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GREGORY HENRY[*]
The public ought to be able to appreciate judges as people doing a job of great importance to everybody’s well-being. Let them be seen, not as gowned robots, but men [sic], warts and all.[1]
It was in this context that Pinochet’s case came before the House of Lords. This case note will not deal with the questions of extradition law and state immunity arising in the appeal, but only with the issues posed by the composition of the Appellate Committee in the first Pinochet decision.[7]
Pinochet’s legal efforts revolved around an attempt to quash the domestic warrants issued for his arrest. It was the question of his immunity as a former head of state that led him to the House of Lords. By a majority of three to two, the Appeal Committee rejected Pinochet’s claim. Pinochet appealed on the basis that one member of the Committee, Lord Hoffmann, was a Director and Chairperson of Amnesty International Charity Limited (AICL).[9] Amnesty International (AI) had, by this stage, been granted leave to intervene in the appeal.
The chief function of AICL is to allocate funding to carry out charity work by another AI body, Amnesty International Limited (AIL). Work carried out by AIL included a research publication relating to Chile, published in 1993. That report voiced AI’s concerns about ‘past human rights violations against indigenous peoples in Chile and the lack of accountability for those responsible’.
Directors of AICL do not receive any remuneration, nor do they take part in any policy-making decisions of AI. It was noted that Lord Hoffmann was not actually a member of AI or any other body connected with AI.
The House of Lords found that Lord Hoffmann ought to have recused. His failure to do so rendered the decision void, and a new trial was ordered. On the rehearing, the House of Lords again rejected the Senator’s claim for immunity. However, the Court ruled that Pinochet should answer a substantially reduced set of charges.[10] Following the decision, the Home Secretary decided to allow the extradition proceedings to go ahead, which are due to commence later in 1999.
The bias challenge is noteworthy for a number of reasons. First, the reasoning of the House of Lords in this decision represents a radical departure from precedent. It is therefore necessary to consider the potential impact of the case on Australian law, noting particularly the highly controversial context in which the decision was made. Just as importantly, the proceedings invite a reconsideration of the rule against bias, and the basic concept of impartiality. The case implies that Lord Hoffmann ought to have at least disclosed his connections with AI. I will argue that the appearance of non-bias is a relative virtue, and that the failure of legal discourse to recognise this has historically prevented ‘outsiders’ from receiving a ‘fair go’. In my view, it is no longer acceptable to expect judges to be completely disengaged from the real world. By the same token, it is time that judges are recognised for what they predominantly are – as affluent, white, and male, carrying with them a relatively homogenous set of principles, beliefs and ideals. It is important that these natural prejudices receive public recognition, regardless of what they might be, so that our legal system can be developed to accommodate them. It is only once the limited utility of the concept of impartiality is acknowledged that we can begin to consider how a ‘better’ justice might be dispensed.
In cases involving allegations of bias, the courts have traditionally drawn a distinction between pecuniary and non-pecuniary interests. A person with a pecuniary interest in the outcome of a matter is automatically disqualified from determining it.[11] This is so regardless of the size of that interest.[12] The strictness of this approach has been questioned by a number of writers,[13] as well as by the New South Wales Court of Appeal.[14]
Where a non-pecuniary interest is identified, two approaches have emerged. In Australia, the test applied is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case.[15] In England, the House of Lords has explicitly rejected the ‘reasonable suspicion’ test and instead opted for a ‘real danger’ test. For their Lordships the question is whether, having regard to all the circumstances, there is a real danger of bias in the sense that the decision-maker might unfairly regard with favour or disfavour the case of one party to the dispute.[16]
In Pinochet, the House of Lords extended the automatic disqualification principle to a case where a judge was found to have had a non-pecuniary interest. In essence, the Court attributed to Lord Hoffmann the same interest in the proceedings as that of AI. This interest, or ‘cause’, was said to lie in ‘achieving the trial and possible conviction of Senator Pinochet for crimes against humanity’.[17] Lord Browne-Wilkinson held that:
If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a Director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart’s famous dictum is to be observed: it is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.[18]
Lords Nolan and Hutton concurred. Lords Goff of Chievely[19] and Hope of Craighead[20] gave reasons to similar effect. The court’s reasoning is predicated upon the maxim that a man shall not be a judge in his own cause – nemo judex in sua causa. It is supported by general policy considerations, such as the desire to promote confidence in the administration of justice.[21] The case expands the range of cases in which automatic disqualification may be considered. Associating itself strongly with the reasoning in the 1852 case of Dimes v Proprietors of Grand Junction Canal,[22] the decision leaves the well-established distinction between pecuniary and non-pecuniary interests by the wayside. It is replaced instead by a test incorporating vague notions of ‘interests’, ‘causes’, and the ‘overriding public interest’. These terms lend themselves to a relatively broad application. A cynic might therefore be tempted to describe the decision as a poorly disguised attempt at achieving a politically desirable outcome.
