Judicial Bias? - an unpleasant taste
The question of Judicial Bias has recently been raised in discussions concerning the Chairman of the Commission of Enquiry into the events in West Kingston on the weekend of July 7th 2001. It is clear from the discussions, that few have bothered to research the matter, as there seems to be little understanding of the essence of the legal principles involved. A cursory glance will reveal
that there is a vast difference in law, between the ‘appearance of possible bias ’ and ‘ the actual existence of bias’, which is critical, as only the former (i.e ' the appearance of bias’) is required to trigger removal. Bias is a somewhat nebulous concept, almost impossible to ever prove in most cases, hence the stringent requirement. For how do you prove that which is in someone’s mind?
The issue has come before the Courts in various jurisdictions on many occasions and they are no significant differences between a Tribunal charged with coming to findings of fact and a Court. Consequently, although some flexibility must be shown towards administrative tribunals and Commissions on matters of evidence, insofar as the concept of impartiality is concerned, the tests, considerations and principles are substantially quite similar. Would an informed person have a reasonable apprehension of bias in the particular circumstances, though no actual bias could be shown?
The matter came up for consideration IN RE PINOCHET delivered 17th December 1998; [1998] All E.R 897. Lord Browne-Wilkinson delivered the opinion of the Lords [Lord Goff of Chieveley, Lord Nolan, Lord Hope of Craighead and Lord Hutton]. A few quotations provide the Court’s opinion.
“My Lords,
Introduction
This petition has been brought by Senator Pinochet to set aside an order made by your Lordships on 25 November 1998. It is said that the links between one of the members of the Appellate Committee who heard the appeal, Lord Hoffmann, and Amnesty International ("AI") were such as to give the appearance that he might have been biased against Senator Pinochet. ”...
“The sole ground relied upon was that Lord Hoffmann's links with AI were such as to give the appearance of possible bias. It is important to stress that Senator Pinochet makes no allegation of actual bias against Lord Hoffmann; his claim is based on the requirement that justice should be seen to be done as well as actually being done. There is no allegation that any other member of the Committee has fallen short in the performance of his judicial duties. ”
“ Apparent bias
As I have said, Senator Pinochet does not allege that Lord Hoffmann was in fact biased. The contention is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say, it is alleged that there is an appearance of bias not actual bias....
The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behavior may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefitting, but providing a benefit for another by failing to be impartial:”
The Court then went on to comment on the:
“test of apparent bias laid down in Reg. v. Gough("is there in the view of the Court a real danger that the judge was biased?") needs to be reviewed in the light of subsequent decisions. Decisions in Canada, Australia and New Zealand have either refused to apply the test in Reg. v. Gough, or modified it so as to make the relevant test the question whether the events in question give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the judge was not impartial.”
The test has evolved from the UK standard for bias as one in which ‘having regard to the relevant circumstances, there was a real danger of bias on the part of the relevant member of the tribunal’; to a test in some Commonwealth jurisdictions (and I suggest Jamaica is or should be one such), that is:
“whether the events in question could give rise to a reasonable apprehension or suspicion on the part of fair-minded and informed members of the public that the judge would not be impartial.”
This does not mean that the judge must necessarily be biased as a consequence of the known events, but that the was a risk that a reasonable person could think there might be the appearance of bias in the particular circumstances.
In which case appearances not ‘actuals’ are very critical. If what Michael Sylvester stated in his notarized declaration is true, then Justice Isaac ought to recuse himself and take no further part in the proceedings. He has (on the Breakfast Club [BC]) denied the allegations categorically. Presented with that, Mr Sylvester added more ‘ammo’. He has now alleged (on the BC) that more recently Mr Justice Isaac was trying to get him to treat with litigation he had brought against the Chief Justice of Grenada and a High Court Judge, in a particular manor, favorable to the Defendants. For example by a withdrawal of the suits. By itself, that may not be objectionable, as Mr Justice Isaac as a human being has every right to use his influence as he wishes. In the current context however, it is a serious allegation, in particular taken against the background of firstly, previous accusations of improper and inappropriate meetings involving Mr Justice Isaac in the Nazi immigration cases for which he has been heavily criticized and secondly the implicit suggestion that he may tend to use influence inappropriately, which influence may itself also tend in a particular direction.
