20th Jun 2013 | Articles

Lesage sets out what will hopefully be accepted as the correct approach to cases of apparent bias, say James Guthrie QC & Rowan Pennington-Benton in this article for the New Law Journal.

The doctrine of apparent bias requires that judges be free not only from subjective personal bias or prejudice, but also from potential public perception of the same. 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.

Porter v Magill

With this in mind, the House of Lords in Porter v Magill [2002] 2 AC 357, [2002] 1 All ER 465, rejected the previous tests of “reasonable likelihood” and “real danger” of apparent bias on the basis that they tended to place too much emphasis on the court’s assessment of the facts, rather than public perceptions. It is, after all, these latter perceptions with which the doctrine is concerned. The current formulation is “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

Even this formulation has caused difficulties. Just how informed should our notional observer be? He is not a lawyer or a judge, but a member of the public. To what extent should he give the tribunal the benefit of the doubt? An ignorant and paranoid observer could no doubt see bias in almost any proceedings before any judge. On the other hand, focusing on the perceptions of an observer well versed in the checks and balances of the decision-making process, coupled with a supine regard for state authority, would render the doctrine toothless.

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James Guthrie QC

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