One of the great advantages of the blog is that the blogger can offer views on all manner of things which he thinks merit discussion. He will know his topic might appeal to one reader but not to another.
My topic today, the impartiality of judges, is I feel sure in that category. One reader might say, “what a dry subject; that’s of no interest to me - of course judges are impartial”, while another might be less easily convinced. By the time my readers get to the end of what I’ve got to say on the subject, I hope they’ll feel able to take an informed view on something which I think is of the highest importance.
What set me thinking of this was a recent judgment in the High Court in which the judge was asked by the Defendant, British Airways, to stand down from the case because, so they said, his conduct raised a perception of potential bias.1 The case report is only seven pages long, and is worth a read by non-lawyers as well as lawyers, not least because what happened to the judge is an all too familiar feature of modern travel.
In short, the judge’s luggage had failed to accompany him on a BA flight from Florence to London, leaving him and his fellow passengers hanging about at Gatwick for 45 minutes before they were told the luggage hadn’t been loaded. The judge took matters up with customer relations and got nowhere so he took it up with the Chairman of BA. What he wanted to know, understandably, was how a plane departs with all the passengers’ luggage left behind, and whether the airline had made a deliberate decision to bump the luggage off.
This led to BA’s lawyers inviting him to stand down from the case, that is, in the arcane language of the law, to recuse himself. They said there was a possibility of bias. The judge described this as an opportunistic application, made by a party that had wanted to get him off the case before. However, because the lawyers had said they would take the matter to the Court of Appeal if he refused to stand down, the judge said he would do so, since otherwise the progress of the case would be slowed down, and would lead to a waste of judicial resource.
A decision clearly made with great reluctance, but nevertheless with the interests of the litigants and the litigation process taking pole position.
To me, that decision vindicates the trust and confidence that stakeholders - a buzzword but one which is apt to describe litigants, lawyers and, most importantly, the public – have and are justified in having in the English legal system. That confidence stems from the independence of the judiciary, grounded as it is on the separation of Parliament, the Executive and the Judiciary in the British Constitution.
Now the judiciary is the sum of its parts; the judges who comprise it. The judges all practise as lawyers before they become judges, and they take with them the ethical rules they were taught and which they absorbed during many years of practice. For example, one of the fundamental professional obligations of lawyers in practice is not to act if there is a conflict of interest. They have to put their client’s interests above all others, including their own, and cases do arise where a lawyer has to cease acting for a client because he discovers a conflict he didn’t know was there when he took the client on. Sometimes clients ask lawyers to push the boundaries, turn a blind eye, don’t rock the boat- the clichés are endless- but once they start to do that they cannot recover. The professional standards which the public rightly expect them to follow are fatally compromised.
While the role of judge cannot give rise to a conflict of interest of the above kind, his fundamental duty is to act impartially, and he must not let any personal interests influence the way he discharges that duty. So, much as the practising lawyer must not let his own interests conflict with his duty to represent his client, so the judge must avoid anything which might conflict with his duty to dispense justice fairly and impartially.
Each time I remind myself of the decision in the British Airways case, I sympathise with the dilemma in which the judge found himself. At the same time I am able to understand why he decided to stand down from the case. Whatever the merits or demerits of the attempts of one of the litigants to have him replaced with another judge, he felt it was not in the interests of justice to carry on with it. In reaching that decision, he cannot have failed to be influenced by the standards learned and absorbed in the years of practice which preceded his appointment to judicial office.
1 Emerald Supplies Ltd v British Airways (2015) EWHC 2201.
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