6. The rule against bias

Automatic disqualification

Financial interest: In Dimes v Grand Junction Canal the Lord Chancellor, Lord Cottenham, had affirmed decrees in favour of a canal company in which he held shares. The House of Lords set aside his decrees. No one suggested he was in fact influenced, but a direct financial interest disqualifies automatically.

Pinochet: In R v Bow Street Magistrate, ex parte Pinochet (No 2) the House of Lords set aside its own earlier decision because Lord Hoffmann was a director of a charity linked to Amnesty International, which had been allowed to intervene. Automatic disqualification was extended to a judge who was closely involved with a party promoting a cause.

Apparent bias

Justice must be seen to be done: In R v Sussex Justices, ex parte McCarthy the clerk to the justices was a member of a firm acting against the defendant in a related civil claim. The conviction was quashed. Lord Hewart CJ said that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

The modern test: In Porter v Magill the House of Lords held that the question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

In practice

Recusal: A judge or official with a possible interest should declare it and stand down. The rule applies to administrative bodies as well as courts, though its content depends on the setting.