Impartiality

Abstract Impartiality and the appearance of impartiality in decision-making are the supreme judicial values. They are essential to public confidence in the judiciary and the legitimacy of judicial power. Impartiality is not in relation to outcome in the sense that fidelity to law obliges the judge to favour the side with the best case on the law and the facts. Rather it means that the judge accords equal concern and respect to both sides and acts, as the judicial oath puts it, to do right to all manner of people according to law ‘without fear or favour, affection or ill will’. Impartiality is given effect through the rules which disqualify judges from deciding a case if they have an interest, association, opinion, or prejudgement demonstrating actual or apprehended bias. The obligation to act impartially accepts that judges have experiences, sympathies, and opinions, but requires them to be sensitive to their own biases and consider a case with an open mind. There is now a greater awareness of unconscious biases and heuristics and that judges are no less vulnerable to these than other decision makers, although the focus in judicial decision-making on legally relevant matters along with the procedural standards of fairness should mitigate their impact. The difficulties under current procedures in judges themselves deciding whether they should recuse themselves for bias, or at least apparent bias, has led to calls for a more sophisticated ‘ethical infrastructure’ with a discretionary procedure for referring to other judges the more difficult disqualification issues and with a streamlined procedure for interlocutory appeals against a judge’s decision about recusal.