A Critique of Judicial Impartiality (published OD Law Journal Winter 2005)
In every civilised and developed jurisdictional system, adjudicators are expected to be both fair and impartial. These qualities are generally perceived as being inherent and fundamental to the art of adjudication. It’s surprising how theories sound overwhelmingly absolute and accurate. After spending a few weeks in the House of Lords, Court of Appeal and Asylum and Immigration Tribunal this summer, I have, however, come to the conclusion that judges aren’t as impartial as legal theory recommends or Practice Codes stipulate. Accordingly, this article will analyse, inter alia, the relationship between judicial bias and Article 6 of the European Convention on Human Rights. Article 10 of the Universal Declaration on Human Rights also provides a similar right to that of the Article 6 ECHR, but I will limit my observations to the latter as it holds a stronger legal status in English Law than the former due to the effect of Human Rights Act 1998. This analysis will demonstrate how judicial bias undermines the required impartiality of the Bench, thus drawing a controversial yet realistic conclusion that judges cannot conform to such a quality in real life.
There exist different philosophical conceptions of impartiality. According to Bernard Gert, “A is impartial in respect R with regard to group G if and only if A's actions in respect R are not influenced at all by which member(s) of G benefit or are harmed by these actions." (Gert 1995, p.104). Impartiality does not require, however, that individuals be treated equally under all circumstances. People or groups should be treated differently if they merit different treatment according to external and objective morality. For example, most legal systems seek to treat murderers differently than innocent persons. This is not a result of partiality, however, because it appeals to an external, objective standard – the law – rather than bias or prejudice. Thus, what impartiality requires is not that everyone receive equal treatment, but rather that everyone be treated as an equal (Dworkin 1977, p. 227). Rather than being put in terms of an impartial point of view, the relation between morality and impartiality is sometimes made out in terms of an impartial agent or observer -a person who makes moral judgments without being influenced by the sort of contaminating biases or prejudices that tend to arise from the occupation of some particular point of view. (Smith 1976 ). However, it is inappropriate to inquire into moral objectivism when considering judicial impartiality as judges are only required to act as legal rather than moral agents.
One of the fundamental principles of justitia naturale and of the Rule of Law dictates nemo judex in causa sua, a canon of natural justice No judge should preside over a matter in which he has a personal interest or involvement. A judge with an interest related to the proceedings before him should declare it and then, as appropriate, may stand down of his own accord or if requested. If this is not done, a presumption of bias arises and any decision he makes may be challenged.
Article 6 ECHR provides that ‘in relation to civil rights and obligations, and the determination of any criminal charges against him there is a right to a fair trial in public before an independent and impartial tribunal established by law’. (see also Art.10 of the Universal Declaration of Human Rights 1948). Furthermore, Common law provides that adjudicators should not sit in matters in which they have an interest – as in Re Pinochet 1998 where Lord Hoffman, as a Director of Amnesty International, failed to disclose his private interest in the case; and Dimes v Grand Junction Canal Proprietors 1852 where Lord Cottenham gave judgment in favour of the canal company, in which he held shares. The consequences of these judicial ‘mistakes’ leave a stain on the British judiciary which the system is doing its best to explain away as unfortunate little accidents. It’s not little and it’s not an accident. In fact, these ‘mistakes’ happen everyday in court but those responsible for it just don’t get ‘caught’.
There are two preliminary conceptions worth observing when inquiring into judicial impartiality. The first is the conception of the general public. They expect, and indeed assume, judges to be impartial, fair and unbiased. People, whether or not involved in a trial, generally do not usually inquire beyond that typical stereotype or attempt to investigate the adjudicator’s political and religious beliefs, prejudices and personal bias.
The second concept contradicts the first, as judges are human beings and their judicial positions only constitute a partial slice of their lives. This line of argument is particularly pertinent to the theories propounded by American realism throughout the beginning of the 20th century. What some people fail to consider is that judges, too, have a background – not matter how elitist – a life – no matter how luxurious – and a political mind – no matter how conservative. By advancing on such grounds, it is arguable that factors such as a judge’s background, education, personal interests, religion, sexual orientation, political preferences, institutional memberships and general lifestyle can develop and mould views that may create an imbalance in the scales of impartiality. As a consequence, these factors may perturb and contaminate the method by which a judge reaches his decision.
When juxtaposing these two conceptions one encounters a clash between expectations and accomplishments, a rift between theory and practice. On the one hand there’s a firm understanding of how judge’s ought to adjudicate. The need for judges to be impartial therefore becomes a requirement. On the other side of the coin we realise that partiality is inherent to human nature and that being ‘fence-sitting’ can only equate to a fanciful desideratum rather a necessary precondition.
The roots of the bench
In order to fully understand the truth about the judiciary it is crucial to investigate their background. As the American law professor Alan Dershowitz has remarked of our senior judiciary, ‘the small legal clique who select your wigged Platonic guardians seem to believe there is a white, male gene for intellect, integrity, and professionalism’. In her research Paths to Justice (1999), Hazel Genn showed that the public still feel the judiciary does not mirror society. A typical response was,
‘I don’t know what the mix of judges is but most of them seem to be, you know, white middle aged, middle classed and minded men’.
