Rule against bias[edit]

In general[edit]

A person is barred from deciding any case in which he or she may be, or may fairly
be suspected to be, biased. This principle embodies the basic concept of
impartiality,[11] and applies to courts of law, tribunals, arbitrators and all those
having the duty to act judicially.[12] A public authority has a duty to act judicially
whenever it makes decisions that affect people's rights or interests, and not only
when it applies some judicial-type procedure in arriving at decisions.[13]

The basis on which impartiality operates is the need to maintain public confidence
in the legal system. The erosion of public confidence undermines the nobility of
the legal system and leads to ensuing chaos. [14] The essence of the need for
impartiality was observed by Lord Denning, the Master of the Rolls,
in Metropolitan Properties Co (FGC) Ltd v Lannon (1968):[15] "Justice must be
rooted in confidence and confidence is destroyed when right-minded people go
away thinking: 'The judge was biased.'"[15]: 599 

Public confidence as the basis for the rule against bias is also embodied in the
often-quoted words of Lord Hewart, the Lord Chief Justice of England and Wales,
that "[i]t is not merely of some importance, but of fundamental importance that
justice should not only be done, but should manifestly be seen to be done".[16]

Forms of bias[edit]
Actual and imputed bias[edit]
A portrait of the Lord Chancellor, Lord Cottenham (Charles Pepys, 1st Earl of
Cottenham, 1781–1851), by Charles Robert Leslie. In Dimes v Grand Junction
Canal (1852), his Lordship was disqualified from hearing a case as he had a
pecuniary interest in the outcome.

Bias may be actual, imputed or apparent. Actual bias is established where it is

actually established that a decision-maker was prejudiced in favour of or against a
party. However, in practice, the making of such an allegation is rare as it is very
hard to prove.[17]

One form of imputed bias is based on the decision-maker being a party to a suit, or
having a pecuniary or proprietary interest in the outcome of the decision. Once this
fact has been established, the bias is irrebuttable and disqualification is automatic
—the decision-maker will be barred from adjudicating the matter without the need
for any investigation into the likelihood or suspicion of bias. [18] A classic case
is Dimes v Grand Junction Canal (1852),[18] which involved an action between
Dimes, a local landowner, and the proprietors of the Grand Junction Canal, in
which the Lord Chancellor, Lord Cottenham, had affirmed decrees made to the
proprietors. However, it was discovered by Dimes that Lord Cottenham, in fact,
owned several pounds' worth of shares in the Grand Junction Canal. This
eventually led to the judge being disqualified from deciding the case. There was no
inquiry as to whether a reasonable person would consider Lord Cottenham to be
biased, or as to the circumstances which led Lord Cottenham to hear the case.

In certain limited situations, bias can also be imputed when the decision-maker's
interest in the decision is not pecuniary but personal. This was established in the
unprecedented case of R v Bow Street Metropolitan Stipendiary Magistrate Ex
parte Pinochet Ugarte (No.2) (1999).[19] In an appeal to the House of Lords,
the Crown Prosecution Service sought to overturn a quashing order made by
the Divisional Court regarding extradition warrants made against the ex-Chilean
dictator, Senator Augusto Pinochet. Amnesty International (AI) was given leave
to intervene in the proceedings. However, one of the judges of the case, Lord
Hoffmann, was a director and chairperson of Amnesty International Charity Ltd.
(AICL), a company under the control of AI. He was eventually disqualified from
the case and the outcome of the proceedings set aside. The House of Lords held
that the close connection between AICL and AI presented Lord Hoffmann with an
interest in the outcome of the litigation. Even though it was non-pecuniary,
the Law Lords took the view that the interest was sufficient to warrant Lord
Hoffmann's automatic disqualification from hearing the case. In Locabail (UK) Ltd
v Bayfield Properties Ltd (1999),[20] the Court of Appeal warned against any further
extension of the automatic disqualification rule, "unless plainly required to give
effect to the important underlying principles upon which the rule is based".[20]: 465 

Apparent bias[edit]

Apparent bias is present where a judge or other decision-maker is not a party to a

matter and does not have an interest in its outcome, but through his or her conduct
or behaviour gives rise to a suspicion that he or she is not impartial. [21] An issue
that has arisen is the degree of suspicion which would provide the grounds on
which a decision should be set aside for apparent bias. Currently, cases from
various jurisdictions apply two different tests: "real likelihood of bias" and
"reasonable suspicion of bias".

The real likelihood test centres on whether the facts, as assessed by the court, give
rise to a real likelihood of bias.[22] In R v Gough (1993),[23] the House of Lords
chose to state the test in terms of a "real danger of bias", and emphasized that the
test was concerned with the possibility, not probability, of bias. Lord Goff of
Chievely also stated that "the court should look at the matter through the eyes of a
reasonable man, because the court in cases such as these personifies the reasonable
man".[23]: 670  However, the test in Gough has been disapproved of in some
Commonwealth jurisdictions. One criticism is that the emphasis on the court's view
of the facts gives insufficient emphasis to the perception of the public. [24] These
criticisms were addressed by the House of Lords in Porter v Magill (2001).[25] The
Court adjusted the Gough test by stating it to be "whether the fair-minded and
informed observer, having considered the facts, would conclude that there was a
real possibility that the tribunal was biased". [25]: 494  This case therefore established
the current test in the UK to be one of a "real possibility of bias".

