What the Fair Minded Observer Really Thinks About Judicial Impartiality
| Published date | 01 July 2021 |
| Author | Andrew Higgins,Inbar Levy |
| Date | 01 July 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12631 |
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Modern Law Review
DOI:10.1111/1468-2230.12631
What the Fair Minded Observer Really Thinks About
Judicial Impartiality
Andrew Higgins and Inbar Levy∗
This article presents the results of an empirical study designed to assess the degree of conver-
gence and divergence between public opinion and the ctional Fair Minded Observer (FMO)
test used to determine whether a judge ought to be disqualied on the grounds of possible
bias. As part of the test, judges imagine whether an FMO would see a risk of bias on the
part of the judge. To the extent that the FMO is partly meant to reect public perception,
the obvious weakness in the test is that no one has tested public attitudes to the risk of ju-
dicial bias specically. We conducted nationally representative public surveys in the UK and
Australia, asking respondents what they think about dierent situations of possible bias (N =
2064). Our results indicate that a gap exists between the FMO created by the courts and public
opinion in both countries across a number of scenarios thought to give rise to possible bias,
including nancial relationships, the risk of prejudgement and fact patterns based on leading
cases.
INTRODUCTION
There are few rights considered more fundamental than the right to an inde-
pendent and impartial tribunal. Everyone has a right to an independent and
impartial judge in the determination of their civil rights and obligations or a
criminal charge against them.1Condence in judicial decisions,and indeed re-
spect for the laws that judges enforce, depend on people’s condence that the
judge hearing a case decided it fairly, meaning inter alia free from biases for or
against any of the parties. The famous quote of Lord Hewart CJ reecting this
principle has now become a maxim: justice must be done, and it must be seen
to be done.2Giving eect to the perception principle in practice, however, is
a formidable task. As part of the legal test for bias, the courts have created a
∗Andrew Higgins is an Associate Professor of Civil Procedure,Faculty of Law and Manseld Col-
lege, University of Oxford. Inbar Levy is a Senior Lecturer at Melbourne Law School. The authors
would like to thank Christoph Engel,Samuel Issacharo, Joseph Weiler and Keren Weinshall for their
comments on this project,the two anonymous reviewers for their constructive suggestions,as well as
the participants at the Singapore Management University Faculty Seminar in March 2019 for their
feedback when the results of this study were rst presented. The authors would also like to thank
Hazel Genn, Ehud Guttel and Eyal Zamir for commenting on an earlier paper that formed part of
this study.This project was made possible thanks to the generous support of the Allan Myers Fund.
1 See for example European Conventionon Human Rights and Fundamental Freedoms (ECHR),
opened for signature 4 November 1950,213 UNTS 221, ETS 5 (entered into force 3 September
1953), Art 6.
2RvSussex Justices,ex p McCarthy [1924] 1 KB 256.
© 2021 The Authors.The Modern Law Review © 2021 The Modern Law Review Limited.(2021) 84(4) MLR 811–841
What the Fair Minded Observer Really Thinks About Judicial Impartiality
ctional fair minded observer (FMO). The FMO is designed to ensure that de-
cisions on judicial disqualication reect the views of lay observers rather than
judicial or legal insiders. If the FMO would apprehend that there was a real pos-
sibility that a judge may be biased,even subconsciously,the judge is disqualied
from hearing the case.
While no one can say denitively whether the law of bias and public per-
ception are in alignment or not, a number of scholars have raised concer ns that
the FMO bears no resemblance to an average member of the public or may not
reasonably reect general public opinion.3The levels of knowledge and angelic
traits attributed to the FMO renders them less like a ctional member of the
public and more like an ideal role model.There has also been no serious empir-
ical eort to nd out what the public – be they average or fair and informed –
actually thinks about judicial bias. There are studies examining public attitudes
towards the legal system including public trust in the legal system, the legiti-
macy of the judiciary,and more,4but public opinion about when judges should
and should not disqualify themselves for possible bias remains unknown.5In
this paper we seek to make some modest inroads into this knowledge decit.6
We did this by conducting two nationally representative online surveys of UK
and Australian residents. We selected these two countries for largely practical
reasons7and because of the historical, cultural and legal ties between the two
countries and the similarities in the law of bias in their respective jurisdictions.
For these reasons we considered the UK and Australia would be suitable coun-
tries for the purposes of comparative research.8It turned out that the views of
3 See for example S. Atril, ‘Who is the “Fair-Minded and Informed Observe”? Bias after Magill’
(2003) 62 CLJ 279; A.A. Olowofoyeku,‘Bias and the Infor med Observer: A Call for a Retur n
to Gough’ (2009) 68 CLJ 388; M. Groves,‘The Rule against Bias’(2009) 39 HKLJ 485
4 See for example D.B.Rottman and T.R.Tyler,‘Thinking about Judges and Judicial Performance:
Perspective of the Public and Court Users’ (2014) 4 Oñati Socio-legal Series 1046 (discussing
ndings from the US); H.G. Genn, Paths to Justice: What People Do and Think About Going to Law
(Oxford: Hart Publishing, 1999) (discussing ndings from England).
5 As far back as 1987 John Leubsdorf observed that no one had ever conducted a poll of public
attitudes to judicial bias: J. Leubsdorf, ‘Theor ies of Judging and Judge Disqualication’ (1987) 62
NYU L Rev 237, 281. As far as we are aware, no one has conducted any survey since Leubsdorf’s
article either.
6 For a somewhat similar proposal to use surveys and experiments to interpret the language of
contracts see: O. Ben-Shahar and L.J Strahilevitz, ‘Interpreting Contracts via Sur veys and Exper-
iments’ (2017) 92 NYU L Rev 1753.
7 We are respectively based in UK and Australian universities, both us have lived and worked in
both countries, and we have a strong familiar ity with the law of bias in both jur isdictions.
8 There are some dierences in the Constitutional frameworks that mean they are not perfect
comparators. For example,federal judges in Australia are granted tenure under the Constitution,
s 72, and although it is possible to appoint acting judges to the State Courts the practice is rare,
and if adopted extensively,would be susceptible to Constitutional challenge. For instance, in Forge
vAustralian Securities and Investments Commission [2006] HCA 46, Gummow,Hayne and Crennan
JJ stated at [47]: ‘[T]he appointment of a legal practitioner to act as a judge for a temporary
period, in the expectation that that person would, at the end of appointment, return to active
practice, may well present more substantial [constitutional] issues. The diculty of those issues
would be intensied if it were to appear that the use of such persons as acting judges were to
become so frequent and pervasive that,as a matter of substance, the court as an institution could
no longer be said to be composed of full-time judges having security of tenure until a xed
retirement age.’ By contrast, the use of part time judges who sit as judges and practice as lawyers
812 © 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited.
(2021) 84(4) MLR 811–841
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