Furthermore, the results suggest that two out of three people think that judges are out of touch with ordinary people’s lives, but more worryingly, only 53% thought that they would get a fair hearing if they ever went to court. Indeed, when you have someone like Judge Gabriel Hutton in Gloucester Crown court falling asleep in the trial of a 21-year old accused of rape, there’s not much one can do to bring public confidence back into the judiciary. When questioned, the 69-year-old judge told the jury, "I am not aware that I did. I think I was well aware of what he [defence counsel] was saying to you. But if in fact I gave the impression of not listening to what he said, it would be unfair to the defendant to allow the case to go on." In other words, he fell asleep.
Just because judges are old, white, rich, upper middle class, educated at public school and Oxbridge does not mean that they all necessarily think the same way. Or maybe they do. The limited class background of the judiciary was confirmed in figures by the Lord Chancellor’s office on 17 May 1995, which revealed that 80% of Lords of Appeal, Heads of Division, Lord Justices of Appeal and High Court Justices were educated at Oxford and Cambridge. The continuing social imbalance amongst the senior judiciary was further scrutinised and confirmed in a report on judicial appointments by the Commons Home Affairs Committee (June 1996). It revealed that four-fifths of judges went to both public schools and Oxbridge colleges, that only seven out of 96 High Court Judges were women, and that only five out of the 517 circuit judges were black or Asian. Nevertheless, the Committee rejected proposals for positive discrimination or even for the establishment of a judicial appointments committee to replace the informal system under the control of the Lord Chancellor. However, new provisions have been implemented and the system is now being reformed.
Is the judiciary ethnocentric? The Department of Constitutional Affairs has collated statistics on ethnic origin of the judiciary. Using the statistics provided, it is apparent that if one restricts analysis to the black and Asian ethnic communities, for which groups statistics are available, then there are no members of those groups above the level of circuit judge and at that level, the ethnic minority representation is 1%. At the level of recorder, the percentage is 3%, at District Judge level, it is 3%, and at Deputy District Judge level, it is 2%. In the magistrates’ courts, black and Asian people make up 3% of the complement of full time District Judges, as the old stipendiary magistrates are now called. Overall picture: a monochromatic judicial bench.
According to Professor Griffith, bias can occur in two forms: personally and corporately (Griffith, The politics of the judiciary 1998). The former is fairly straightforward, occurring where individual judges permit their own personal prejudices to influence their judgment and thus the effective application of the law. The latter form, however, deserves more careful consideration. Corporate bias involves the assertion that the judges as a corpus decide certain types of cases in a biased way. This accusation is more inflammatory than the former type as it asserts that the problem is systemic rather than merely being particular to maverick judges. Consequently, if such a claim is justified, it has to be concluded that the problem if not susceptible to treatment at the individual level, but requires a complete alteration and reform of the whole judicial system.
Griffith claims that, as a consequence of their shared educational experience, their shared training and practical experience at the Bar and their shared social situation as members of the Establishment, judges have developed a common outlook. However, Griffith maintains that they share homogeneous values, attitudes and beliefs as to how the law should operate and be administered. He further suggests that this shared outlook is inherently conservative, if not Conservative in a party political sense. Griffith’s eloquently substantiates his argument by contending that the highest judges in the judicial hierarchy are frequently called upon to decide cases on the basis of a determination of what constitutes the public interest and that, in making that determination, they express their own corporate values which are in turn a product of their position in society as part of the ruling Establishment (Kelly, 2004).
The proviso of impartiality under Article 6 ECHR is absolute and unconditional. It is unfortunately under attack on a daily basis. From the very moment that parties enter the courtroom, to the advocates’ final submission, impartiality becomes an aim rather than a requirement. However, it is erroneous to conclude that judicial bias per se is a threat to the system. In fact, judges believe, inter alia, in the principles of the rule of law, supremacy of parliament, justice, democracy, human rights and constitutional values. When they deliver their judgments they are complying with these principles and values, and thus, one may argue, by doing so they are making a political statement.
Judges will always have personal preferences, prejudices and opinions. Every effort should be made, however, to widen the ethnic and social nature – and culture – of the bench so that it becomes more representative of society. It is important to point out that there is no constitutional requirement for the bench to be representative. Apparently, appointments are solely based on merit. In a profession where advocacy and public speaking is vital, silence often becomes an asset, if not an art. If judges are caught expressing their personal opinions in court, they will subsequently be criticised ostracised. However, if they remain silent, they’ll survive. As Plato questioned ‘who will guard the guards?’, who will, in practice, judge the judges? The judges, of course.
For oscillations to exist and to propagate there must be a returning force that brings equilibrium. The rule of law, reason, impartiality, human rights, the principles of natural justice and, to a certain extent, morality, are such forces in the law. Without these, the legal system would be precluded from achieving justice. Such a view is resonated in the common law, international conventions and doctrinal principles. The right to be tried and judged impartially is a fundamental one. However, if this right is undermined, the scales of justice shall be tipped, losing their equilibrium and becoming the antithesis of their original purpose.