Role of a Judge: When to Recuse?

Plato recounts Socrates’ description that “four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially”. The impartiality and independence of the judiciary is an age-old discussion, yet the parameters remain indistinct.

Partiality is where the judge has an ‘interest’ or ‘preconception’ that affects his impartiality. Imperfect impartiality is accepted and expected since “judges are but men, and are swayed like other men by vehement prejudices”. The key question is “how much partiality can be tolerated before rule of law objectives are thwarted to an unacceptable degree?”

It is notable that when the law requires impartiality from the judiciary, it does so while being cognisant of the inherent bias that exists in all humans. The expectation of judges is not to be devoid of internal prejudice but to set aside their bias whenever they don the robes, to enable the proper discharge of their duties. As Sir Matthew Hale said, “in the execution of justice, I carefully lay aside my own passions, and not give way to them however provoked”. 

Imperfect impartiality accepts that the quest of “remaining entirely neutral while assessing the persuasiveness of one argument against another is a near-impossible task for a human”.

Imperfect Impartiality 

Imperfect impartiality accepts that the quest of “remaining entirely neutral while assessing the persuasiveness of one argument against another is a near-impossible task for a human”. Despite that, “impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made”. It is widely codified across jurisdictions that “any judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”. 

Both the U.K. and India have adopted the “real danger” or “reasonable suspicion” approach, summarised in R v. Gough (1993) as “whether there was such a degree of possibility of bias on the part of the tribunal that the court will not allow the decision to stand”. In the U.K. the test for impartiality, expounded in Porter v. Magill (2002), is “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. 

The Supreme Court of India in Indore Development Authority v. Manohar Lal (2019) held that “the ultimate test is that it is for the Judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity with whatever intellectual capacity at his command and he is not prejudiced by any fact or law and is able to take an independent view". In a comparable vein, the measure in the U.S. is “where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the [judge] could fairly discharge his duties". 

A political bias covers both an external interest “that [is] situated at the intersection between judicial impartiality and judicial independence”, and an internal interest that “relates to ideological zeal”.

It is helpful to consider the various forms in which impartiality manifests to better determine which instances call for disqualification. 

There are different types of impartiality: either the judge has an ‘interest’ (for instance, financial, political or national, and relational interest), or they have a ‘preconception’ (for instance, against a party, race or country, or on the outcome of a case). 

Since a judge is duty-bound not to be influenced by such impartiality and decide a case solely on merits, it is axiomatic that when a judge is unable to separate his interests or preconceptions from the decision’s outcome, he should recuse himself or be disqualified ( depending on the jurisdiction). 

This is premised on the famous opinion delivered by Lord Hewart CJ in R v. Sussex (1924) that “justice should not only be done, but should manifestly and undoubtedly be seen as done”. 

The question then is: when does a bias necessitate such recusal of disqualification? 

In practice, when to recuse?  

“Called upon to discharge the duties of the Office without fear or favour, affection or ill-will, it is only desirable, if not proper, that a Judge, for any unavoidable reason like some pecuniary interest, affinity or adversity with the parties in the case, direct or indirect interest in the outcome of the litigation, family directly involved in litigation on the same issue elsewhere, the Judge being aware that he or someone in his immediate family has an interest, financial or otherwise that could have a substantial bearing as a consequence of the decision in the litigation, to recuse himself from the adjudication of a particular matter”. 

• The Resolutions of Sir Mathew Hale, Tom Bingham, Rule of Law 

Financial interest 

“To abhor all private Solicitations, of what kind soever, and by whom soever, in matters Depending”

• The Resolutions of Sir Mathew Hale, Tom Bingham, Rule of Law 

The presence of certain types of interest are definitive in concluding that a judge is no longer “untouched by avarice” and is therefore unable to impartially discharge his duty. In cases where the judge has “a material of financial interest” in the case, whether it is through a bribe or a future gain, it is settled law that he should recuse himself. 

