|* The seat of judgment *|
An important thing for any decision-maker to avoid is bias. Bias may be actual or apparent. In respect of judicial office-holders, whether they be judges, magistrates or tribunal members, the avoidance of even an appearance of bias is essential. In this regard, those who take the Queen's shilling have to accept some restriction on their general right to freedom of expression.
The test for bias is set out in case law and this is summarised by the House of Lords (in relation to Police Officers serving as jurors) in Abdroikof  UKHL 37 - Lord Bingham at paras.14-16. The legal test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The characteristics of the fair-minded and informed observer are that he must adopt a balanced approach and will be taken to be a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious.
Litigants (and their legal representatives) are inclined to lack a sense of humour about decision-makers. They expect them to be, as they have long been, as enigmatic as the Sphinx.
In this regard, the Senior Presiding Judge is correct to warn of the dangers but I would still maintain that his guidance should be revisited given that it offers neither a clear idea nor gives examples of what may or may not infringe and yet disciplinary action is a possibility for infringement ! The tenor of the guidance appears retrogressive and unwilling to properly address the issues raised in the internet age. Earlier posts here and here.
In 2001, an interesting case came before the High Court of Australia. It was Ex Parte Epeabaka (2001) 206 CLR 128 or  HCA 23. The case concerned remarks put on the internet by Dr. Rory Hudson who was a member of the Australian Refugee Review Panel. Dr Hudson decided to tell the public "something about what [he] believe[d] in and what [he] like[d] to do." He said: "That way, perhaps you will get some idea of where I'm coming from." So, in a home page on the Internet, in October 1997, he published some photographs of himself and his friends, and told some of his life's story.
In particular, he wrote:
A tribunal decision taken by Dr Hudson was challenged on the ground that this statement demonstrated what the court referred to as "ostensible" bias. In particular, objection was take to the phrase - " ...even if they lie through their teeth (as they often do) ..."
A reading of the High Court's judgment is difficult due to the lengthy discussion of a number of jurisdictional issues. Fortunately, these need not concern us here. In the end, the High Court ruled that, read as a whole and in context, Dr Hudson's statement had not shown ostensible bias.
One interesting point is that Dr Hudson published his comments some 10 months AFTER he had made the tribunal decision in question. The court held that such later publication was still capable of showing that its maker either was biased or that the appearance of bias could exist.
Kirby J certainly did not regard the challenge as being without merit and he hesitated before concluding that ostensible bias had not been shown. The judge said (at para. 81):
" .. there is the unusual feature of this matter which most applicants before the Tribunal would not have faced. That feature is not so much that Dr Hudson had a personal home page on the Internet (something that may become unremarkable in years to come). Nor was it the fact that he referred, in his home page, to his statutory office and to refugee law. What was unusual was that, in that discussion, he made direct remarks concerning a matter which is usually at the heart of the exercise of the Tribunal's jurisdiction. He did so in terms that could be read as derogatory of the majority (or at least many) of the applicants for refugee status. [My emphasis].
"The existence of electronic communication of ideas, and the discussion by judges and tribunal members of issues relevant to their vocations, is less shocking today than it would have been in earlier times. Then it would have been unthinkable. Now, prudently performed, it may contribute to a more informed understanding of matters of legitimate community concern, a better appreciation of professional issues relevant to the administration of justice and greater transparency in government generally."
On a fair reading of Dr Hudson's remarks, the decision of the High Court seems right. However, the case shows the considerable difficulties which could arise. Any appearance of bias must be avoided.
A full reading of Ex Parte Epeabaka is recommended.