Judicial Bias: Apparently, Appearances Can Be Deceptive

The relevant principles relating to the appearance of

apparent bias on behalf of a trial judge are well settled in

English law, and were most recently applied by the Jersey

Courts in the matrimonial case of O'Brien v. Marett

& Ors [2007] JRC 236 in which the Third Party

sought to have the presiding judge, the Bailiff, recuse himself

in these proceedings.

In a judgment dated 1st June 2007 (O'Brien v.

Marett & Ors [2007] JRC 109) relating to the costs

of a preliminary issue which had been due to be tried on 29th

May 2007, the Learned Bailiff made a number of adverse and, in

the eyes of the Third Party, highly critical and unjustified

findings, as to the Third Party's conduct in relation to

that hearing. The Third Party contended that the evidence which

he was now placing before the court contradicted these

findings, and that had this information been available to the

court at the time, it would never have come to the conclusions

it did.

The Petitioner opposed the application and contended that

the court was justified in making the findings that it did

which were expressed in appropriate judicial language. Further,

the court had formed a judgment based on the materials before

it at the time which it was entitled to do. The crux of the

Third Party's argument was that, with such adverse findings

against him, and with proceedings still to come, he could not

possibly be afforded a fair trial before the present court.

There are various Jersey cases where the test for apparent

bias have been set out. The test was expressed shortly in the

case of In Re Esteem Settlement [2001] JLR 169

which cited the observations of the Constitutional Court of

South Africa in President of the Republic of South

Africa v. South African Rugby Football Union [1999]

(4) S.A. 147. In that case the court said that an objective

test was appropriate, and that:

"the question is whether a reasonable, objective and

informed person would on the correct facts reasonably apprehend

that the judge has not or will not bring an impartial mind to

bear on the adjudication of the case, that is a mind open to

persuasion by the evidence and the submissions of

counsel".

In the House of Lords case of Porter v.

Magill [2002] 1 All ER 465, it was held that:

"In determining whether there had been apparent bias on

the part of a tribunal, the court should no longer simply ask

itself whether, having regard to all the relevant

circumstances, there was a real danger of bias. Rather, the

test was...