919)
Cite as: 1919 1 SLT 149, 1919 SC (HL) 19, [1919] UKHL 1 per LORD BUCKMASTER

[3] Law v. Chartered Institute of Patent Agents [1919] 2 Ch. 276, 279 per EVE J

[4] Regina v. Altrincham Justices, Ex parte Pennington [1975] 1 Q.B. 549, 552F per LORD WIDGREY C.J

[5] Webb v. The Queen (1994) 181 C.L.R. 41, 74per DEANE J

[6] Reg. v. Fraser (1893) 9 T.L.R. 613. per LORD CARSON

[7]Metropolitan Properties Co (FGC) Ltd v Lannon [1968] EWCA Civ 5 (11 July 1968)
Cite as: [1968] 3 All ER 304, [1968] RVR 490, [1968] EWCA Civ 5, [1968] 3 WLR 694, (1968) 19 P & CR 856, [1969] 1 QB 577 , England and Wales Court of Appeal (Civil Division) Decisions wherein it was also stated that:”
Regina v. Barnsley Justices (1960 2 Q.B. 167), referring to the dissenting judgment of Mr. JUSTICE SALOON in the Divisional Court, Lord Justice Devlin said (at page 187) -"I am not quite sure what test Mr. JUSTICE SALMON applied. If he applied the test based on the principle that justice must not only be done but manifestly be seen to be done, I think he came to the right conclusion on that test....... But it is not the test. We have not to enquire what impression might be left on the Binds of the present applicants or on the Binds of the public generally. We have to satisfy ourselves that there was a real likelihood of bias - not merely satisfy ourselves that that was the sort of impression that might reasonably get abroad. The term "real likelihood of bias" is not used, in my opinion, to import the principle in R. v. Sussex Justices to which Mr. Justice Salmon referred. It is used to show that it is not necessary that actual bias should be proved. It is unnecessary .... to investigate the state of mind of each individual justice. "Real likelihood" depends on the impression which the Court gets from the circumstances in which the justices were sitting. Do they give rise to a real likelihood that the justices might be biased? The Court sight come to the conclusion that there was such a likelihood, without impugning the affidavit of a justice that he was not in fact biased. Bias is or may be an unconscious thing . The matter must be determined upon the probabilities to be inferred from the circumstances in which the justices sat."

[8] R. v. Rand (1866) LR 1 QB 230 at 232,per BLACKBURN J

[9] R. v. Camborne Justices, ex parte Pearce [1955] 1 QB 41per SLADE J

[10] R. v. Gough [1993] AC 646 at 661, per LORD Goff of Chieveley

[11] see, for example, Law v. Chartered Institute of Patent Agents [1919] 2 Ch. 276 at 290; R. v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259; Metropolitan Properties Co. (FGC) Ltd. v. Lannon [1969] 1 QB 577 at 599, 602, 606; R. v. Liverpool City Justices, ex parte Topping [1983] 1 WLR 119 at 123; R. v. Mulvihill [1990] 1 WLR 438 at 444. This test had found favour in Scotland (Bradford v. McLeod 1986 SLT 244), Australia (R. v. Watson, ex parte Armstrong (1976) 136 CLR 248) and South Africa (BTR Industries, above). Other cases had expressed the test in terms of a real danger or likelihood of bias: R. v. Rand (1866) LR 1 QB 230 at 233; R. v. Sunderland Justices [1901] 2 KB 357 at 371; R. v. Camborne Justices, ex parte Pearce [1955] 1 QB 41 at 51; R. v. Barnsley Licensing Justices, ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167 at 186; R. v. Spencer [1987] AC 128. in Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [1999] EWCA Civ 3004 (17 November 1999)
Cite as: [1999] EWCA Civ 3004, [2000] HRLR 290, [2000] 1 All ER 65, [2000] 2 WLR 870, [2000] QB 451, 7 BHRC 583, [2000] IRLR 96, [2000] UKHRR 300 per LORD CHIEF JUSTICE, MASTER OF THE ROLLS, VICE-CHANCELLOR observing further that:” This rule has been applied in a number of English cases and Privy Council appeals. It has not commanded universal approval elsewhere: Scotland (Doherty v. McGlennan 1997 SLT 444), Australia (Webb v. R., above) and South Africa (Moch v. Nedtravel (Pty) Ltd. 1996 (3) SA 1) have adhered to the reasonable suspicion or reasonable apprehension test, which may be more closely in harmony with the jurisprudence of the European Court of Human Rights (see, for example, Piersack v. Belgium (1982) 5 EHRR 169; De Cubber v. Belgium (1984) 7 EHRR 236; Hauschildt v. Denmark
(1989) 12 EHRR 266; Langborger v. Sweden (1989) 12 EHRR 416)”

[12] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 per BRENNAN J

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