Since our judicial system relies on the decision making of people, the possibility of bias can never be entirely excluded. Judges have a duty to determine cases fairly and we rely on them to be able to do that and to know when they need to stand aside. One of the most prominent cases in this area dates back to 1999 (Re Pinochet). General Pinochet was the Head of State in Chile from 1973 to 1990 and was accused of a number of crimes against humanity. Extradition proceedings were brought against him while he was receiving medical attention in the UK and the matter went to the then House of Lords. One of the law lords, Hoffman LJ was a member of Amnesty International, an organisation which campaigns for human rights. Pinochet’s lawyers appealed the decision of the law lords against their client on the basis that “there was a real danger or reasonable apprehension or suspicion that Lord Hoffman might have been biased” against their client. It is really important to understand that the appeal was around the appearance of bias and not actual bias. The appeal was successful. The international dimension of the case meant that the very highest standards were applied.
There has recently been a Court of Appeal decision in the same area (Re W (children) (private law: reopening/recusal [2020]). In this case a district judge had made findings of fact against the father. She subsequently recused herself from the case on the basis of a “family connection” and the father sought to set aside the findings of fact on the basis of apparent bias. The recusal by the judge was on the basis of a community tie of which she was unaware when she made the findings of fact.
The Court of Appeal restated the test for bias. Would a fair minded and informed observer conclude on the facts that there was a real possibility that the judge was biased? In this case they concluded that there was no basis for such a conclusion.