Judicial bias and how to recuse a judge who is biased

In this article we provide invaluable insight as to how to deal with judicial bias and how to successfully recuse a judge (disqualify a judge) who is perceived to, or has compromised judicial impartiality. Judicial bias, judicial disqualification, recuse judge, recusal application, biased judge, recuse a judge

The widespread problem in lack of judicial independence

The heads of the English judiciary constantly harp on about how wonderful, independent and free from corruption the UK judiciary are, yet their assertions are simply untrue, and the mainstream propaganda machines are very quick to broadcast their messages, without establishing the truth.

Judicial bias through third party influence, whether by political, masonic connections or by status of one party does happen and the problem is rampant throughout the UK.

The legal profession is based upon and is enshrined in freemasonry. Freemasonry means favouring one’s fellow brethren, which leads to counsel who are on the square gaining preferential treatment in courts. This form of judicial bias is more common than most realise.

There’s culture of cover up and impunity provided to any public officials with directions coming from the top, which in itself compromises judicial decision making.

Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. It is of paramount importance in the public interest that the rule of law is maintained and that means an independent justice system, free from interference from outside, free from corruption, free from influence, that is respected and treated as independent by those in Government and those in Parliament, and that ultimately, the public has confidence in the ability of the courts and the responsibility of the courts to take
decisions according to their best judgment about what the law of the land requires. Judicial bias, judicial disqualification, recuse judge, recusal application, biased judge

All officers under the Crown have a legal duty conferred in S.3 of the Constitutional Reform Act 2005 to “maintain the continued independence of the judiciary” and Dominic Raab, in office of Lord Chancellor has a legal duty he swore under oath to “defend the independence of the judiciary”. After the sheer volume of enquiries we receive in relation to allegations of judicial bias, is it really happening we ask?

The role of civil judge is that of an independent referee or an umpire in a contest, not necessarily a seeker after truth. As Lord Wilberforce put it in the 1983 House of Lords Air Canada case, Wilberforce LJ said: Judicial bias, judicial disqualification, recuse judge, recusal application, biased judge, recuse a judge.

“In a contest purely between one litigant and another, … the task of the court is to do, and be seen to be doing, justice between the parties … .There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and the law, justice will have been fairly done”.

Neuberger LJ, when giving a speech on judicial ethics to the Singapore Panel on judicial dilemmas and ethics put it this way:

“…sometimes characterised as accusatorial, with two (or sometimes more than two) parties battling it out like two football teams or two tennis players, and the judge acting as a disinterested, detached referee or umpire, only getting involved for two purposes – (i) in order to resolve procedural disputes before or during the trial, and (ii) in order to decide who wins on the basis of an assessment of the evidence which has been adduced and the legal arguments which have been advanced. In criminal cases, the civilian system is very different, with the judge, as a juge d’instruction, in many ways leading the investigation, and therefore being much more of a searcher after truth, a sort of independent player as much as a referee or umpire. And even in civil cases, the civilian judge applies a code, which in an idealistic way is meant to provide the right answer, rather than following and developing judge-made law as in the common law system”.

What is judicial bias?

Judicial bias, broadly speaking, is a wide definition covering all and any conduct which is perceived to, or does compromise judicial impartiality.

In any battle between two sides, there is always a winner and a loser and whilst the loser is bound to feel a sense of injustice, allegations of bias really should not be made unless there are established and proper grounds to allege that the decision was founded by favour in one way or another.

Actual bias in judicial decision making

Judicial bias comes in two forms, the first is actual bias, where the judge has some form of vested interest in the case. A vested interest may be pecuniary, proprietary or indeed, an interest caused by third party influence. Judicial bias, judicial disqualification, recuse judge, recusal application, biased judge

Perceived / apparent bias in judicial decision making

The second form is perceived / apparent bias, where there is reasonable suspicion and grounds to allege that a judge is in some way compromised or biased toward a party in the case.

Law is in place to protect the people from judicial bias and malicious acts by judges

The one statutory law designed to regulate conduct of the judiciary is built into the judicial oath of office which every judge has to swear by. Judges can only occupy office whilst on good behaviour.

If a judge breaches one’s oath, then he or she has broken the law and therefore they are disqualified from office and have no lawful standing to continue presiding as judges.

This law, conferred in the Promissory Oaths Act of 1868 is designed to protect the public from judicial tyranny and particularly, against judicial bias and ill-will toward any party in proceedings.

The issue is that in these times, nobody is enforcing it. We have unconstitutional judicial tyrants who were long disqualified, continuing in judicial office as imposters when in law, they have no standing.

One must naturally question, if the ones at the very top of the governance and the judiciary behave lawlessly acting maliciously with favour and ill-will, what are all the ones underneath them doing?