It is interesting that in the course of his speech, Lord Hutton referred to comments made by Deane J in the leading Australian case of Webb v R.[23] His Honour there divided the doctrine of disqualification into four categories, the first of which was ‘disqualification by interest, that is to say, where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of bias, partiality or prejudgment’.[24] Relying on this statement, it may seem that the expansion of the automatic disqualification doctrine to nonpecuniary interests could be followed in Australia. In light of the overwhelming authority to the contrary, however, it is doubtful that this will in fact occur. The Full Federal Court has already considered the decision in Pinochet, and remarked that:
It may be that in this country the reasonable suspicion test would lead to the same result as that reached by the House of Lords, without the need to rely on the concept of automatic disqualification by reason of a non-pecuniary interest.[25]
In other words, the automatic disqualification doctrine need not be expanded to provide analogous results. In Dovade Pty Ltd v Westpac Banking Corp, the New South Wales Court of Appeal distinguished Pinochet, and remarked that:
... the inherent structure of the common law is to distinguish between the judge or juror’s direct pecuniary interest in the outcome of the litigation on the one hand and other bases for disqualification such as bias or apprehended bias. The automatic rule of preclusion in the former case does not apply in the latter.[26]
It may be that Pinochet is confined to its own peculiar facts. This is a genuine possibility, particularly given Lord Browne-Wilkinson’s emphasis on the ‘striking and unusual’ nature of the case before him.[27] In his Lordship’s words:
The critical elements are (1) that AI was a party to the appeal; (2) that AI was joined in order to argue for a particular result; (3) the judge was a Director of a charity closely allied to AI and sharing, in this respect, AI’s objects.[28]
We have already seen Australian law in this area depart from its English counterpart. Distinguishing the Pinochet decision would reduce the potential for inconsistency and incoherency in our law. Such an approach would have a sound basis in precedent, and is in any event likely to achieve similar substantive outcomes.
The emphasis on broader policy considerations in Pinochet invites a reconsideration of the principles underlying the rule against bias. These principles are articulated in the oft-quoted adage in R v Sussex Justices; Ex parte McCarthy.[29] Neutrality, and the public and political confidence it inspires, are commonly viewed as essential to the successful and proper operations of the public service, the tribunal system and the judiciary.[30] It is thought that a neutral judge will be able to produce ‘better’ judgments than a biased one. This might be assessed in terms of accuracy of fact finding, the quality of policy formulation and of policy application.[31] A party adversely affected by a decision is also more likely to accept it if she or he trusts the decision maker’s neutrality. As Sir Robert Megarry once observed, the most important person in court is not the judge or the advocate or the witness but the litigant who is going to lose.[32] Aronson & Dyer suggest neutrality reduces enforcement costs.[33]
The vast majority of explanations of the rule focus upon the necessity for ‘public confidence in the administration of justice’. Lord Denning, for example, once said:
Justice must be rooted in confidence; and confidence is destroyed when rightminded people go away thinking: ‘The judge was biased’.[34] The joint judgment in R v Watson; Ex parte Armstrong stated that: It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.[35]
Mason CJ & McHugh J confirmed this in Webb v R:
The premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question.[36]
Where a high profile case is concerned, the stakes are often raised. The Pinochet proceedings provide a good example. The House of Lords was likely to face controversy, no matter how it decided the immunity issue. In these circumstances, it was therefore imperative that at least justice was seen to be done, in order to quell rising international tension. Any suggestion of bias in the matter could have scarred both the House of Lords and the British Government. The dictates of political necessity and international comity cannot be underestimated. In sum, apparent (if not actual) impartiality is legitimately regarded as an important virtue for all decision-makers in our legal and administrative systems, regardless of the relative profile of the case at hand. The effect has been described by Taiwo:
The language of the law is alienating. The architecture of the law is forbidding. The knowledge that the judge is almost superhuman, an oracle of a divinity, of Law, backed by the power of the modern state, can humble the stoutest of humans.[37]
However, the distinction between actual and apparent impartiality is an important one, a distinction all too often lost in an almost disingenuous judicial vernacular.
