Can a Judge Be Impartial?

‘Judges are impartial decision makers in the pursuit of justice’. To what extent is this claim plausible?

Impartiality, is defined by the Oxford English Dictionary^[1], as ‘treating all rivals or disputants equally’, meaning no judge should influence the outcome of the case for reasons other than those of the law. In line with the principles of the rule of law, and so that this can function properly in a healthy democracy, the impartiality of our judiciary must be secured. To ensure equality of legal protection for all, the judiciary must share homogenous constitutional values, beliefs and aims as to the operation of our system of law, and apply these principles in a rational, consistent, mechanical and deliberative manner.^[2] The significance of this concept was illustrated in 2013, when an ‘Official Guide to Judicial Conduct’^[3] was published. This journal, produced specifically for the judiciary, details principles which judges can apply, and which direct their decision making in the courtroom. The existence of this journal shows an attempt to have a judiciary who share consistent values. However, it has not always been the case that judges have acted constantly, and in a wholly impartial manner in the pursuit of justice. Indeed, instances have been reported where judges have acted in an antithetical way to how legal theory recommends, leading to unfair trials resulting in a lack of confidence in the judiciary and prompting media interest. The case law relating to this kind of breach of conduct, and the supporting statistics, are the two key strands of my argument. This essay will ultimately conclude that it is virtually impossible in our society for judges to be labelled as truly impartial in nature, and that judges are prone to cognitive fallacies and bias^[4] that directly impacts their decision making.

Before embarking on a study of the possible impartiality of our judiciary, one must first appreciate their role in the courtroom, and the importance of the role of the judge in the protection of human rights. The judiciary is the arm of government that oversees and addresses disputes within the law. Their role is to interpret and chair major enquiries of law, showing no preference for either side in the pursuit of justice. In interpreting cases placed in front of them, the judiciary are entrusted as lawmakers; as such the pressure put upon the appointment process is vast. Since April 2006, judicial appointments have been the responsibility of an independent Judicial Appointments Commission,^[5] this process is independent of Government, accountable and totally transparent^[6]. The aim of the new process, which, in its previous incarnation was chaired by the Lord Chancellor, is to attract suitably qualified candidates from a wider range of social backgrounds and from a wider range of legal practice. In its former guise the argument was raised that selectors tended to choose people in their own image, generally, white males with similar educational backgrounds. Despite the change of appointment process, in a lecture at Birmingham University in 2015, Lady Hale, our most senior female judge, commented on the continuing social imbalance among the senior judiciary^[7], expressing that we remain ’behind the times’ in terms of diversity. The statistics in support of Lady Hale’s hypothesis are shocking, with only 15.5% of High Court judges being women, and 4.5% from an ethnic background. Only 10.5%of judgeson the Court of Appeal are women and there are none of an ethnic background^[8]. Clearly, our judiciary are not representative of a wide society. Consequently, these factors may perturb and contaminate the method by which a judge reaches his decision, making it implausible to say that judges will rule on cases in the same way. This links to the principle of fairness which is outlined in the Human Rights Act (HRA)^[9], the greatest value of which is the recognition of our fundamental constitutional rights. The standards imposed by Article 6 of the HRA are thought to have significant influence in terms of the judiciary’s methods of statutory interpretation. It identifies that ‘in the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The right to a fair hearing has been described as a rule of universal application^[10] in the case of decisions which may have an impact on our rights. Kanda v Government of the Federation of Malaya^[11] is a case illustrating an unfair trial, in which the defendant had not been allowed to see vital evidence relevant to his arrest, and further was denied the reasonable opportunity to defend himself in court. Denning, the leading judge in the case, utilised the legal maxim: nemo judex in causa sua to advocate his decision, that a breach of natural justice had been permitted, and therefore the judgement rendered invalid. Within the HRA, the proviso of impartiality is absolute and unconditional. Whilst a declared right, this can only be a desire, not necessarily reality, because of human nature.

Partiality is inherent to human nature. Recognising this, the scales of justice can easily be tipped, losing their equilibrium and becoming the antithesis of their original purpose. Many believe that due to this idea of ‘partiality’, judges could be seen as being intrinsically biased; there will always be a degree of influence from non-legal arguments; in particular, the personal values held by the individual. If we look closely at the two separate areas of the mind, we have the conscious and the sub-conscious. The conscious is what is known explicitly to us, demonstrated in the following areas: statute, precedent, judicial procedures, etc.. The sub-conscious, things that are less tangible, may be illustrated in forms such as implicit bias, opinion and heuristics.  Porter v Magill^[12] sets out the test for bias in common-law, namely “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. Before Porter v Magill came the case of Re Pinochet^[13], the most famous case of alleged judicial bias. Lord Hoffman was disqualified from sitting on the House of Lords when it emerged that he was an unpaid director of an organization run by Amnesty International. Although Lord Hoffman had no personal interest in the case, both Amnesty International and its subsidiary were parts of a movement working towards the same goals with an interest in the outcome of the proceedings. The House therefore applied the doctrine of ‘automatic disqualification’ on the basis of natural justice. The ambiguity of the notion of bias arose in the case of R v Gough[14]  where it was commented that ‘…even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias.’^[15] If a judge is seen to be acting with bias, then the law cannot be applied fairly. This would then contravene one of the principles of the rule of law, which states that the process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient^[16], whilst also contradicting Article 6 of the HRA, the right to a fair trial. How can a judge be identified as impartial if bias is ingrained in everyone?

