2.

Nemo Judex in Causa Sua (Rule against bias)

- Decision maker must not be biased in their decision making processes

- This may be concious or unconscious

R v. Barnsley Licensing Justices ex parte Barnsely and District Licensed Victuallers Association
(1960)

‘ Bias is or may be an unconscious thing and a man may honestly say that he was not actually
biased and did not allow his interest to affect his mind, although, nevertheless, he may have
allowed it unconsciously to do so.’

R v. Sussex Justices

‘ It is not merely of some importance but is of fundamental importance that justice should not
only be done, but should manifestly and undoubtedly be seen to be done. ‘

- The Courts apply the real likelihood of bias test.

Ali Khan v The State

Appellant was convicted of unauthorised entry into the Central Kalahari Game
Reserve contrary to Section 2 of the Central Kalahari Game Reserve (Control of
Entry) Regulations of 1963. The District Commissioner was the person charged
with the administrative responsibilities for the enforcement of the Fauna
Proclamation. He was the judicial officer who convicted appellant of the
charge.

Held:
(i) that the test was not whether there was proof of actual bias on the part
of the judicial officer but whether on the facts there might appear to be a
likelihood of bias;
(ii) that although there was no ground for belief that the appellants did not
have a fair trial the judicial officer should have recused himself;
(iii) that the appeal should be upheld but that the case should be remitted to
be tried by a different judicial officer.

I was also referred to the oft quoted dictum of Lord Hewart that "...(it) is of
fundamental importance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done".

R v. Sussex Justices
Arising out of a collision between a motor vehicle driven by the applicant and a
motor vehicle belonging to W the applicant was convicted on a charge of
dangerous driving. At the bearing, the acting clerk to the justices was a member
of a firm of solicitors who were acting for W in an action against the applicant
for damages received in the collision. When the justices retired for consultation
at the conclusion of the hearing, the acting clerk retired with them in case they
should wish to refer to his notes of the evidence or to be advised on the law, but
the justices did not consult him and he abstained from referring to the case.
Held: it was of fundamental importance that justice should not only be done,
but that it should also be manifestly seen to be done; the question was not
whether the acting clerk, when with the justices, made any observation or
offered any criticism which he could not properly make or offer, but whether he
was so related to the case by reason of the civil action as to be unfit to act for
the justices in the criminal proceedings, and the answer to that question
depended, not on what was actually done, but on what might appear to be
done; what be did might have created a suspicion that there had been an
improper interference with the course of justice; and, therefore, the conviction
of the applicant must be quashed.
R .v Gough
A layman might well wonder why the function of a court in cases such as these
should not simply be to conduct an inquiry into the question whether the tribunal
was in fact biased. After all it is alleged that, for example, a justice or a juryman
was biased, ie that he was motivated by a desire unfairly to favour one side or
to disfavour the other. Why does the court not simply decide whether that was
in fact the case? The answer, as always, is that it is more complicated than that.
First of all, there are difficulties about exploring the actual state of mind of a
justice or juryman. In the case of both, such an inquiry has been thought to be
undesirable; and, in the case of the juryman in particular, there has long been
an inhibition against, so to speak, entering the jury room and finding out what
any particular juryman actually thought at the time of decision. But there is also
the simple fact that bias is such an insidious thing that, even though a person
may in good faith believe that he was acting impartially, his mind may
unconsciously be affected by bias -- a point stressed by Devlin LJ in R v Barnsley
County Borough Licensing Justices, ex p Barnsley and District Licensed Victuallers
Association [1960] 2 All ER 703 at 715, [1960] 2 QB 167 at 187. In any event, there
is an overriding public interest that there should be confidence in the integrity of
the administration of justice, which is always associated with the statement of
Lord Hewart CJ in R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 at 259,
[1923] All ER Rep 233 at 234 that it is --
'of fundamental importance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done.'
Held -- Except where a person acting in a judicial capacity had a direct
pecuniary interest in the outcome of the proceedings, when the court would
assume bias and automatically disqualify him from adjudication, the test to be
applied in all cases of apparent bias, whether concerned with justices, members
of other inferior tribunals, jurors or arbitrators, was whether, having regard to the
relevant circumstances, there was a real danger of bias on the part of the
relevant member of the tribunal in question, in the sense that he might unfairly
regard or have unfairly regarded with favour or disfavour the case of a party to
the issue under consideration by him. Where the case was concerned with bias
on the part of a justices' clerk, the court should go on to consider whether the
clerk was invited to give the justices advice and, if so, whether it should infer that
there was a real danger that the clerk's bias infected the views of the justices
adversely to the applicant. On the facts, the Court of Appeal had applied the
correct test and the appeal would therefore be dismissed.