Bias

Front 1

Bias

Nemo iudex in causa sua

No one may be a judge in his own case

Back 1

(a). Impartialityof courts & administrative bodies;

(b). Justice mustbe seen to be done

(c). Entitlement toa fair hearing

Front 2

R. v Sussex Justices,ex parte McCarthy [1924]

Back 2

Lord Hewart CJ

Manifestly and undoubtedly be seen to be done

Front 3

Dublin Well WomanCentre Ltd and Others v Ireland [1995]

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Denham J

Manifestly and visibly be seen to be done.It is expressed now as constitutional justice

Front 4

Types of Bias

Back 4

1. Automatic Bias;

2. Subjective Bias;

3. Objective Bias.

Front 5

Orange Ltd v Directorof Telecommunications Regulation (No. 2) [2000]

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Subjective Bias, where the decision-maker is shown to havedeliberately intended to hold against a person. Difficult to prove in Ireland.

Automatic Bias, where bias is deemed toexist because the decision-maker has a personal interest in the matter. This isalso rare in Ireland. Proof of facts which gives rise to automatic presumption of bias required.

Objective Bias is where there is a perception of bias rather than actual bias.

Front 6

Dimes v Grand Junction Canal Company (1852)

Back 6

Cottenham LC hadaffirmed an earlier Order granting relief to a company in which, unknown to himself or the parties at the time, he had a substantialshareholding.

House of Lordsemphasised the importance of the rule that no man should be a judge in his owncause

Front 7

O’Donnellv Bank of Ireland 2013

Back 7

Charleton J of theHigh Court was biased in the hearing of his claim because he held a mortgage with the Bank Of Ireland.

“frankly absurd”and held that if having a bank account prevented a judge from hearing a case,then nothing would get done.

Front 8

Hygeia Chemicals Ltd v Irish Medicines Board[2010]

Back 8

Held: subjective bias is a matter of fact to be established in the course ofproceedings.

Front 9

Orange Ltd v Director of TelecommunicationsRegulations (No.2) [2000]

Back 9

Held that for subjective bias to be established, it would have to beproved that the decision-maker was deliberately setting out to hold againsta particular party regardless of the evidence.

Front 10

R. (Donoghue) v Cork County Justices [1910]

Back 10

Trespass of fowl on his land.

One of her son’s heard the magistrate comment after the case that hewould “not leave any member of the [complainant’s] family in the district.”

Front 11

O’Neill v BeaumontHospital Board

Back 11

Evidence of directpersonal animus or even critical comments during the decision makingprocess would likely be fatal

Front 12

Hand v Ludlow [2009]

Back 12

Vicarious animus is probably not, though a concern with this case was perhaps the doctrine of necessity!

Front 13

Spin CommunicationsLtd. v. Independent Radio and Television Commission [2001]

Back 13

Murray J

As expressedby Keane C. J. in his judgment in the Orange Communications with which amajority of the court expressly agreed, thatthere is: - 'No room for doubt as to the applicable test inthis country: it is that thedecision will be set aside on the ground of objective bias where thereis a reasonable apprehension or suspicion that the decision maker might havebeen biased.

no actual bias, thereis an appearance of bias>

Front 14

Proving objective bias

Back 14

Must be shown thatthere existed some external factor extraneous to the decision making processwhich could give rise to a reasonable apprehension that the decisionmaker might have been biased. Furthermore, this external factor must existprior to the decision made."

Front 15

State (Hegarty) vWinters [1956]

Back 15

Decision of a propertyarbitrator regarding a CPO by a local authority. In the Supreme Court, MaguireCJ held that his conduct could ‘reasonablygive rise in the mind of anunprejudiced observer to the suspicion that justice was not being done.’

Front 16

Kennyv Trinity College [2008]

Back 16

Denham J confirmedthat the test for deciding whether objective bias existed was:

“…whether a reasonable person in the circumstances and with the knowledgeof the facts would have a reasonable apprehension that the applicants would nothave a fair hearing from an impartial judge on the issue.”

Front 17

Dowlingv Minister for Finance [2013]

Back 17

Supreme Courtdecided that the test for objective bias was “well settled”

Front 18

Circumstancesin which Objective Bias Arises

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1. Material interest

2. Relationship with one of the parties

3. Ill-will or malice

4. Prior involvement & pre-judgment

5. Prior knowledge of the facts & pre-judgment

6. Doctrine of necessity

7. Segregation of prosecutorial and decision-making roles

8. Impropriety in theCourse of Proceedings

Front 19

Dublin and County Broadcasting v IndependentRadio and Television Commission 1989

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Murphy J. held thatthere must be a ‘real possibility of financial gain’ which was known to thedecision-maker.

