Judicial Independence and Objective Bias

The Supreme Court has emphasised the significance of the Bangalore Principles of Judicial Conduct in assessing a claim of objective bias against a judge.

In O'Driscoll (a minor) v Hurley [2016] IESC 32, the plaintiff appealed to the Court of Appeal arguing that the amount of damages awarded was inadequate. At the appeal hearing, the plaintiff applied to have one of the appeal judges, Ms Justice Irvine, recuse herself on the grounds of objective bias. She was said to have chaired and addressed a “private conference” run as a promotion by the firm of solicitors on record for the State Claims Agency.

The test for objective or perceived bias is whether a reasonable person would have a reasonable apprehension that there would not be a fair trial from an impartial judge. The court considered the Bangalore Principles as universal norms of universal application in relation to such issues as bias. The Bangalore Principles require that judges ensure that their conduct maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.

Paragraph 4.11 of the Bangalore Principles provides that judges may contribute to legal and professional education by delivering lectures, participating in conferences and seminars, judging student training hearings and acting as an examiner. Dunne J endorsed this commentary, noting that judges on their appointment do not stop developing their knowledge of the law and that the practice of law necessarily involves openness to the concept of lifelong learning.

The Supreme Court concluded that Ms Justice Irvine was acting appropriately in furthering the knowledge of those involved as to the work of the working group she chaired, given her particular knowledge and familiarity with the issues. The conference was "private" only in the sense that it was not open to the general public, but stakeholders on all sides of the issues were invited. The fact that the conference was hosted by the firm who acted for the defendants in the particular case did not affect this conclusion.

Paragraph 2.5 of the Bangalore Principles provides that:

 “A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where:

• the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;
• the judge previously served as a lawyer or was a material witness in the matter in controversy; or
• the judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy;

provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.”

The Supreme Court noted that applications to judges to recuse themselves have become commonplace, but that recusal out of excessive caution or deference based on insubstantial objections would be intolerable and risk profound injustice. Judges are entitled to participate in public discourse and should support legal education and development judiciously and apolitically. However, they must defend and assert their obligation to perform their functions when they are asked to recuse.