In November 2013, the headline of the Independent newspaper read: ‘Courts are biased against blacks with white offenders handed more lenient sentences’^[17]. The article included shocking statistics: ‘The proportion of white criminals sentenced to immediate custody by the courts was 26 per cent while the proportion of black criminals sent to prison was 31 per cent and Asians 32 per cent. The average custodial sentence for white offenders was 15.9 months; for black prisoners, it was 23.4 months.’^[18]. Peter Herbert, one of UK’s only non-white judges, has publicly said that our justice system is riddled with ‘casual discrimination’^[19] not only in cases of racism, but concerning extraneous factors such as gender, political views and sexual orientation. The cases of R v Brown^[20] and R v Wilson^[21] , though related to similar forms of offence, result in strongly conflicting decisions. The former involved a group of homosexuals who entertained various consensual sadomasochistic activities over a period of ten years, of which all the individuals were convicted of “unlawful and malicious wounding” and “assault occasioning actual bodily harm” contrary to sections 20 and 47 of the Offences Against the Person Act 1861^[22]. Correspondingly, the latter involved a married couple, where the husband branded his wife with a heated knife at her request. The husband was convicted of assault causing actual bodily harm but on appeal his conviction was overturned. Though the cases are similar the views of the respective judges were polar opposites. Consent was seen to be valid in heterosexual couples (R v Wilson), but not in homosexual couples (R v Brown). Bunting, in his blog post titled: ‘BLURRED VISION: How Flawed was R v Brown’^[23], draws attention to the suspicious notions of the judgement, identifying that the comments made by the following judges could be regarded as homophobic. Lord Jauncey described the activities as “rather curious”, Lord Mustill saying that “whatever the outside might feel about the subject matter of the prosecution — perhaps horror, amazement or incomprehension, perhaps sadness — very few could read even a summary of the other activities without disgust”, and Lord Slynn deemed “[it was not] necessary to refer to other facts which are … which can only add to one’s feeling of revulsion and bewilderment…”.  Could it be that personal views relating to sexual orientation had influenced the judges in R v Brown? In line with the principles of the rule of law, upholding the principles of natural justice and equality, as required by the HRAt, questions of legality should not be influenced by concepts of morality. These can be interpreted by individuals in different ways, and judges, whilst pursuing justice, can be influenced by their own interpretation of what is right or wrong, thereby affecting their impartiality and the outcome of the case.

The ongoing philosophical argument of the two jurisprudential schools of thought: legal formalism and legal realism, pose an additional argument into the question of impartiality at the hand of the judge. Legal formalists believe that the rationality of law is determinate; and that there “could be no liability without fault”^[24]. They refer solely to legislature in their decision making because, above all, formalists seek to enforce what the law says rather than questioning what it could say. On the other hand, realists are radical in nature. They believe in the application of legal reasons along with the psychological, political and social influences that may come along with them — they are creative and liberal. It is generally thought that judges fall into the ‘formalist’ category, with the idea being that judicial decision-making is nothing more than a mechanical process of deduction to reveal the true outcome. In fact, judges fall in-between the two, because the reality is that the model may be considered a spectrum of views with judges at each extreme, and others in between. Lord Denning was a realist who believed that the law was too old-fashioned, too constrained, and hence he was known as a ‘realist in his stewardship of the law’. The realist view is illustrated by the popular caricature; ‘what the judge ate for his breakfast’, a jokey impression that suggests extraneous factors such as what a judge has for breakfast can sway highly consequential decisions of expert decision makers. This idea was illustrated in Alex Kosinki’s literary work: ‘What I ate for breakfast and other mysteries of judicial decision making’^[25], where he explored the notion of exactly how much of an implication superfluous factors may have on decisions made on behalf of the accused. Researchers at the Proceedings of the National Academy of Sciences further explored this theory, and collated research as to the judicial rulings in line with mealtimes. The information collected shows that the likelihood of a ruling in favour of a prisoner spikes at the beginning of each session, declining throughout the day to nearly zero and then jumping back up to the higher levels after a meal break^[26]. Since decisions made in court may have lifelong implications – even freedom may be at stake; the fact that this could depend on the time of day when one’s case is heard – or simply whether the judge had a beneficial breakfast, then the civil liberty strived for in the HRA seems hollow. This study proves that superfluous factors influence decision making, undermining partiality.

