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BRITISH JOURNAL OF AMERICAN LEGAL STUDIES VOLUME 4 - SPECIAL ISSUE Spring 2015 SPECIAL ISSUE The School of Law, Birmingham City University and Modern Law Review JUDICIAL RECUSAL: 21st Century Challenges Contents Judicial Recusal: Differentiating Judicial Impartiality and Hon Michael Kirby AC CMG Judicial Independence? Judicial Recusal: The Legislature Strikes Back? Hon Sir Grant Hammond KNZM LLD Giving Up Appearances: Judicial Disqualification and the Hon Raymond J McKoski Apprehension of Bias Judicial Recusal: A Need for Balance and Proportion Rt Hon Lord Roger Toulson ISSN 2049-4092 (Print) BRITISH JOURNAL OF AMERICAN LEGAL STUDIES Editor-in-Chief: Dr Anne Richardson Oakes, Birmingham City University Associate Editors Graduate Editorial Assistants 2014-2015 Sarah Cooper, Birmingham City University Daniel Gough Dr Haydn Davies, Birmingham City University Maurice A Deane School of Law, Hofstra Prof Julian Killingley, Birmingham City University University New York Student Editorial Dr Jon Yorke, Birmingham City University Assistants 2013-2014 Seth Barrett Tillman, National University of Dave Ackerman Ireland, Maynooth Kelsey Walker Birmingham City University Student Maurer School of Law, Indiana University Editorial Assistants 2014-2015 Student Editorial Assistants 2013-14 Lorna Arnold Ron Blue Lorenza Simonassi Nogueirra Jack Rogers Editorial Board Hon Joseph A Greenaway Jr, Circuit Judge 3rd Circuit, U.S. Court of Appeals Hon Raymond J McKoski, Circuit Judge (retired), 19th Judicial Circuit Court, IL. Adjunct Professor of Law, The John Marshall Law School, Chicago, IL Prof Antonio Aunion, University of Castille-la Mancha Prof Francine Banner, Phoenix School of Law, AZ Prof Devon W Carbado, UCLA, CA Dr Damian Carney, University of Portsmouth, UK Dr Simon Cooper, Reader in Property Law, Oxford Brookes University, UK Prof Randall T. Coyne, Frank Elkouri and Edna Asper Elkouri Professor, College of Law, University of Oklahoma, Norman OK Mark George QC, Garden Court Chambers, Manchester, UK Prof Larry Hammond, Osborne Maledon PA, Phoenix AZ Dr Carolyn Hoyle, Reader in Criminology, University of Oxford, UK Prof James Kousouros, CALS Visiting Professor, NY Prof Ian Loveland, City University London, UK Prof James Maxeiner, Center for International & Comparative Law, University of Baltimore School of Law, Baltimore, MD Prof Ruth Miller, University of Massachusetts, Boston, MA Dr Anne-Marie O’Connell, University Toulouse 1 Capitole Prof Austin Sarat, William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College, MA Dr Stephen W Smith, University of Birmingham, UK Prof Carrie Sperling, Sandra Day O’Connor College of Law, Arizona State University, AZ Prof Clive Stafford Smith, Reprieve Dr Timothy Stanley, Rothermere American Institute, University of Oxford, UK Prof Adam N Steinman, Seton Hall University School of Law, Newark, NJ Prof Russell Wheeler, The Brookings Institution, Washington DC BRITISH JOURNAL OF AMERICAN LEGAL STUDIES VOLUME 4 - SPECIAL ISSUE Spring 2015 SPECIAL ISSUE The School of Law, Birmingham City University and Modern Law Review JUDICIAL RECUSAL: 21st Century Challenges Judicial recusal is the principle that judges may recuse (disqualify) themselves from proceedings if they decide that it is not appropriate for them to hear a case. In Blackstone’s time judges were only required to recuse themselves in cases of actual bias. Subsequently Lord Hewart, C.J.’s much-quoted dictum: ‘It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’ has been relied on to extend the scope of the requirement to include cases of apparent bias. This special issue publishes the seminar papers of a pre-eminent panel of serving and former judges from Australia, New Zealand, the United Kingdom and the United States assembled for the first time in Birmingham 26th September 2014 and chaired by Mark George QC to discuss problems of recusal, the reasons for its recent rise in significance, and to identify unresolved issues. Contents Judicial Recusal: Differentiating Judicial Impartiality and Judicial Independence? Hon Michael Kirby AC CMG .................................................................................... 