The Guidance to Judicial Misconduct, 2013 for the judiciary of England and Wales expounds that “if a judge, or to the knowledge of the judge, a member of the judge’s family has any significant financial interest in the outcome of the case that will plainly disqualify a judge from hearing the case”. The impropriety of “a judge who abuses his office for personal gain by taking bribes or accepting favours” necessitates recusal. 

A financial interest in the sanctioning of a plan or the removal of a director is not the same as a bribe and other benefits. However, it is treated similarly. Consequently, in (most) cases of financial interest, “the fact of the interest alone is sufficient” to result in disqualification and does not need to be assessed by the standard of a fair-minded reasonable man. 

The Supreme Court of India adopted a similar approach in Supreme Court Advocates-on-Record Association v UOI (2015), where a five-judge Constitution Bench, after relying on precedents across common law, held that “in cases where the Judge has a pecuniary interest in the outcome of the case, his disqualification is automatic”. 

In an international setting, political bias is significantly amplified because of the national bias among members of an international court.

Relational interest  

“To friend, foe, kinsman showing equal grace. Untouched by avarice, in virtue sound”

• Shudraka, The Little Clay Cart, Harvard Oriental Series (2009)

Ideally, the law expects judges to be impartial, however, the perils of a judge deciding a case improperly in favour of a social acquaintance are well-known and generally form grounds for recusal.

In the U.K. there are detailed rules regulating ‘personal relationships’ and when they can lead to biases. Locabail (UK) Ltd. v Bayfield Properties Ltd. (2000) provides the authoritative guidance on relevant relationships that could influence a judge’s decision-making and when they should result in disqualification or recusal. In addition, the Guidance to Judicial Misconduct delimits certain rules such as when a party is a close family member or business partner, where a judge shares a personal friendship with or animosity towards a party, or where the counsel has a personal relationship with the judge. 

This does not, however, extend to an interest that may be held by a spouse, or partner, unless “the link [is] so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the judge themselves”. This position adopted in the U.K. is similar (albeit slightly broader) to the one adopted in the U.S., where federal statutory law clearly identifies instances in which the judge should be disqualified or recuse himself – “the judge or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person – is a party, the lawyer, has a substantial interest in the outcome of the case or is likely to be a material witness in the case”.

Political or National Bias 

“I will do right to all manner of people after the laws and usages of this Realm, without fear or favour, affection or ill-will”

• The Resolutions of Sir Mathew Hale, Tom Bingham, Rule of Law

A political bias covers both an external interest “that [is] situated at the intersection between judicial impartiality and judicial independence”, and an internal interest that “relates to ideological zeal”. 

The formation of a predetermined view on the outcome of a case before or during the course of a trial is unacceptable, irrespective of whether the prejudgment is formulated before the trial or, as a result of premature adjudication, during the trial.

In cases involving an external political interest, impartiality is quite easily compromised when the future of a judges’ political and/or legal career can be jeopardized by others that have an interest in the case. This is especially relevant since the independence of the judiciary, disconnected from influence or manipulation from any other body or person, is sacrosanct and should not be compromised under any circumstances. 

The UN Principles state, “the independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary". 

The US Supreme Court in Canon 1 underscores that “a justice should uphold the integrity and independence of the judiciary”, whereas U.K.’s Guide to Judicial Conduct eloquently emphasises the inviolability of judicial independence: 

“Judicial independence is sometimes mistakenly perceived as a privilege enjoyed by judges, whereas it is in fact a cornerstone of our system of government in a democratic society and a safeguard of the freedom and rights of the citizen under the rule of law. The judiciary, whether viewed as an entity or by its individual membership, is and must be seen to be, independent of the legislative and executive arms of government. The relationship between the judiciary and the other arms should be one of mutual respect, each recognizing the proper role of the others. Judges should always take care that their conduct, official or private, does not undermine their institutional or individual independence, or the public appearance of independence". 

In an international setting, political bias is significantly amplified because of the national bias among members of an international court. At the time of the Tokyo Trials, there were concerns that international judges might be inclined to determine cases according to the wishes of their national governments, or aligned with the political interests of their countries. 