Front 20

North Wall Property Holding Company v DublinDocklands Development Authority 2008

Back 20

Alleged agreementbetween the DDDA and the Notice Party if the DDDA granted thenotice party the s.25 certificate [a type of planning permission for special“strategic” areas of development] the notice partywould transfer land free of charge tothe DDDA. Thus, the applicant contended, the DDDA would obtain a benefitfrom granting the s.25 certificate and the prior agreement therefore gaverise to a reasonable apprehension of bias.

Front 21

Justice Finlay citedfollowing passage from Radio Limerick v. IRTC

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does not relieve thecommission of the obligation to take every step reasonably open to it toensure that its conclusions are reached in a manner, not merely free frombias, but also of the apprehension of bias in the minds of reasonable people.But where, as here, a body is obliged to carry out certain statutoryfunctions and no issue arises as to the constitutionality of the relevant provisions,a court cannot by the strict application of the legal principles alreadyreferred to prevent the body from exercising those functions, where allpractical steps have been taken by it to free itself, not merely fromactual bias but the apprehension of bias in the minds of reasonable people.’

Front 22

O’Reilly v Cassidy (No.1) [1995]

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Allegation wasmade that a judge hearing a case was biased because on the sides wasrepresented by his daughter, who was a barrister. The Supreme Court ruled inthe first case affirms the requirementthat an objection must be made during proceedings.

Front 23

O’Reilly v Cassidy(No. 2) [1995]

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Flood J. in the HC heldthat the relationship was of itself unobjectionable; some extraelement was necessary to satisfy the objective test for bias. Theoverriding principle was that justice must be seen to be done.

Front 24

Dublin Well WomanCentre Ltd and Others v Ireland [1995]

Back 24

SC held thatCarroll J. in HC hearing had not applied the test for objectivebias, whether a person in the position of SPUC, being areasonable person, would apprehend that his chances of a fair and independenthearing did not exist because of the prior position, statements and actions ofthe judge.

Denham J. went on to say that once a possible perception of bias hadbeen raised reasonably on the grounds of the pre-existing position or actions,it was enough.

Front 25

Bula Ltd v Tara Mines Ltd (No. 6) [2000]

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SC held that in orderto discharge a judge it is not necessary to show a real danger ofbias. Rather the test is whetheran ordinary reasonable member of the public would have a reasonable apprehension thatthe applicants would not have a fair hearing from an impartial judge

Held in this casethat barristers are independent and that “thereasonable person” would recognise that

Front 26

Dublin and CountyBroadcasting v IRTC

Back 26

Bias was alleged not onlybecause the decision-maker had a financial interest, but also becauseof his previous association with E-Sat Television who had a controllinginterest in one of the successful bidders. Murphy J. held ‘there was noreal likelihood of bias and that no right-minded man would have thought so.’

Front 27

Ill will / Malice

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A ruling is likelyto be quashed where there is a perception that the decision-maker is motivatedby ill-will or malice and is making his/her decision on grounds other thanthose appropriate in the circumstances of the case. [This is different to SubjectiveBias in that here there may not be actual ill-will or bias but there isnonetheless a reasonable perception of this].

Front 28

State (O’Mahoney) vSouth Cork Board of Public Health [1941]

Back 28

Maguire P. saidthat ‘mere pique [annoyance] atan unfavourable judgment in the High Court’ was no reason for denying theapplicant an impartial hearing.

Front 29

Bane v Garda RepresentativeAssociation [1997]

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Held that it isnot necessary for ill-will or malice to be obvious or manifest as was theill-will or malice displayed by the Defendant Authorities in the O’Mahoney case above.

It will be enoughto quash a decision that there are reasonablegrounds for believing that ill-will or malice may undermine a fairhearing.

Front 30

McGrath v Trustees ofMaynooth College [1979]

Back 30

Case involved the issueof prejudgment specifically. The SC madea distinction between pre-judgment which was not acceptable and apredisposition which may be acceptable if it shows merely a preference which iscapable of being revised in the course of proceedings. The SC also held that thestrong views of a decision-maker on an issue did not undermine a decisionmade by an administrative body provided that it was willing to hear bothsides and resolved not to decide the matter beforehand.