By way of explanation and to put the matter in context, some explanation has to be provided of the Nazi Immigration cases. The cases concerned inappropriate meetings between Justice Isaac and a Mr Ted Thompson of the Justice Department in Canada. Thomson wanted certain Immigration cases in the Federal Court speeded up and there was a threat or the possibility that if the prosecutions were not speeded up, the cases would be referred to the Canadian Supreme Court.
This was not desirable as the Supreme Court was thought, not to be particularly sympathetic to the Justice Department’s cause. The Defense Attorneys in the cases, were not advised of the meetings(between Isaac and Thompson) and the Judge hearing the matters while agreeing to speed up the cases(after meeting with Isaac), eventually had to recuse himself. A second Judge also refused to hear the matter on the ground of a fear of interference. The Defence Attorneys sought to prevent the particular hearing and the Supreme Court had to rule on the issue. The matter was also investigated by a Judge appointed by the Ministry of Justice and by a Disciplinary Tribunal of the Federal Court upon a complaint filed. It subsequently appears that there were strenuous efforts to limit disclosure of the extent of the meetings. A rebuke was delivered in all cases essentially agreeing that the meetings were improper and inappropriate but in the case of the Supreme Court allowing the case to go on. The investigations and reports have been described as a ‘whitewash’, and the more informed view appears to be that expressed by a Mr. Jack Ramsay in the House on Friday, September 26, 1997: HANSARD
“Ted Thompson and Chief Justice Isaac committed one of the most serious breaches of judicial interference ever experienced in this country. The true facts surrounding this enormous violation have been ignored and some say covered up and have just been revealed recently.
In the words of defence counsel quoting Lord Denning, ‘Had this occurred in England, it would have brought down the government’. But not in Canada because in Canada political interference in the judicial process has become a way of life and the hallmark of the Liberal government.”
Does Mr Justice Isaac harbour views of Edward Seaga as a political leader which accord with Mr Sylvester’s Notarized Declaration? In particular, that he would not want to see him, Seaga in Jamaica House? Is Mr Isaac on friendly terms with the persons suggested in the declaration?
On the other hand, is Mr Sylvester schizophrenic ? Sylvester was head of the Law Faculty in Jamaica and taught at the NMLS and at the Faculty of Law at Cave Hill Barbados. His alleged deterioration has to be explained. The BC also suggested by innuendo in the form of questioning that he, Sylvester, was on ‘friendly terms with alcohol’ or had been paid to do the declaration. This matter of allegation and counter allegation is troubling to say the least, particularly when the view of the public is not to expect anything from the process. It was therefore unfortunate that without any evidence a line of question was pursued in relation to Justice Isaac, the intent of which it appears, was to lead to the idea that Mr Sylvester must have been bribed to swear the declaration and that he may have left Grenada to Tobago as he was a ‘bankrupt’ and was ‘on friendly terms with alcohol’. I was surprised to find that Mr Sylvester represents Mr Hugh Wildman an Attorney and prosecutor, in Litigation in Grenada and the Prime Minister and Minister of National Security of Grenada, Keith Mitchell?
So far we have seen the Police put up a stout defence, as they should, but in my view full of holes and most civilian witnesses seem scared to death to talk or unwilling to.
