Friday, 17 August 2012

And yet a bit more on judicial blogging

* The seat of judgment *
"Grim and vast, In hermit loneliness, it sits and broods ..." from The Sphinx by Andrew Downing

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 [2007] 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 na├»ve 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 [2001] 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:

"Working at the Refugee Review Tribunal is rewarding in many ways. One is independent and able to use one's critical faculties to accomplish something that is worthwhile, giving protection to people in need and, one hopes, ultimately promoting the observance of basic human rights throughout the world. Regrettably, the RRT does not often get the credit it deserves. When we find a person to be a refugee, we are criticized for being too soft; when we refuse an applicant, others complain that we are [biased] against refugees. But it's not like that. I think that all of my colleagues try conscientiously to reach the decision which is right. We try to avoid preconceptions one way or the other. When I was first appointed, a colleague who shall remain nameless said to me, 'Let 'em all in, Rory!'. But while I would like to let in to Australia at least 95% of the applicants who come to us, who are usually deserving cases and decent human beings even if they lie through their teeth (as they often do) in their desperation to find a better life, it's not as simple as that. The Government has a fixed quota of places for refugees both onshore and offshore every year. Therefore, for every person in Australia one finds to be a refugee, who is thus able to remain in Australia, another person overseas, also in deep distress, misses out. So it would not be right to find an applicant to be a refugee if they were not truly in need of protection. This means that we have to make decisions which are not easy and not pleasant to make. But it has to be done.

We work with dishonesty and corruption on all sides: foreign governments who practise the most abhorrent forms of cruelty against their citizens, immigration officials bent on keeping out as many people as they can irrespective of need, other parties who in my present position I had better not mention, applicants who weave webs of lies, lawyers and migration agents who prey on them to rip off what little money they have. In these sordid surroundings, it is, I firmly believe, only the RRT and the courts (and, to be fair, a small minority of honest lawyers and migration agents) who stand up for decent values and who honestly seek to do what is right.

I was lucky to be reappointed as a member of the RRT in 1997 when my first term of appointment expired. Unfortunately, many fine colleagues were not, and I miss their wisdom, compassion and expertise. However, we battle on. I have until mid-1999 before my second appointment expires. I have reason to think I won't be reappointed again when that happens. Who knows what the future holds? I shall be looking for opportunities to continue to work in this field in some capacity. I would hope to serve as an advocate for refugee and human rights causes. It is more pleasant to be a person's advocate than his judge."

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.


  1. It's an interesting example.

    I read it before I then read your summary of what the issues were, and I interpreted the words as "95% of applicants are worthy to enter. It may be the norm that they tell a few porkies, but you can understand that".

    In other words, far from showing bias it was showing humanity. It could be argued that it made the Tribunal seem a fairer place.

    But that's the problem with words : unless your style is truly anodyne, then people can, and will, often twist their meaning into what they think is implied, not meant.

    Roll on brain-to-brain communication...

    1. It is an interesting example showing how lawyers (on behalf of clients) will go for anything they think might get an unfavourable decision overturned. It is highly likely that Dr Hudson did not consider the risk of "apparent bias" when he wrote his website home page. (Also, he wrote it some 10 months AFTER he made the decision at the Tribunal). The High Court of Australia's judgment shows that - on a fair reading - Dr Hudson had actually shown concern for the plight of those seeking to enter Australia but he pointed out that, understandably enough, many of them will tell lies. This made the Tribunal's work all the more difficult.

      Naturally enough, I support RESPONSIBLE blogging even by members of the judiciary but the Senior Presider is right to point out that there are risks. Unfortunately, his guidance did not draw attention to the apparent bias rule and the guidance does not, in my view, assist the reader to really see what is and what is not acceptable. The guidance is vague but disciplinary action is threatened for breach of it.

      (Interestingly enough, the latest Senior Presider's guidance to Magistrates on Police and Crime Commissioners does point out the apparent bias rule).

    2. Luckily I'm not a judge, so I can blog from the Supreme Court - please see , and, for a touch of Leveson,