P ART 3: J UDICIAL R EVIEW , U LTRA V IRES AND N ATURAL
10.5 The Rule Against Bias
The first of the rules of natural justice – nemo judex in causa sua – stipulates that no man can be a judge in his own cause. This rule against bias is clearly consis- tent with the characteristics and requirements of a judicial function as seen pre- viously in R v Barnsley Metropolitan Borough Council, ex p Hook. Many cases concern magistrates, as in R v Altrincham Justices, ex p Pennington(1975), where a magistrate was also a member of the county education committee.
Consequently, she had an active connection with the ‘victims’ of an offence committed against the county council when short supplies of vegetables were delivered to two of its schools. The farmer in question had also supplied vegeta- bles to a school of which the magistrate was a governor. Overall, therefore, the magistrate’s interests were sufficient to disqualify her from hearing the criminal
charges. The rule against bias applies also to statutory authorities (R v Hendon Rural District Council, ex p Chorley (1933)) and to domestic organisations (Roebuck v NUM (Yorkshire Area) (No 2) (1978)).
10.5.1 Application of the rule against bias
The rule applies:
(1) where there is some direct interest in the matter to be adjudicated and
(2) where, short of a direct interest, there is some reasonable suspicion, appear- ance or likelihood of bias.
In the first case there are few problems, eg where there is some direct financial interest in proceedings as in R v Hendon Rural District Council where the local planning authority’s decision granting planning permission was quashed by the court because a member of the authority was an estate agent appointed to deal with that land. This separate category was alluded to in the judgment in R v Camborne Justices, ex p Pearce (1955), where it was observed that:
... any direct pecuniary or proprietary interest in the subject matter of a pro- ceeding, however small, operates as an automatic disqualification. In such a case the law assumes bias.
A further example of a case in which a person sitting in an adjudicative capacity had a pecuniary interest in the outcome of the proceedings is the well known case of Dimes v Proprietors of Grand Junction Canal (1852). In this case, decrees were affirmed by Lord Cottenham LC in favour of a canal company in which he had a considerable shareholding. In setting aside the decrees, the House of Lords were not concerned whether there was in fact bias, or, whether there was some reasonable suspicion, appearance or likelihood of bias. It was enough that the nature of Lord Cottenham’s interest was such that public confidence in the administration of justice demanded that his decision be set aside. Lord Campbell summarised the position thus:
No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred.
In the case of the more indirect type of bias, (2), the generally accepted rule was that:
... in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nev- ertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless there must appear to be a
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real likelihood of bias. Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely to proba- ble that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice if that reasonable people might think he did (per Lord Denning in Metropolitan Properties Co (FGC) Ltd v Lannon(1969)
In this case the court quashed the decision of a Rent Assessment Committee by which the rent of certain flats was reduced. The solicitor chairman of the Committee lived with his father and had dealt with disputes between the father and his landlord, a company which was a member of the group of companies to which Metropolitan Properties belonged.
Although there is a strong presumption that the rule against bias applies in the context of a judicial function, there are occasions when the court has regarded it as inappropriate to apply the law concerning a suspicion of bias. For example, the membership of an expert tribunal will not be disqualified by refer- ence to their pre-existing knowledge and impressions. Any suggestion that a tri- bunal is affected by an unlawfully biased predetermination in a particular case is dealt with in the leading statement of principle by Lord du Parcq in R v Westminster Assessment Committee (1940) where he stated that:
... the experience of an expert tribunal ... is part of its equipment for deter- mining the case. Litigants must take that experience as they find it, and because the tribunal is assumed to be impartial they have no grievance if they cannot test it by cross-examination.
Nevertheless, even in these circumstances, evidence of some overtly prejudicial views of a particular case by a member of the tribunal would amount to a rea- sonable suspicion of bias. Similarly, previously expressed views in respect of a particular case may suggest prejudgment sufficient to amount to unlawful bias (R v Kent Police Authority, ex p Godden (1971)). However, where any administra- tive agency appears to be unlawfully prejudging a case by reference to a policy the court may well conclude that at that stage there is an administrative function in which case the rule against bias cannot apply (Franklin v Minister of Town and Country Planning(1947)). Whenever a policy affects a decision it is a factor which may prevent a wholly impartial adjudication of the competing rights and inter- ests, hence the law’s acceptance of the proposition that the rule against bias can only operate in relation to a truly judicial function. The policy of a government department, for example, may be to encourage local authorities in a time of chronic housing shortage to buy land for house building even though some of the land is not wholly suitable for that purpose. Accordingly, any compulsory purchase order submitted to the Secretary of State by a local authority would probably be confirmed even though in normal circumstances any strong, well- founded objections based on the suitability of the land would normally lead to an adjudication in favour of the landowner and against the local authority.
10.5.2 The test for bias
The test has recently been the subject of consideration by the House of Lords in R v Gough (1993), a case which involved an appeal against conviction for con- spiracy to rob on the ground that a member of the jury was the next door neigh- bour of the appellant’s brother. Originally, it had been the intention of the prosecution to also proceed against the brother, but the case against him had been dropped at the committal stage on the grounds of insufficient evidence. In order for the House of Lords to determine the matter before them, it was neces- sary to conduct a review of the authorities which were, in the opinion of Lord Goff, ‘not only large in number, but bewildering in their effect’. Since the deci- sion in Lannon, the court had tended to set aside any decision by reference to the objective test of a reasonable suspicion of bias. This case was however distin- guished by the High Court in R v Sevenoaks District Council, ex p Terry (1985) where the council had accepted a tender for the lease of a site in its ownership from a development company. Thereupon the council granted planning permis- sion for the agreed development before a formal agreement was struck between the parties. The decision to grant planning permission was challenged unsuc- cessfully. The court concluded that administrative decisions, if they were sub- ject to challenge on the Lannon test, would lead to an administrative impasse where the local authority owned the land in question. The test was whether the authority had exercised a proper discretion: remarkably the court found that a proper discretion was exercised, prior to the formal agreement.