Critics continue to argue that strictures imposed on judges by the rules of international law have not been able to completely overcome the national prejudice that domestic judges carry with them to an international bench.

An internal bias relates to “the internal ideological predilections” that compromise the impartiality of a judge and resultantly deliver skewed “rulings to implement their own political agendas”. This is less problematic in relation to impartial decision-making as it is believed that judges are able to set aside their political views when adjudicating a matter (or else the U.S. would not have a judiciary!).

Cognitive bias

“That I be not biased with compassion to the poor, or favour to the rich in point of justice”

• Sir Matthew Hale, List of Resolutions, cited in Bingham T, The Rule of Law, Penguin (2010) 

Apart from external interests certain preconceptions can exist which are subconscious or less apparent. 

Two prevailing biases are the confirmation bias and conjunctive fallacy. Confirmation bias theorises that when a person has a “hypothesis about a given issue, they tend to favour information that corresponds with their prior beliefs and disregard evidence pointing to the contrary”. 

Various studies have confirmed this. The famous capital punishment study in the 1970s confirmed almost unanimously that people who favoured capital punishment picked certain studies and those who were against capital punishment, picked the remainder. 

In another study, a murder case was reviewed by judges and lawyers where they were then asked to sequentially prioritise 20 pieces of information. Half the participants were given information about an additional suspect. All participants listed the information in a similar order and all of them found the first suspect guilty; every participant disregarded the possibility of another suspect. 

Confirmation bias thus poses a particularly concerning problem for impartiality because it subtly perpetuates other preconceptions that are inherent in all people, including judges.

Predetermined View on the Outcome 

“That I suffer not myself to be prepossessed with any judgement at all, till the whole business and both parties be heard".

• Lord Campbell, The Lives of the Chief Justices of England (1881)

This discussion, however, remains incomplete without a review of the most unacceptable, unpalatable, and unjust form of partiality – the “premature formation of a concluded view”. 

It is the cornerstone of the rule of law to reserve judgment till a trial is concluded. In Steadman-Byrne v. Amjad (2007), the fact that a judge made comments to both counsels on his near decided view before the defence had presented their evidence was clear grounds for his disqualification as it “demonstrated the premature formation of a concluded view” that “crossed the line between what was tolerable and what was impermissible”. 

In the second case, Re Q (2014), the judge overseeing a case management hearing, which was held “several months before the final hearing” made clear his views on the case and the likely decision. He was subsequently disqualified because he “had prematurely formed a concluded view about the outcome of the case”. 

Similarly, the Supreme Court of India in State of West Bengal v. Shivananda Pathak (1998) confirmed that a judge who has “prejudged facts specifically relating to a party” should recuse himself.   

The formation of a predetermined view on the outcome of a case before or during the course of a trial is unacceptable, irrespective of whether the prejudgment is formulated before the trial or, as a result of premature adjudication, during the trial. The law has absolute intolerance for both, and both thus result in the immediate disqualification of a judge. 

This principle is widely enshrined across most legal jurisdictions, underpinned once again by Sir Matthew Hale’s rule “that I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard".

What is Impartial Enough? 

Certain types of partiality are typically incurable, and are thereby grounds for recusal or disqualification for a judge because they prevent him from properly administering justice. These include having a financial interest in the case, possessing a sufficiently close relational interest to a party or counsel, or an external political interest, which challenges both the impartiality and the independence of the judiciary. 

Having a premature view on the outcome of a case is perhaps the most insidious type. However, there are other interests, such as personal or cultural views, from which the law believes a judge may adequately disengage so as to prevent it from having any material influence on his decision-making. 

Finally, there are biases, which are largely inherent and reside in the subconscious. This truism was succinctly stated in a speech by Robert Ingersoll, the great agnostic: “[W]e must remember that we have to make judges out of men, and that by being made judges their prejudices are not diminished and their intelligence is not increased”.

Maya Nirula is an international lawyer with multi-jurisdictional experience working on cross-border issues relating to sustainability, business and human rights, and environmental law. The views are personal.

Courtesy: The Leaflet