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The Times
January 12 1999

 

The judiciary's approach to bias by decision-makers poses disturbing questions, says Sir Louis Blom-Cooper

NOT for years has an issue so dominated talk in the Temple and divided the talkers so deeply as the rights and wrongs of the Pinochet affair. But the central issue of whether heads of state are immune for acts of state considered by the international community to be heinous crimes is not up for debate here.

That will be for the House of Lords appellate committee at the rehearing of the case next Monday. The hearing follows the setting-aside of the original ruling by three to two denying General Pinochet any immunity.

In the meantime, there are disturbing features about the procedure for disclosure by judges of potential conflicts of interest and the law's approach to what is - often glibly - described as bias on the part of decision-makers. Normally in litigation, a party to a dispute may perceive a disadvantage to itself in the judge (or judges) assigned to the case. This occurs mostly at the trial stage; rarely does it arise on appeal because appeal court judges are not the primary fact-finders. The party perceptibly prejudiced will apply for the trial judge to stand down and be replaced if the case of bias is made good.

Often an appointed judge will initiate disclosure of a possible conflict of interest and seek the parties' reactions. Often the interest is not such as to arouse perturbation; the parties readily acknowledge that it will not affect the judge's judicial approach to the case and do not seek his or her removal.

Occasionally, though, the judge will remove himself. Mr Justice Frankfurter of the US Supreme Court once stood down in a case involving the validity of the musical output over the address systems of the public buses in Washington DC. So disturbing did the Associate Justice find the imposed music that he felt he could not remain unaffected in the courtroom by his personal distaste for the transport company's activities. Had Lord Hoffmann perceived himself to be similarly placed, he would have disqualified himself or, having disclosed his association with Amnesty International, asked if the parties objected to his sitting in judgment.

The objectors, if any, would have been the Pinochet supporters. If they knew of Lord Hoffmann's connection at the time of Amnesty's intervention, they might still have thought it wise to forgo any objection. After all, they had the judgment of Lord Bingham of Cornhill, the Lord Chief Justice, and his two colleagues in their favour and may have been confident of keeping their winnings.

But what about the party that might conceivably gain some advantage from having a friend on the bench? When Amnesty International applied to intervene in the proceedings before the law lords, presumably it was then (or soon after) aware that Lord Hoffmann was to sit. Whatever advantage it might thereby gain, were not its lawyers obliged to disclose their client's link with Lord Hoffmann? I think so; and I speak as a founder member of Amnesty in 1961. Maybe the law lords think so, too. Certainly such disclosure would have avoided the bias issue clouding the proceedings. It may be that Amnesty and its lawyers thought there was no issue of bias. After all, it might be assumed (rightly, one hopes) that all our most senior judges would privately subscribe to the aims of Amnesty International.

Lord Hoffmann was only more transparently overt about his support than his brother judges. Therein lies the rub. Are we not all confusing preconceptions with bias, only the latter evoking any sense of judicial impropriety?

We are all born with predisposition. The process of education and socialisation creates attitudes that affect each one of us in judging situations, attitudes that precede reasoning in particular instances and which, by definition, are prejudices. Without acquired preconceptions, life could not go on. Were these prejudgments, or habits, absent and the individual obliged to treat every event as a precedent presenting wholly novel problems, he or she would go mad.

Bias - in other words, partiality - must connote something more than preconceptions (or prejudices). To be biased is deliberately to take on an attitude that is in a different dimension to the essential characteristic of the sensate human being. But preconceptions may be perceived, rightly or wrongly by the reasonable onlooker, as indicating bias.

Originally, of course, disclosure by judges in private litigation was confined to their pecuniary interests. It is easier to identify a relative financial interest than it is to discern a pertinent political or social attitude.

A civilised society should assume that its senior judges will all have the aptitude and attitude, when sitting in judgment on fellow human beings, of recognising their preconceptions and applying the law as they understand it, "without fear or favour".

By that criteria, Lord Hoffmann, by his formal link with Amnesty International, had displayed publicly his preconceptions in the area of human rights and civil liberties, but not in the context of the instant litigation.

• Sir Louis Blom-Cooper is the co-author, with Professor Gavin Drewry, of Final Appeal: a Study of the House of Lords in its Judicial Capacity (Clarendon Press).

 

Panel of seven to rule on Pinochet

BY FRANCES GIBB LEGAL CORRESPONDENT

SEVEN law lords have been appointed to rehear General Pinochet's appeal in the House of Lords next week. The decision for a rare sitting of seven, rather than the usual five, was announced yesterday as the law lords held a special meeting with Lord Hoffmann.

It was the first time Lord Hoffmann had met his colleagues since they were forced to set aside their ruling because he failed to disclose links with Amnesty International. The hour-long meeting in the House of Lords - to discuss new ground rules on disclosure of interests and to avoid a repeat fiasco - was entirely amicable.

Lord Hoffmann's future is not thought to have been discussed and he is not believed to have offered any apology for what happened. Nor was one sought for making the law lords what one judge has called "a laughing stock".

But some senior judges fear that he is preparing to ride out the storm, and a number feel that he should resign.

The seven law lords who will rehear the case next Monday are Lords Browne-Wilkinson, Goff of Chieveley, Hope of Craighead, Hutton, Saville of Newdigate, Millett and Phillips. The first four were on the panel that decided unanimously to set aside the original House of Lords ruling before Christmas. The three others have not been involved with the case at all.

Later this week the law lords will publish their reasons for setting aside the 3-2 ruling denying General Pinochet immunity from prosecution.

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