There is also the local case on point Irving v Wilmot ‘Mutty’ Perkins. This case was a libel suit brought by Mr Irving (a Resident Magistrate) as a result of Mutty’s caustic comments concerning Mr Irving. The matter, came before Mr. Justice Ellis in the Supreme Court for hearing. Many years before, Mr Ellis (as he then was- at the Attorney General’s Department ), wrote an article which appeared in a newspaper. The article had commentary on one of Mr Perkins’s usual sharp and critical pieces concerning the Judiciary, words to the effect, that “viperous vermin were gnawing at the entrails of the judiciary” etcetera. A reference to Perkins of whom he did not have a good opinion; well not in relation to that particular matter at that time. Mr Ellis was entitled to his opinion and no doubt many shared it then and still do today. So too Mr Perkins was entitled to his opinion , as critical and unpopular as it was and from all appearances, still is, in certain quarters.
Many years later (I think over 20 years), Mr Ellis, now Mr Justice Ellis a learned High Court Judge, has Perkins as a party in the case before him. Mr Perkins or as was more likely to be the case, his Attorney was fearful that Perkins would not score many runs on that wicket. An application was made to have Mr Justice Ellis recuse himself, which he refused to accede to, it no doubt being his view that he is a fair minded man. A view I might add with which I have no difficulty. The Court of Appeal however, saw the danger and made a wise ruling, prevented the hearing, thereby permitting the matter to be put before some other judge in the future, who on the face of it had no particularly strong and known public view on Mr Perkins and or his views.
This does not mean Mr Justice Ellis is not a good judge; far from it. It simply means that some other Judge ought to hear Mr Perkin’s case, on the simple ground that there would be the appearance of bias, if he was to hear the case, though from my understanding, no actual bias can or was shown. Indeed for you to show actual bias exists, requires the clearest of cases in which there is a virtual admission or behavior so clearly one sided, that it could lead to no other conclusion. In the real world, the available evidence never rises to that level in most situations. There is rarely ever a smoking gun.
The cases brings to mind the two broad perceptions regarding Judges and their place and role in society. Firstly there is the rather benevolent view of judges, who are to be treated by us governed folk, as having cast aside all prejudices when appointed and who should be expected to act independently. You have to trust somebody at some stage under our constitutional arrangements it is said?
The Second view is that under the current appointment system, Judges are promoted from the Civil Service as a result of which it is felt Judges are pro ‘establishment’. This is related to their background and they tend to have ‘establishment’ values. As a consequence, it is felt their notion of the public interest will invariably lean towards the ‘establishment’. For example there is a feeling that Police evidence will generally be accepted freely, although in law their position in court is no different then any other witness and the general reputation of the force actually leaves much to be desired at this time.
At the end of the day Agana Barrett’s goalers and Messrs Vassell and Forbes who also suffocated in the cell at Constant Spring, have not been punished and such damages as were awarded, a disgrace, redeemed perhaps by the dissenting judgement of Justice of Appeal Henderson Downer, who felt Agana Barrett’s mother should have been able to buy a modest house from any award made.
It is a fact that Judges are obliged to declare any interest in a case, but there is no ‘register of interests’of Judges, and the Hoffman case highlights the weaknesses inherent in the system. The Judge may not even be aware of the problem and in most cases of bias, such as Pinochet and Gough and Microsoft (below), the facts were discovered by the party complaining after or during the hearing.
Of some interest is a line of reasoning in a Canadian case Marchand v Marchand Court of Appeal for Ontario DATE:2000 11 27 in which a party sought to argue on appeal:
“that, taken cumulatively, a number of evidentiary rulings by the trial judge as well as the trial judge's uneven application of his evidentiary rulings (a) denied the appellants the opportunity fairly to present their case or, (b) created a reasonable apprehension of bias on the part of the trial judge. In their factum, the appellants submit that the impugned rulings "distorted the trial process"; "impaired any reasonable attempt to achieve justice"; and "negated the Marchands' right to present their case fully.”
The facts of the Marchand case are not relevant to the analysis. After hearing the submissions, the Court of Appeal ruled that in the particular case, it was:
“satisfied that a reasonably informed person, observing the trial judge's conduct during the entire trial and reading his reasons for judgment, would have no difficulty in concluding that he remained impartial and that he demonstrated no actual or apprehended bias.”
Which is not to say one could not succeed in the argument, but that the appellant failed in that particular case to establish the grounds.
