Hostname: page-component-cd9895bd7-dk4vv Total loading time: 0 Render date: 2024-12-23T10:06:21.374Z Has data issue: false hasContentIssue false
  • English
  • Français

Safeguarding judicial impartiality

Published online by Cambridge University Press:  02 January 2018

Kate Malleson
Kate Malleson*
Affiliation:
Department of Law, London School of Economics
Get access Rights & Permissions [Opens in a new window]

Abstract

Since the decision of the House of Lords to overturn its earlier judgment in the case of Re Pinochet (No 2) the courts have closed the floodgates to further claims of judicial bias by adopting a restrictive approach to the rules on judicial disqualification. In the light of these restrictions on claims of individual bias, this paper reviews the institutional mechanisms for safeguarding impartiality at a collective level through the appointments process and the system for allocating cases to judges. It highlights weaknesses in these arrangements such as the lack of openness, the potential for inappropriate political control and the lack of diversity in the composition of the judiciary. It argues that as the concept of impartiality is increasingly linked to these institutional arrangements the continuing legitimacy of the judiciary requires that these problems are addressed.

Type
Research Article
Information
Legal Studies , Volume 22 , Issue 1 , March 2002 , pp. 53 - 70
Copyright
Copyright © Society of Legal Scholars 2002

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Rex v Sussex Justices, exp McCarthy [1924] KB 256 at 259.

2. [2000] 2 WLR 870.

3. The presumption of judicial impartiality is clearly set out in Blackstones Commentaries and has been adopted by many other common law systems as well as the European Court of Human Rights (see the 1997 Canadian Supreme Court decision, R v S (R D) (1997) 118 CCC (3d) para 117).

4. See Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 2 WLR 870 at 885.

5. Dimes v Proprietors of Grand Junction Canal (1852) HL cas 759. This principle can be traced to a variety of early decisions. See Olowofoyeku, A ‘The Nemo Judex Rule: The Case Against Automatic Disqualification’ [2000] PL 457 Google Scholar.

6. Dimes v Proprietors of Grand Junction Canal (1852) HL cas 759.

7. R v Gough [1993] AC 646 at 673.

8. The Directorship of Lord Hoffmann of Amnesty International Charitable Trust was held to have constituted this form of non-pecuniary interest. His failure to declare this interest rendered his disqualification automatic.

9. R v Bow Street Metropolitan Stipendiary Magistrates, ex p Pinochet Ugarte (No 2) [1999] All ER 577 at 589 per Lord Browne-Wilkinson. See Olowofoyeku, n 5 above.

10. [2000] 2 WLR 870 at 883.

11. R v Rand (1866) L R I QB 230 at 232.

12. R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139 at 162.

13. Weatherill v Lloyds TSB Bank PLC.

14. [2000] 2 WLR 870 at 885.

15. [1994] 4 All ER 139 at 152.

16. [1994] 4 All ER 139 162.

17. [2000] 2 WLR 870 at 885.

18. AT & Tv Saudi cable Co (2000) Times, 23 May.

19. (1994) 4 All ER 139 at 162.

20. (2000) Times, 22 December.

21. This approach has been confirmed by the House of Lords in Magill v Porter and Weeks [2001] UKHL 67.

22. [2000] 2 WLR 870 at 885.

23. This has been highlighted in the Canada Code of Judicial Conduct. See Canadian Judicial Council Commentaries on Judicial Conduct (Ottawa: Canadian Judicial Council, 1993) p 74.

24. [2000] 2 WLR 870 at 888.

25. (2000) 29 November.

26. R v S (R D) (1997) 118 CCC (3d) para 119.

27. Russell, P ‘Judicial Free Speech: Justifiable Limits’ (1996) 45 U New Brunswick LJ 155.Google Scholar

28. President of the Republic of South Africa v South Africa v Rugby Union 1999 (4) S A 147, para 42.

29. ‘Should a Judge have Outside Interests?’ The Times, 12 January 1999.

30. (1997) 118 CCC (3d), para 48.

31. See Williams, D ‘Bias: the Judges and the Separation of Powers’ [2000] PL 45.Google Scholar

32. [1994] 4 All ER 139 at 156. Lord Justice Simon Brown noted that ‘the case should serve as a reminder to all judicial officers of the almost invariable unwisdom of ever talking to the press about any aspect of current legal proceedings’.

33. Hoestra, Rijs and ors, 9 March 2000, http://www.scotcourts.gov.uk/opinions/LJG1003.html.

34. [2000] 2 WLR 870 at 906.

35. [2000] 2 WLR 870 at 888.

36. [2000] 2 WLR 870 at 886.

37. [2000] 2 WLR 870 at 887.

38. Human Rights Act 1998, s 2.

39. Piersack 1.10.1982 C (82) 51; De Cubber 26.10.1984 C(84) 77; Hauschildt 24.5.1989 C (89) 67; De Haan 26.8.1997 458; Langborger 22.6.1989 C (89) 80.

40. Explanatory Memorandum, para 1.3.

41. Above n 39, para 1. 1.

42. HL Official Report (5th series) col 1308, 5 June 1996. Paradoxically, one rare recent example of alleged interference involved Lord Mackay himself as Lord Chancellor, when in 1994 he wrote to Sir John Wood, then president of the Employment Appeal Tribunal, demanding that he should follow certain procedures in deciding the appeals criteria and if not, that he should ‘consider his position’. The letter which Sir John wrote in reply stated that he considered that the Lord Chancellor had demanded that he exercise his judicial function: ‘in a way in which you regard as best suited to your executive purposes.’ He concluded that he could not comply with the demand since he did not regard it as conducive to justice.

43. ‘The Judiciary’ in Lord Nolan and S Sedley (eds) The Making and Remaking of the British Constitution (London: Blackstone, 1997) p 75.

44. See McGlynn, C ‘Judging Women Differently: Gender, the Judiciary and Reform’ in Millns, S and Whitty, N (eds) Feminist Perspectives on Public Law (London: Cavendish Publishing Ltd, 1999) p 100.Google Scholar

45. ‘Oxbridge judges under scrutiny’, Independent, 28 March 2000.

46. ‘Judge refuses to stand down over bias claim’ The Times, 6 May 1999.

47. See Malleson, K The New Judiciary, (Aldershot: Ashgate Press, 1999) pp 125.Google Scholar

48. See C Thomas Judicial Appointments in Continental Europe and Malleson, K The Use of Judicial Appointments Commissions (London: Lord Chancellor's Department, 1997)Google Scholar Research Series No 6/97.

49. White and ors v Chief Constable of South Yorkshire [1998] 3 WLR 1509 at 1549.

50. Guardian, 22 September 2000, p 4.

51. ‘Why Judges must Declare their Interests’ The Times, 31 August 1999.

52. See Lovegrove, A ‘The Listing of Criminal Cases in the Crown Court as an Administrative Discretion’ (1984) Crim LR 739.Google Scholar

53. (1984) Crim LR 743.

54. Guardian, 1 December 1998, p 17.

55. The Times, 14 September 1984.

56. Council of Europe Committee of Ministers (1994) Recommendation of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges, Recommendation No R (94) 12.

57. See eg, Jacob, C ‘A Polemic Against R.P.C 1.7(C)(2): “The Appearance of Impropriety” Rule’ (1996) 177 NJ Law 23.Google Scholar