The traditional picture of the judge has been, as the Law Guardian suggested, as ‘gowned robots’: superhuman conduits through which The Law flows, uncontaminated and uninfluenced by its prophets along the way. Wood states that ‘[j]udges are, quite simply, to apply the law, not their own values.’[38] Implicit in that statement is the suggestion that judges are in fact capable of doing so. Bernard Levin has commented that ‘the only excuse for a judge with opinions is that he refrain from expressing them’.[39] Over time, judges themselves have expressed no apparent difficulty in divorcing themselves from their personal opinions. Shetreet refers to the ‘strong tradition of impartiality and independence [that] compels judges to resist any tendency to decide according to their political prejudices’.[40] Even Professor Griffith concedes that ‘judges have a more or less developed capacity to eliminate their prejudices from the consideration of cases’.[41] This is apparently because judges are by their training and experience able to bring a detached mind to the task at hand.[42] Learned Hand observed, ‘[a judge] must pose as a kind of oracle, voicing the dictates of a vague divinity’.[43]
This apparently innate ability of judges to achieve perfect neutrality has been seriously questioned by writers from all quarters. Former US Supreme Court Justice Benjamin Cardozo wrote:
All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense in James’ phrase of “the total push and pressure of the cosmos”, which, when reasons are nicely balanced, must determine where choice shall fall. In this mental background every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. To that test they are all brought – a form of pleading or an act of parliament, the wrongs of paupers or the rights of princes, a village ordinance or a nation’s charter.[44]
The late Judge Shientag (of the Appellate Division of the New York Supreme Court),[45] Lord Justice Scrutton,47 Chief Justice Nemetz (of the Canadian Supreme Court),[48] and Professor Griffith[49] have expressed similar views, sometimes attracting heavy criticism for doing so.[50] Speaking to a class of law students, US Justice John Marshall Harlan was candid, when he said:
I want to say to you young gentlemen that if we don’t like an act of Congress, we don’t have much trouble to find grounds for declaring it unconstitutional.[51]
In other words, judges are subject to their own values and opinions. However, as Pat O’Shane has noted, judges are not in many ways ‘just like the rest of us’.[52] Judges in our country are white, male, and drawn predominantly from an elite social background. They exist ‘at the pinnacle of one of the most powerful institutions in our society’.[53] They emerge from the Bar, itself overwhelmingly dominated by white males. To assume therefore, that judges are like the rest of us, is just ‘plain nonsense’.[54]
The language used by judges is revealing. Graycar notes:
Every time we use an adjective to describe a woman judge, or a judgment written by a woman, we are implicitly distinguishing her from the norm and reinforcing the underlying assumption that judges are men and judging is a male activity.[55]
Put more graphically, ‘while women are women and blacks are blacks, white men are just “regular people”’.[56] All that has happened is that ‘neutrality’ has been defined as the ‘vantage point of the white male’.[57] The results of this have been damaging. From a feminist perspective, the consequence has been that all too often, ‘the judiciary has attempted to equate women’s experiences with men’s, with the result that women have lost, since there are not equivalent experiences for men’.[58]
Graycar also shows how phrases such as ‘as far as I am able to judge’, ‘human experience has shown’, and ‘experience has taught judges’ have allowed judges to perpetuate myths about women and women’s experiences which could only emanate from a male-centred world view.[59] These range from views about women lying in sexual assault cases,[60] to assumptions about battered women who do not leave relationships,[61] and to images of women in disputes concerning companies.[62] The point is that:
If we had more insight into what judges know, how they know it, how this shapes the construction of reality in judgments, and how this is all affected by gender, race and other aspects of identity, then maybe ‘outsiders’ in law could be more readily heard and respected.[63]
The first step in gaining any such insight has to be a general recognition of the limited utility of the concept of impartiality. An appearance of impartiality may have inherent value, but that value is not absolute. Surely, the importance of confidence in the judiciary ranks second to the fair and proper dispensation of justice. Perhaps if the focus shifted from form to substance, then those currently marginalised by our legal system might receive a ‘fairer go’.[64]
This emphasis on perfect neutrality has meant that, hitherto, judicial officers on the whole have felt it necessary to withdraw from public life entirely. Slesser LJ provides an extreme example:
When I became a judge, naturally I resigned from all political and semi-political associations, and even in church matters I felt it not right to take part in any form of work of markedly polemical nature, so that my retirement from the world really took place in 1929.[65]
A Queensland Parliamentarian remarked in 1921:
A judge has to almost become an isolated person socially and publicly and live quite a different life from the one that he had been living before he became a judge.[66]
Sir Winston Churchill once made comments to similar effect.[67] The US Supreme Court has been described as a ‘monastery of the intellect’, just as it was intended to be.[68] In England, it is said to be ‘a cardinal feature of judicial impartiality that the judge should be a political eunuch’.[69] In Canada, federally appointed judges are denied the right to vote.[70] Justice Thomas of the Queensland Supreme Court is strongly of the view that judges ought to refrain from leading active public lives.[71]