Perhaps the most telling case concerning this matter of bias is the Microsoft case in the U.S.A.:
The key element in Microsoft's successful appeal, was the alleged bias of District Judge Thomas Penfield Jackson, who originally found against Microsoft. In June 2000, Judge Jackson pronounced Microsoft a monopoly, and ordered that it should be broken up.My understanding is that the Appeal Court was of the view that published remarks by Judge Jackson pointed strongly towards the existence of judicial bias.
Judge Jackson had given a series of interviews to the New York Times and the New Yorker magazine in the months leading up to his final judgement. The interviews were published after his judgement was released. The Appeal Court and the Appellant’s Counsel made the point that the interviews clearly show that the judge regarded Microsoft with distaste while the original case was proceeding. The type of comments which led to this conclusion are interesting. Some of the comments appear below:
a “I think [Mr Gates] has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses”
b “Were the Japanese allowed to propose terms of their surrender?”.... when asked whether Microsoft would be allowed to negotiate the terms of the break-up.
c “...who never figure out that they shouldn't be saying certain things on the phone”... Judge Jackson likening Microsoft's failure to prevent the emergence of incriminating documents to drug traffickers.
d “Bill Gates is an ingenious engineer, but I don't think he is that adept at business ethics”
e “I've often said to colleagues that Gates would be better off if he had finished Harvard.”
f “I hope I've got Microsoft's attention.” Referring to his split ruling, this comment came after repeating an anecdote about a North Carolina mule trainer in the following terms:
“He had a trained mule who could do all kinds of wonderful tricks. One day somebody asked him: 'How do you do it? How do you train the mule to do all these amazing things?' 'Well,' he answered, 'I'll show you.' He took a two-by-four and whopped him upside the head. The mule was reeling and fell to his knees, and the trainer said: 'You just have to get his attention.”
It was however very unfortunate in my view, that Justice Isaac allowed himself on Monday Dec. 1, 2001 to be drawn, by Mr Tony Abrahams into speculation admittedly without any evidence, that he (Sylvester) may have been paid to sign the declaration. It is unfortunate, as the obvious and reasonable inference to be drawn is that this was no doubt orchestrated by the JLP or person(s) or entities who have similar interest in impacting the Tribunal’s Chairman.
Mr Justice Isaac in the telephone discussion on the BC could not understand why the allegation was being made and that this had led him to speculate in his own mind that maybe he (Sylvester) was paid. Unfortunately that very response betrays the very appearance one is concerned with; by itself it must raise serious questions, as did Judge Thomas Penfield Jackson’s interviews which led to the view that he regarded Gates with distaste, resulting in the reversal of the decision by the appeal court.
The response betrays a tendency which, even if not proved, suggests that there may be a ‘jaundiced’ view of the opposition and persons or entities who share similar interest. That is that they would pay someone such as Mr Sylvester to lie in relation to matters concerning him. There was no evidence of this and no basis save for speculation and this ball should have been ‘left outside the off stump’. For it begs the question, is the opposition or Mr Seaga, regarded with distaste by the Commission’s Chairman? Had the retort been that Mr Sylvester is a ‘madman’, no such appearance could be drawn. Bribery is a horse of a different colour.
Indeed the idea of a response on radio before the Commission has concluded its deliberations, doesn’t sit well with me. It has no business on public radio while the proceedings are pending? A high court judge and in my view the Chairman of a Tribunal, should not be parading on the airwaves any response to allegations. Certainly not to speculate that the deponent may have been paid, may have been a bankrupt or may have more than a friendly relationship with alcohol. There is a process and it should be dealt with in that context. Anything less feeds the very appearance that is worrying.
Unfortunately we are not likely to treat it with the seriousness it deserves. In our culture perhaps a bit more latitude will have to be allowed or we will be in breach more often than not? I concede that being a Judge is serious business in a civilized society. The question is just how civilized is Jamaica?
DOJ
December 11, 2001
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