If you can prove, with hard evidence, that a judge knew the statement he was making was blatantly false and he made that statement to assist the other side in furtherance of a wrongdoing or in detriment to the proper administration of justice, he has violated the rules of natural justice, as well as his oath.

If a judge acts in a way so as to deprive one party of a right in law of which they are entitled to favour the other side’s case where advantage was not gained but for such error of law, that is clear evidence of judicial bias. It could be actual bias if proven to be deliberate, or would otherwise present a ground that bias is perceived.

A core principle of the rules of natural justice is that there must be no bias (nemo judex in propria causa), meaning no one shall be judge of his own cause. Any violation of the rules of natural justice renders the decision a nullity. First however, one must establish bias to be able to prove it.

Depriving a party of their right to equality before the law is undoubtedly acting with ill-will.

In our latest article we provide a prime example and analysis of serious and proven judicial bias by political interference on the part of Sir Geoffrey Vos, Master of the Rolls and head of civil justice for England and Wales.

The correct test in establishing a case for recusal on the grounds of judicial bias

The correct test to apply in consideration of grounds for recusal (asking a judge to disqualify and remove himself from a case over which he is presiding) is the test adopted by the House of Lords in Porter v Magill [2001] UKHL 67 :

“whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased?“

The test was established from a plaintiff’s argument about the fairness of the conduct of the proceedings by the auditor and the conduct of the Divisional Court when it dismissed their appeal relating to the auditor’s public statement on 13 January 1994. It was said that conduct on this occasion gave rise to the appearance of bias which could only be cured in the Divisional Court by quashing his certificate. Judicial bias, judicial disqualification, recuse judge, recusal application, biased judge

The tribunal must be free from personal prejudice or judicial bias

Paragraph 88 of the judgment addressed the two aspects in relation to issues of impartiality:

“…there are two aspects to this requirement. First, the tribunal must be subjectively free from personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and objective impartiality are closely linked…”

Coming to the conclusion needs to be outside perspective objectively based on actual evidence or facts

Wherever possible obtain a transcript of the proceeding as quickly as you can. You need to adduce hard evidence to support your application for recusal.

We have explained the test that needs to be applied, it’s a case of being able to prove that there is a real possibility from an outsider’s perspective looking in at the circumstances, that the informed lay observer would conclude that there is judicial bias. Only then can a case be made out to recuse the judge.

Avoid the litigation and approach it softly. First write to the judge, setting out the grounds and asking him / her to recuse from the case. It may be that they concede, saving you the aggravation of making the application. If not, you can adduce the letter as supporting evidence to at least show you tried.

The issue is, which seems in many ways to conflict with the principle of nemo judex in causa sua (I shall not be a judge of my own cause), is that the process in English courts is that the application to recuse a judge is usually heard by the very same judge you are seeking to recuse. You can however request that the application is heard by a different judge if grounds are made out to do so. It is always worth a try.

How and when to make an application to recuse a judge

We have established the test you need to perform and the evidence you must adduce before you can recuse for judicial bias, the next stage is the application itself. Keep it as concise as possible, brutal focus is the way forward. Judicial bias, judicial disqualification, recuse judge, recusal application, biased judge

In Miley v Friends Life Ltd | [2017] EWHC 1583 (QB), the Court set out the mechanics and considerations behind making of a recusal application. Turner J’s starting position was that of the overriding objective, CPR 1.3 Practice Direction 23A paragraph 2.7, which provides that:

“Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it”.

It is therefore established that any application to recuse a judge must be made promptly once grounds are made out for doing so.

In Miley the Defendant sought to recuse the judge on two main grounds:

• Perceived pre-determination of the fact that the Claimant’s misrepresentations were innocent
• An additional point had been raised by the judge that the Claimant had not brought into the mix

In our view, those were not good grounds for establishing a basis for recusal. A judge can freely decide incorrectly and he can correctly, that does not mean he is biased.

Ignoring one side’s evidence and focusing only on the others would present grounds for recusal, as would shutting one side down and only hearing from the other side.

Likewise, where there is an indisputable error in law or failure to take into account a fundamental fact in detriment to one side’s case could also make out proper grounds, but it is first necessary before contemplating an application to recuse a judge for perceived or actual bias, that the evidence and allegations are properly made out of the application will simply fail.

Maximise your chance of a successful outcome with Intelligence UK’s expert legal consultancy and investigation services. We will ensure that your recusal application is off on the correct footing before you start. Our comprehensive investigation and sanity checking avoids wasted costs, ensuring all the right parts are advanced, whilst the wrong arguments are dropped. Contact us today to enquire about our judicial disqualification and recusal investigation services.

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