Reducing the risk of biased judges

In his best-selling book, "Lunatic Soup", ex-barrister Andrew Fraser in his always-readable style, raises the question of judicial bias in criminal cases.

"One contentious issue that continues to cross my mind in these cases [drug cases] and has done so on many occasions is whether a judge in such a trial should declare his or her position as to drugs. For instance, if a judge has a son who has a drug problem, is that relevant to him or her in sentencing and the question of his impartiality? Does it affect the quantum of their sentencing? Does it affect their attitude to drugs? Does it affect criminals generally? Does that judge conduct a trial differently? No doubt the judge's little helper, otherwise known as the judge's handbook, will help there! What if a judge has had a brother die of a drug overdose? Should that be declared to the court? I've always found this concept worrying. I think that the answer is yes. Judges should declare such issues. For instance, before dealing with a culpable driver they should declare if they have had a loved one killed or maimed in a car accident. Or before dealing with an armed robber they should declare whether they have been in a bank when it was robbed. These are all examples of how judges are human and are subject to human fragility and prejudice. I know for a fact that a couple of these examples have arisen and not a squeak was uttered."

Fraser's views assume a greater significance than before, following a recent landmark decision by the Victorian Supreme Court. But first, a few words about apprehended bias.

Apprehended bias

Loosely defined, apprehended bias is said to arise when a decision maker (such as a judge, a magistrate, or a tribunal member), may be perceived by a reasonable person in possession of the relevant facts, to be at risk of bias in carrying out his or her duties. The crucial factor is the perception, not the reality of bias. Apprehended bias is an application of the well-established legal principle that justice should not only be done, but should also appear to be done. If there is a risk of apprehended bias, a decision maker should step aside. Moreover, if apprehended bias comes to light after a decision has been made, that decision may be annulled, and the matter heard again. More formal definitions and many examples may be found on line. Of course, in the Introduction, Fraser was addressing real bias ("judges are human"), not apprehended bias. But his words about full disclosure obviously apply to both kinds of bias.

A recent Supreme Court judgment reinforces Fraser's arguments

The Victorian Supreme Court of Appeal (VSCA) recently upheld an appeal alleging apprehended bias, in a case that is remarkably similar in nature to the examples that Fraser mentioned. The appeal alleged that the judge had a personal association with earlier circumstances similar to the case that was then heard by the judge in the County Court. The County Court case was a sexual assault allegation in which the victim was an underage girl. The earlier personal circumstance with which the judge was associated was a sexual assault against the judge's young daughter. The earlier circumstances had not been disclosed pre-trial in the County Court (see LAL versus The Queen (2011), VSCA 111).

Suffice to say here that the earlier circumstances involving the judge's daughter and family were indeed extreme and distressing. The VSCA upheld the appeal on the ground of apprehended bias, and ordered a new trial. To my knowledge, this is the first time in the criminal jurisdiction when apprehended bias has been upheld in the sort of circumstances that Fraser gave examples of in the Introduction.

Retrospective implications of the Supreme Court judgment in LAL

The VSCA, by its judgment in the LAL case, has established the principle that the sorts of circumstances, both in LAL and in the Fraser examples, are capable of supporting a finding of apprehended bias, when those circumstances are not disclosed and resolved pre-trial. In my view, the Supreme Court should surely investigate retrospectively the "couple of" similar cases that Fraser "know(s) for a fact" have occurred. These are assertions made unequivocally, in a best selling book, about actual rather than hypothetical cases. While acknowledging the colorful tone of Fraser's assertions, some questions need to be asked. Are Fraser's cases sufficiently similar in seriousness to LAL to warrant some retrospective remedy? What were the fates of the accused persons in Fraser's cases? Are there any more such cases?

One sentence of the VSCA's judgment in LAL deserves to be highlighted. "Prudence dictates that judges should disclose associations if there is a serious possibility that they may be disqualified

[for apprehended bias]". While the Supreme Court on the one hand, and Andrew Fraser on the other, reach their recommendations by different paths, that recommendation is loud and clear. If there can be a reasonable suspicion of bias, declare everything upfront. May judges in the future take heed of the Supreme Court's words!