Forms of bias
Actual and imputed bias
Actual and imputed bias
Bias may be actual, imputed or apparent. Actual bias is established where it is actually established that a decision-maker was prejudiced in favour of or against a party. Bias may be actual, imputed or apparent. Actual bias is established where it is actually established that a decision-maker was prejudiced in favour of or against a party. However, in practice, the making of such an allegation is rare as it is very hard to prove. One form of imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary or proprietary interest in the outcome of the decision. Once this fact has been established, the bias is irrebuttable and disqualification is automatic – the decision-maker will be barred from adjudicating the matter without the need for any investigation into the likelihood or suspicion of bias. A classic case is Dimes v. Grand Junction Canal Proprietors (1852), which involved an action between Dimes, a local landowner, and the proprietors of the Grand Junction Canal, in which the Lord Chancellor, Lord Cottenham, had affirmed decrees made to the proprietors. However, it was discovered by Dimes that Lord Cottenham in fact owned several pounds worth of shares in the Grand Junction Canal. This eventually led to the judge being disqualified from deciding the case. There was no inquiry as to whether a reasonable person would consider Lord Cottenham to be biased, or as to the circumstances which led Lord Cottenham to hear the case.
In certain limited situations, bias can also be imputed when the decision-maker's interest in the decision is not pecuniary but personal. This was established in the unprecedented case of R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) (1999). In an appeal to the House of Lords, the Crown Prosecution Service sought to overturn a quashing order made by the Divisional Court regarding extradition warrants made against the ex-Chilean dictator, Senator Augusto Pinochet. Amnesty International (AI) was given leave to intervene in the proceedings. However, one of the judges of the case, Lord Hoffmann, was a director and chairperson of Amnesty International Charity Ltd. (AICL), a company under the control of AI. He was eventually disqualified from the case and the outcome of the proceedings set aside. The House of Lords held that the close connection between AICL and AI presented Lord Hoffmann with an interest in the outcome of the litigation. Even though it was non-pecuniary, the Law Lordstook the view that the interest was sufficient to warrant Lord Hoffmann's automatic disqualification from hearing the case. In Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. (1999), the Court of Appeal warned against any further extension of the automatic disqualification rule, "unless plainly required to give effect to the important underlying principles upon which the rule is based". Apparent bias
Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its outcome, but through his or her conduct or behaviour gives rise to a suspicion that he or she is not impartial. An issue that has arisen is the degree of suspicion which would provide the grounds on which a decision should be set aside for apparent bias. Currently, cases from various jurisdictions apply two different tests: "real likelihood of bias" and "reasonable suspicion of bias". The real likelihood test centres on whether the facts, as assessed by the court, give rise to a real likelihood of bias. In R. v. Gough (1993), the House of Lords chose to state the test in terms of a "real danger of bias", and emphasized that the test was concerned with the possibility, not probability, of bias. Lord Goff of Chievely also stated that "the court should look at the matter through the eyes of a reasonable man, because the...
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