Another test was expounded by the court in R v Barnsley Licensing Justices, ex p Barnsley and District Licensed Victuallers’ Association (1960) where Devlin LJ considered that the members of the court had to satisfy themselves that there was a real likelihood of bias. Compared with the test defined by Lord Denning in Lannon, this test is concerned essentially with the subjective estimation of bias by the members of the court. Another version of the objective test occurred inR v Sussex Justices, ex p McCarthy (1924) where Lord Hewart CJ said that it is ‘... of fundamental importance that justice should not only be done, but should mani- festly and undoubtedly be seen to be done’. Applying the test of a real likeli- hood of bias in the Barnsley Licensing Justices case, the court found that Justices who were members of the Co-operative Society which was applying for a spirits off-licence were legally disqualified. However, it was decided that certiorari would not lie to quash the decision since there was no real likelihood of bias. It is probably the case that there was very little if any difference in the result of applying the two tests. Interestingly, Lord Goff was of the opinion in R v Gough that whilst Lord Denning in Lannon purported to differ from the remarks of Lord Justice Devlin in the Barnsley Licensing Justices case, what he in fact said differed very little from that which had been said by the latter. To an extent the point is of academic interest only since R v Goughhas now clarified the position with regard to the ‘reasonable suspicion test’ and the ‘real likelihood test’. In all cases of apparent bias, whether they involve justices or members of other infe-
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rior tribunals, or, as in the present case, jurors or alternatively arbitrators, the test is now that if there is a real danger of bias on the part of the decision-maker then justice requires that the decision should not be allowed to stand. In so find- ing, the House of Lords applied the ‘real danger’ test laid down in R v Spencer (1987). The preference for the statement of the test in terms of ‘real danger’
rather than ‘real likelihood’ reflects a deliberate attempt by the House of Lords
‘to ensure that the court is thinking in terms of possibility rather than probabil- ity of bias’. Lord Woolf summed up the view of their Lordships when he con- cluded his judgment with the observation that:
The real danger test is quite capable of producing the right answer and ensure that the purity of justice is maintained across the range of situations where bias may exist.
Since the decision in Gough, the real danger test for bias has been applied in a number of cases. In R v Bailey (1994), for example, an appeal against conviction was not upheld where a juror had accidentally sighted the defendant at a tube station during the course of the trial since although the jury had collectively dis- cussed the sighting and the juror’s fear, the incident had not coloured their deci- sion; in the circumstances, there was no real danger of bias. By contrast, in R v Khan(1995), there was held to be a real danger of bias where a juror knew one of the witnesses called on the defendant’s behalf as well as the victim of the crime and the victim’s mother. Accordingly, the appeal against conviction was allowed and a retrial was ordered at a Crown Court where the likelihood of wit- nesses and jurors knowing one another would be reduced.
10.5.3 Modification or exclusion
The rule can be modified or excluded by statute. Equally, the common law may exclude or modify the rule, eg on the ground of necessity or by reference to a party’s waiver of his legal right requiring observance of the rule as in Thomas v University of Bradford (No 2) (1992). Necessity might well be pleaded where no other suitable adjudicator is available while waiver requires that the party knows of the adjudicator’s disqualification (R v Essex Justices, ex p Perkins (1927)). The statutory exclusion or modification of the rule usually relates to some governmental function where the particular administrative agency is nec- essarily judge in its own cause in the absence of any other statutory machinery securing independent facilities for the performance of relevant functions. In Wilkinson v Barking Corporation (1948) the relevant legislation provided that a person’s entitlement to a superannuation allowance was to be determined ini- tially by his local authority employer with an appeal to the Minister of Health, even though both parties contributed to the relevant fund. In Jeffs v New Zealand Dairy Production and Marketing Board(1967) it was also decided that there could be no legal objection on the matter of bias to an order of the Board which allo- cated areas of supply among various companies, even though the Board had made large loans to one of the companies and so had an interest in its prosper-
ity, since these were functions expressly conferred on the Board by statute.
Statute may also expressly clarify areas of difficulty in relation to the rule against bias. Section 3 of the Justices of the Peace Act 1949, as re-enacted in 1979, prohibited a magistrate from hearing an action brought by a local authority of which he is a member. However, s 130 of the Licensing Act 1964 stipulates that a magistrate is not disqualified from hearing a licensing application merely because he is a member of the licensing planning committee. Nevertheless, s 193 of the Act states that:
No justice shall act for any purpose under this Act in a case that concerns any premises in the profits of which he is interested ... Provided that a justice shall not be disqualified under this provision by reasons only of his having vested in him a legal interest only, and not a beneficial interest, in the premises concerned or the profits of them.
The section goes on to state that no act done by any justice disqualified by the section shall be invalid by reason only of the statutory disqualification.