On the other hand, the reasonable suspicion test asks whether a reasonable and
fair-minded person sitting in court and knowing all the relevant facts would have a
reasonable suspicion that a fair trial for the litigant is not possible. [26] Although not
currently adopted in the UK, this test has been endorsed by the Singapore courts.[27]

It has been suggested that the differences between the two tests are largely
semantic and that the two tests operate similarly. In Locabail, the judges stated that
in a large proportion of the cases, application of the two tests would lead to the
same outcome. It was also held that "[p]rovided that the court, personifying the
reasonable man, takes an approach which is based on broad common sense, and
without inappropriate reliance on special knowledge, the minutiae of court
procedure or other matters outside the ken of the ordinary, reasonably well-
informed members of the public, there should be no risk that the courts will not
ensure both that justice is done and that it is perceived by the public to be done". [20]: 
477 
 In the Singapore High Court decision Tang Kin Hwa v. Traditional Chinese
Medicine Practitioners Board (2005),[14] Judicial Commissioner Andrew
Phang observed that the real likelihood test is in reality similar to that of
reasonable suspicion. First, likelihood is in fact "possibility", as opposed to the
higher standard of proof centring on "probability". Secondly, he suggested
that real in real likelihood cannot be taken to mean "actual", as this test relates to
apparent and not actual bias. He also observed that both the court's and the public's
perspectives are "integral parts of a holistic process" with no need to draw a sharp
distinction between them.[14]: 617–8 

In contrast, in Re Shankar Alan s/o Anant Kulkarni (2006),[28] Judicial

Commissioner Sundaresh Menon thought that there was a real difference between
the reasonable suspicion and real likelihood tests.[28]: 101  In his
opinion, suspicion suggests a belief that something that may not be provable could
still be possible. Reasonable suggests that the belief cannot be fanciful. Here the
issue is whether it is reasonable for the one to harbour the suspicions in the
circumstances even though the suspicious behaviour could be innocent. On the
other hand, likelihood points towards something being likely, and real suggests
that this must be substantial rather than imagined. Here, then, the inquiry is
directed more towards the actor than the observer. The issue is the degree to which
a particular event is not likely or possible[28]: 99  Menon J.C. also disagreed with both
Lord Goff in Gough and Phang J.C. in Tang Kin Hwa in that he thought the shift of
the inquiry from how the matter might appear to a reasonable man to whether the
judge thinks there is a sufficient possibility of bias was "a very significant point of
departure".[28]: 103  The real likelihood test is met as long as the court is satisfied that
there is a sufficient degree of possibility of bias. Although this a lower standard
than satisfaction on a balance of probabilities, this is actually directed at mitigating
the sheer difficulty of proving actual bias, especially given its insidious and often
subconscious nature. The reasonable suspicion test, however, is met if the court is
satisfied that a reasonable member of the public could harbour a reasonable
suspicion of bias even though the court itself thought there was no real danger of
this on the facts. The difference is that the driver behind this test is the strong
public interest in ensuring public confidence in the administration of justice. [28]: 107–
8 
 As of September 2011, the Court of Appeal of Singapore had not yet expressed a
view as to whether the position taken in Tang Kin Hwa or Shankar Alan is
preferable.

Exceptions to the rule against bias[edit]

Necessity[edit]

There are cases in which a disqualified adjudicator cannot be replaced, as no one

else is authorized to act. It has been observed that "disqualification of an
adjudicator will not be permitted to destroy the only tribunal with power to act".
[29]
 In such cases, natural justice has to give way to necessity in order to maintain
the integrity of judicial and administrative systems.[30]

This issue regarding necessity was raised in Dimes.[18] The Lord Chancellor had to
sign an order for enrolment in order to allow the appeal to proceed from the Vice-
Chancellor to the House of Lords. It was held that his shareholding in the canal
company which barred him from sitting in the appeal did not affect his power to
enroll, as no one but him had the authority to do so. It was mentioned this was
allowed "for this [was] a case of necessity, and where that occurs the objection of
interest cannot prevail".[18]: 787 

Waiver[edit]

The court normally requests that an objection be taken as soon as the prejudiced
party has knowledge of the bias.[31] If an objection is not raised and proceedings are
allowed to continue without disapproval, it will be held that the party has waived
its right to do so.[32]

Effect of a finding of bias[edit]

In Dimes,[18] the judges advised the House of Lords that Lord Cottenham's

pecuniary interest made his judgment not void, but voidable. This advice is not
wrong in the context of a judicial act under review, where the judgment will be
held valid unless reversed on appeal.[33]

However, in the cases of administrative acts or decisions under judicial review, the
court can only intervene on the grounds of ultra vires,[33]: 401  hence making the
judgment void. Lord Esher said in Allison v General Council of Medical Education
and Registration (1894)[34] that the participation of a disqualified person "certainly
rendered the decision wholly void".[34]: 757