Judicial Disqualification Resource Center

United Kingdom

Judicial Recusal in England (U.K.)

windsor castleUnder early English law a judge could be disqualified from presiding over a matter only when he could be shown to possess a disqualifying pecuniary interest in it – and then only when another judge was available to hear the cause. By the Nineteenth Century, however, the English attitude toward judicial disqualification had begun to grow more flexible. Initially, courts of the realm acted slowly by expanding the available grounds for disqualification to include situations in which the challenged judge possessed only a remote proprietary interest in a case, rather than a direct and substantial one. See Note, Caesar’s Wife Revisited – Judicial Disqualification After the 1974 Amendments, 34 Wash. & Lee L. Rev. 1201, 1202 n.11 (1977). However, by the middle of that century, English sentiment regarding the propriety of judges sitting in circumstances other than those involving their own pocketbook had also begun to undergo change. For example, in an 1866 case the Queen’s Bench indicated, in dicta, that disqualification should be ordered whenever there was a real likelihood that the judge harbored a bias in favor of or adverse to one of the parties. The Queen v. Rand, L.R.-Q.B. 230, 232-233 (1866). See also Dimes v. Proprietors of the Grand Junction Canal, 10 Eng. Rep. 301, 313 (H.L. 1852).

In an address to the Cambridge University Law Society in 1920, Lord Justice Scrutton said that in England people were inclined to treat the incorruptibility of judges as such a matter of course that it was superfluous to even mention it. Borrie, Judicial Conflicts of Interest in Britain, 18 Am. J. Comp. L. 697, 708 (1970). But even in early English law a judge could be disqualified from presiding over a proceeding if he possessed a direct pecuniary interest in it. As to such matters, Lord Coke set the standard for his time with his admonition that “no man shall be a judge in his own case.” See 1 Lord Coke, Institutes *141a. Early English construction of Coke’s edict led to the disqualification of a physicians’ review board that had retained the fines it was empowered to levy [Dr. Bonham’s Case, 8 Co. 114a, 77 Eng. Rep. 638 (K.B. 1608)] the “laying by the heels” of the Mayor of Hereford because he had presided over the ejectment of one of his own tenants, the quashing of a court order because one of the judges named in the “stile of [the] Court” also occupied the office that was the subject of the matter before him [Case of Foxham Tithing, 2 Salk. 607, 91 Eng. Rep. 514 (K.B. 1706)] and the overturning of a court action in which the decision benefited the community in which two of the sitting judges resided. Between the Parishes of Great Charte and Kennington, 2 Strange 1173, 93 Eng. Rep. 1107 (K.B. 1726). In fact, even before Bonham’s Case English statutes recognized one ground for disqualification: to prevent favoritism no judge was permitted to try a case in the county in which he was born [Statutes 8 Rich. 2, c.2 (1384), 13 Hen. 4, c.2 (1411), and 33 Hen. 8, c.24 (1541)]; these statutes were not repealed until 1739. See Disqualification for Interest of Lower Federal Court Judges: 28 U.S.C. §455, 71 Mich. L. Rev. 538, 539 (1973).

It cannot be doubted that an English judge may now be subject to disqualification for apparent, as well as for actual bias. In a recent case, Mengiste and another v Endowment Fund for the Rehabilitation of Tigray and others, [2013] EWCA Civ 1003; [2013] WLR (D) 337, Lord Justice Arden, after observing that “the doctrine of judicial recusal was a subject of wide importance.” wrote that “the established test for apparent bias was, if a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the judge was biased, the judge had to recuse himself.” , citing Porter v Magill [2002] 2 AC 357, para 102.

For a recent law gazette article that further describes Justice Arden’s findings in Mengiste, click here.

References:

1. For a 1999 account of a case in which the Court of Appeal gave guidance on the question of the disqualification of judges on the ground of bias click here

2. For a copy of the Judicial Council’s Guide to Judicial Conduct click here

3. For a comprehensive overview of American law on the subject of recusal and disqualification which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007) . To locate libraries in the UK which have the most recent edition of Judicial Disqualification in their collection click here