Although a truly impartial and independent judiciary is desirable, when looking at case law it becomes clear that extraneous factors have implications on judicial decision making. As discussed, it has become evident that there will always be the influence of non-legal matters when decisions are made in court. Who the judge is matters.  In legal training, decision makers seek to be removed from the ‘human condition’ of subjectivity, making them into objective thinkers^[27]. However, we must be realistic, recognizing that judges too have a background; no matter how elitist – a life; no matter how luxurious – and a political mind; no matter how conservative. It is arguable that these factors, in addition to educational upbringing, religion, gender, sexual orientation, institutional memberships and lifestyle, can develop and mould views that may create an imbalance in the scales of justice. As Lord Phillips famously said in 2011, ‘…if you sit 5 out of 12 judges on a panel and reach a decision 3:2, it is fairly obvious that if you have a different 5 you might reach a decision 2:3 the other way’. This perfectly aligns with my view. Judges are human, and although legal training seeks to address the matter of personal influence, they cannot be immune. With the common ambition of delivering justice, the reality is that the judiciary, being human, cannot be truly impartial.

---

^[1] Oxford English Dictionary

^[2] Daniel Kahneman, ‘Extraneous factors in judicial decisions’ Proceedings of the National Academy of Sciences of the United States of America <http://www.pnas.org/content/108/17/6889.full> accessed 27th February 2017.

^[3]Judiciary of England and Wales, ‘Guide to Judicial Conduct’ (2013) <https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/judicial_conduct_2013.pdf> accessed 27th February 2017.

^[4]http://aja.ncsc.dni.us/publications/courtrv/cr49-2/CR49-2Peer.pdf

^[5] https://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/jud-appts/

^[6]http://webarchive.nationalarchives.gov.uk/20100512160448/dca.gov.uk/consult/jacommission/judges.pdf

^[7] https://www.theguardian.com/law/2013/feb/21/lady-hale-speech-judicial-diversity

^[8] https://www.theguardian.com/law/2013/feb/21/lady-hale-speech-judicial-diversity

^[9] http://www.legislation.gov.uk/ukpga/1998/42/schedule/1

^[10] Ridge v Baldwin [1964] AC 40.

^[11]KANDA V GOVERNMENT OF THE FEDERATION OF MALAYA: PC 2 APR 1962 UKPC 2, [1962] 2 WLR 1153

^[12] Porter v Magill [2002]

^[13] Re Pinochet Ugarte [1999] All ER (D) 18 R v Bow Street Metropolitan Stipendiary Magistrate (ex parte Pinochet) [2000] 1 AC 119

[14] R v Gough  [1993] AC 646 at 659

^[15] R v Gough  [1993] AC 646 at 659

^[16]https://worldjusticeproject.org/about-us/overview/what-rule-law

^[17] http://www.independent.co.uk/news/uk/crime/courts-are-biased-against-blacks-with-white-offenders-less-likely-to-be-jailed-for-similar-crimes-8959804.html

^[18] http://www.independent.co.uk/news/uk/crime/courts-are-biased-against-blacks-with-white-offenders-less-likely-to-be-jailed-for-similar-crimes-8959804.html

^[19]http://www.independent.co.uk/news/uk/home-news/uk-justice-system-racist-ethnic-minority-judges-peter-herbert-lutfur-rahman-tower-hamlets-a7518176.html

^[20]R v Brown [1994] 1 AC 212

^[21]R v Wilson (1996) 2 Cr App Rep 241

^[22] http://www.legislation.gov.uk/ukpga/Vict/24-25/100/contents

^[23]http://durhamprobono.blogspot.co.uk/2013/02/blurred-vision-how-flawed-was-r-v-brown_11.html

^[24] Law Society: Origins, Interactions and Change. John Sutton. Chapter 5. Page 138.

^[25]Alex Kozinski, What I Ate for Breakfast and Other Mysteries of Judicial Decision Making, 26 Loy. L.A. L. Rev. 993 (1993).

^[26]Daniel Kahneman, ‘Extraneous factors in judicial decisions’ Proceedings of the National Academy of Sciences of the United States of America <http://www.pnas.org/content/108/17/6889.full> accessed 27th February 2017.

^[27]http://sftlawyers.com/legal-formalism-vs-legal-realism-the-law-and-the-human-condition/