Those judges who have broken from their ranks have, on the most part, been condemned for doing so. There was the American judge who ‘sat in’ in a public street demonstration against the war in Vietnam. The Supreme Court Complaints Committee described his conduct as ‘seriously unwise’, and ‘to have reflected poor judgment’.[72] Lord Hewart CJ was himself ‘an uninhibited political figure, who thrived on controversy’, writing on all subjects, ranging from electoral reform and capital punishment to democratic theory and licensing laws.[73] In the 1950’s, Lord Goddard CJ was attacked for his passionate and partisan campaign against the abolition of capital punishment.[74] In the instant case, Lord Hoffmann’s involvement with AI prompted several to consider the issue of a possible resignation.[75]
More recently however, various judges have started to challenge this trend. Sir Thomas Bingham has written:
... [J]ustice is not a cloistered virtue, and it is in general desirable that judges should have acquaintances and experience outside the monastery.[76]
Closer to home, Sir Anthony Mason granted a television interview on his retirement from the High Court.[77] Current High Court Justice Michael Kirby seems quite prepared to follow Sir Anthony’s example, maintaining a relatively high public profile.[78]
The simple question is, to what extent should judges absolve themselves from participating in public activity? Regardless of their involvement in public life, judges remain bound by their own values, beliefs and ideals. It is important that both the public and the judiciary take the initial step of acknowledging judges’ basic humanity, even if judges are taken to represent only a small section of society. Judge Shientag comments:
The judge who realizes, before listening to a case, that all men have a natural bias of mind and that thought is apt to be coloured by predilection, is more likely to make a conscientious effort at impartiality and dispassionateness than the one who believes that his elevation to the bench makes him at once the dehumanized instrument of infallible logical truth.[79]
We will only be able to develop a more effective legal system once we acknowledge the existence of natural human prejudices in all of our decisionmakers, whoever they might be. One way this might be encouraged is by easing the pressure on judges to lead such an isolated existence. The fact that the judiciary is unrepresentative of the rest of society does not mean that there cannot be at least some divergence of opinion or belief between judges. Nor does this fact make the process any less valuable; even if all judges do have similar prejudices, the point is that the social order would be far better off if some attempt were made to acknowledge what these might be.
Because judicial decision-making invariably involves taking community views into account, it is important that judges are properly attuned to what these views are. As Wood notes, this claim might be directed more at appellate level judges, who do not experience the same ‘panopoly of human life’ as those, say, in the Magistrate’s Court.[80] His claim is that:
Far from extra-judicial work “contaminating” the performance of judicial duties, there is no reason to suppose the former should not enhance the latter.[81]
Wood suggests that perhaps genuine impartiality requires the capacity to empathise with litigants, something which points in the direction of greater community involvement.[82] Professor McKay noted similarly that:
[a] judge is likely to be a better dispenser of justice if he is aware of the currents and passions of time, the developments of technology, and the sweep of events.[83]
Participation in public affairs may also evince a keen interest in community life, thereby enhancing public perceptions of the judiciary, rather than detracting from it.[84] The point here is that extra-judicial activities may in fact improve a judge’s ability to dispense justice, rather than detract from it. The traditional call for judges to withdraw from public life upon promotion to the Bench must be viewed with extreme caution.
Upon his appointment to the New South Wales Supreme Court, Santow J seemed at a loss as to the judge’s proper role:
On the one hand, we are expected to be knowledgeable about the ways of the world, of community concerns. Yet we are also expected to avoid controversy, doing nothing to endanger the perception or reality of impartiality ... Do we become priests in plain clothes, one foot in the outside world, the other in a monastery?[85]
His Honour’s question can be answered in a number of ways. The first point is that the move to the Bench does not involve an ascension to a different reality. Judges are people, and they must recognised as such. But more than this, judges represent a specific type of people. The Pinochet case provides a good example. Of the seven Law Lords presiding in the third decision, all judges were white, all were male, all were between the ages of 60 and 72, and all had been educated at one of two universities, Oxford or Cambridge. Bearing that in mind, it hardly seems radical to suggest that all might have possessed a relatively homogenised set of values, beliefs and ideals. Women’s experiences before the courts generally have demonstrated the inherent dangers of equating the affluent white male perspective with that of society at large. The call thus goes out for judges to recognise that they too have a perspective, something which standard legal rhetoric appears to emphatically deny.
At the same time, it is conceded that an appearance of impartiality may have some value. In the current instance, any suggestions of bias could have taken an already heated international affair to boiling point. Yet the aim of this paper has been to show that any perceived virtues of an appearance of neutrality are relative; just because judges refrain from expressing their views does not mean they do not have any. Both the judiciary and the public at large must recognise who judges are and what they represent, so that our legal system can be adapted to accommodate them. One way of achieving this might be to draw judges away from the ‘monastery’. Such an approach would offer various other benefits, the primary one being that the judiciary would become more attuned to the values and expectations of society at large. In any event, our laws must learn to accept judges for what they truly are, so that a fairer justice may be dispensed. If judges are white, affluent and male, let them be seen as such, ‘warts and all’; it is only once we have openly recognised the true nature of our legal system that we are likely to effect any positive change to it.
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