Front 31

P vJudge McDonagh [2009]

Back 31

Circuit Courtjudge was alleged to have certain comments which were alleged to havepre-determined the outcome of family law proceedings.

He refused to withdrawfrom the case. The High Court held: “It seems … that there is another form ofpre-judgment which arises where the evidence indicates that the adjudicator hasreached a conclusion on a question at a timeprior to it being proper for such adjudicator to reach such a decision…[Thismay happen when] comments were made by the adjudicator which made it clear thatthe adjudicator had reached a decision on some important point in the case at atime when no reasonable adjudicator could have…”

Front 32

Doctrineof Necessity

Back 32

This doctrinerecognises that in some cases it may not be possible or not practical tohave a case heard by an impartial decision-maker. The alternatives are a)that the case cannot be heard or b) that it may be that the decision has to bemade by someone with an interest in the matter.

Front 33

Ref audi alteram partem

Back 33

A decision-maker mustkeep an open mind in order to make a fair decision based on evidence presented.There is a Distinction made betweenbodies exercising judicial functions and those exercising administrativefunctions.

General principles applicable to determine bias are similar in either case.The difference is that the courts are more lenient in relation to bodiesexercising administrative functions: while a judge must always beimpartial, the courts take the view that there may be nothing wrong with adecision-maker exercising administrative functions and having some interest inthe matter.

Front 34

re the Solicitors Act1954 [1960]

Back 34

Kingsmill Moore J.noted that the committee could not be seen as completely disinterested inthe matter before it. He held that as the tribunal in question was not‘administering justice’

Front 35

O’Brien v Bord naMona [1983]

Back 35

In exercisingadministrative functions, while the body must ‘act fairly and properly’ (and in that sensemust ‘act judicially’), it is not necessarily prevented from deciding amatter in which it has an interest. The SC said that the compulsory acquisition power exercised byBord na Mona was an ‘administrative function’ in that it involvedbalancing the desirability of the production of turf on the one hand and theinterest of an individual landowner on the other. There is a less stringentform of the rule against bias applied to bodies exercising so-called administrativefunction. =222

Front 36

O’Neill v BeaumontHospital Board [1990]

Back 36

SC said that weightmust be given to the consideration that if the entire board of the Hospital wasdischarged from hearing the investigation, there might be no other way in whichto decide a matter which was of great importance to the hospital.

Finlay CJemphasised that the doctrine is not a dominant factor in anycircumstances and, more specifically, would never defeat a real and reasonablefear of bias or injustice.

Front 37

Radio Limerick OneLtd v IRTC [1997]

Back 37

'there are bound to be instances in which anadministrative tribunal charged with quasi-judicial duties may lack theappearance of strict impartiality expected from a court administering justice.’

Nonetheless it is important to take allpractical steps to avoid a situation where a reasonable person would have areasonable fear that he would not have a fair hearing.

Front 38

Segregation of theInvestigative and Decision-Making Roles

Flanagan v UCD [1988]

Back 38

Involvedinvestigations into allegations of plagiarism. The matter was put to aUniversity disciplinary committee in which the University Registrar acted asprosecutor. After the student had addressed the committee, she and herrepresentative were asked to leave, while the Registrar remained with theCommittee. It was held that the Registrar, who was convinced of the applicant’sguilt, should not have sat with the Committee while the case was being decided.

Front 39

Impropriety in theCourse of Proceedings

Dineen v Delap [1994]

Back 39

District Judge replied that the garda could read from whateverhe liked and that ‘[t]he days of the garda making a slip in the witness boxare long gone and if he does make a slip I will recall him.’

High Court adoptedthe words of Maguire CJ in Hegarty vWinters (see case at start of these notes) the above case, concluding thatthe trial judge’s conduct could ‘reasonably give rise in the mind of anunprejudiced observer to the suspicion that justice was not being done.’

Front 40

Waiver

Back 40

A party mustobject immediately to their apprehension of Bias in the decision making process.Thecourts have generally held that a person with full knowledge of facts said toconstitute bias may waive his rights if objection is not taken.

Front 41

Corrigan v Irish LandCommission [1977]

Back 41

“It would be obviously inconsistent withthe due administration of justice if a litigant were to be allowed toconceal a complaint of that nature in the hope that the tribunal willdecide in his favour, while reserving to himself the right, if the tribunalgives an adverse decision, to raise the complaint of disqualification.”