It is not merely of importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done … Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.
—Lord Chief Justice Hewart. R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256.
It is a maxim of natural justice that no one may be a judge in his own cause. Strict rules for judicial impartiality should always be in place, such as those found in Title 28, section 455 of the United States Code, which reads as follows:
- Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
- He shall also disqualify himself in the following circumstances:
a. Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.
b. Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it.
c. Where he has served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.
d. He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.
e. He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
i. Is a party to the proceeding, or an officer, director, or trustee of a party.
ii. Is acting as a lawyer in the proceeding.
iii. Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.
iv. Is to the judge’s knowledge likely to be a material witness in the proceeding. - A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
Applications by litigants to have judges disqualify themselves on the grounds of apprehended bias are not to be quibbled over. If there is a grain of substance in such a claim, provided the application is raised early, the relief should be granted.
