In 1920, a judge told a London taxi driver to take him to “the courts of justice”. “Where’s that?” the cabbie asked. “The law courts”, said the judge. “Oh, I know,” said the driver “but it ain’t the same thing.”

It is true that justice and law are not the same territory but some ideas of justice are in the heart of British law. It’s a cardinal principle of justice that a judge must not be biased. Laws must be applied impartially. Like an imbalanced set of weighing scales, a biased judge will give an unreliable result.

Rarely does a judge himself become the subject of a legal case, and get judged by other judges. That, though, is what’s just happened as the Court of Appeal has ruled that Mr Justice Peter Smith should have stood aside from a case in which he had “undoubted animosity” towards one of the parties. What laws control possible bias in a judge?

The basic rule is that a judge cannot sit in a case in which he or she has a financial interest or knows someone involved as a friend, foe or family member. There must be nothing that may make it appear to the public that the judge is partisan, even if in fact he is not.

Expert View

The second-oldest profession is set to restyle the oldest profession

Gary Slapper: Case Notes

• More

• Post a comment

Related Links

• The Law Explored: ethnic minorities and the judiciary

• The Law Explored: the importance of a legal definition

• The Law Explored: the art of cross-examination

When Judge Patrick Hooton found himself about to hear an appeal from an animal rights campaigner at Winchester Crown Court in 1999, he stood down. The case was an appeal against conviction for aggravated trespass on land where a pheasant shoot was taking place, and Judge Hooton admitted to the court "I am a member of the Countryside Alliance. I support shooting."

For centuries, the English legal system has operated the rule nemo judex in causa sua - Latin for “nobody [should] be a judge in his own case”. This means you can’t judge a case in whose outcome you have an interest. A landmark decision, Dimes v Grand Junction Canal (1852), concerned the Lord Chancellor, Lord Cottenham. He owned a substantial shareholding in the defendant canal company but still judged the case. In an appeal, the House of Lords said he should not have done.

Even if a judge is in fact uninfluenced by his financial interest in coming to a decision (as where he forgets he has shares in a company that is a party), it would still be wrong to preside in such a case because it might look like he was improperly swayed. That is the meaning of the famous saying (or “dictum” in legal language) from a case in 1924 that "justice must not only be done but should manifestly and undoubtedly be seen to be done".

In Locobail (UK) Ltd v Bayfield Properties Ltd (2000), the Court of Appeal, set out guidelines about when a judge should recuse himself (refuse to sit) for reasons of bias or apparent bias. It noted that everyone is entitled to a fair hearing by an impartial tribunal (a guaranteed fundamental human right) , and all legal arbiters are bound to apply the law “without fear or favour, affection or ill-will”. The court said that some allegations of bias would not be plausible, like one based on the religion, ethnic origin, gender, age, class, or sexual orientation of the judge. Nor, ordinarily, the court decided, could an objection be soundly based on his social or educational background, or previous political associations.

By contrast, the court ruled, a real danger of bias might arise if there were personal friendship or animosity between the judge and any member of the public involved in the case.

In another case, in 2006, the issue was whether a judge should have stood down as he knew one of the witnesses. In a complicated commercial trial, the judge had decided that rather than stand down when he realised that one of the witnesses was a friend of his, he’d simply agree to that witness being replaced by someone else from the same company. It would be a huge inconvenience to halt the civil trial, and reschedule it before another judge. Saying that decision was wrong, the Court of Appeal ruled that if there was evidence of “an apparent bias” (meaning a possible bias), then inconvenience, costs and delay in finding a substitute judge were not acceptable reasons for the original judge continuing to preside. The judge, Mr Justice Evans-Lombe, said he had known the witness for the claimants for 30 years: “Our children are friends and we have dined with each other on a number of occasions”. Even once the friend had pulled out of the case though, the judge would still be trying a dispute in which his friend had a clear interest, and that would be unacceptable.

In 1936, in a speech to the Lord Mayor’s banquet, Lord Chief Justice Hewart said “His Majesty’s judges are satisfied with the almost universal admiration in which they are held”. Clearly, he needed to have gotten out more. Today, however, partly because there is clear law against bias, most judges, most of the time have public approval.

Professor Gary Slapper is Director of the Centre for Law at The Open University

Times Recommends

• The best legal yarns this Christmas
• Legal school 'earned £1m by exploiting bar course'
• Axe may fall on 5,000 more City lawyers