1 Judicial Recusal: The Legislature Strikes Back? Hon Sir Grant Hammond KNZM LLD .................................................................... 19 Giving Up Appearances: Judicial Disqualification and the Apprehension of Bias Hon Raymond J McKoski ....................................................................................... 35 Judicial Recusal: A Need for Balance and Proportion Rt Hon Lord Roger Toulson ................................................................................... 71 JUDICIAL RECUSAL: 21st Century Challenges Mark George QC Mark George QC is Head of Chambers at Garden Court North Chambers in Manchester. He has been a barrister for more than 35 years specialising in criminal defence work, prison law and inquests. He is currently instructed in the Hillsborough Inquests as part of a team representing 22 of the families who lost loved ones in the disaster. Hon. Sir Grant Hammond Grant Hammond has practiced for over a decade as a civil litigator and appeared in all courts up to the Judicial Committee of the Privy Council. He was appointed to the New Zealand High Court in 1992; the New Zealand Court of Appeal in 2002, and in 2008 seconded as President of the New Zealand Law Commission. Hon. Michael Kirby AC CMG When he retired from the High Court of Australia in 2009, Michael Kirby was Australia’s longest serving judge. He has served on many national and international bodies such as the World Health Organisation’s Global Commission on AIDS. In 2013, he was appointed Chair of the UN Commission of Inquiry on Human Rights Violations in North Korea. Raymond J. McKoski Raymond J. McKoski served as a state court trial judge in the United States for 25 years before retiring in 2010. He teaches at The John Marshall Law School in Chicago, Illinois and serves as the Vice-Chair of the Illinois Judicial Ethics Advisory Committee and as an editorial board member of the British Journal of American Legal Studies. Rt. Hon. Lord Toulson The Right Honourable Lord Toulson is a Justice of the Supreme Court of the United Kingdom. He became a Queen's Counsel in 1986 and a judge of the High Court of Justice in 1996. From 2002 to 2006 he sat as Chairman of the Law Commission of England and Wales. In 2007 he was promoted to the Court of Appeal, made a member of the Privy Council and appointed to the Judicial Appointments Commission. He is the co-author of a text-book on the English law of confidentiality. JUDICIAL RECUSAL: DIFFERENTIATING JUDICIAL IMPARTIALITY AND JUDICIAL INDEPENDENCE?* The Hon. Michael Kirby AC CMG** ABSTRACT This article examines the concepts of impartiality and independence governing judicial and other formal decision makers. Earlier English decisions (including Dimes and Pinochet) treated the concepts as separate. A more recent decision of the High Court of Australia in Clenae (and some recent decisions in England) appear to subsume the two requirements and treat them as conducing to a trial of manifest fairness. The author questions this analysis and explains why, in his opinion, each requirement is important. This is recognised by international and regional human rights law; earlier judicial analysis; and appropriate conceptual- isation. Impartiality refers to what goes on, and appears to go on, in the mind of the decision maker. Independence concerns the relationship of the decision maker to government, the parties and external influences. Dangers lie in merging or ignoring the dual requirements. CONTENTS I. CONTESTED QUESTION ............................................. 2 II. FACTS AND DECISION IN CLENAE PTY. LTD. V. ANZ BANK ....................................................................... 4 III. LATER JUDICIAL DEVELOPMENTS ............................... 8 IV. HUMAN RIGHTS LAW AND ANALYSIS ......................... 11 V. ACADEMIC AND OTHER COMMENTARY .................... 15 VI. CONCLUSION: SEPARATE VALUES .............................. 17 * This article is based upon a paper presented to Modern Law Review Seminar: Judicial Recusal: 21st Century Challenges, Birmingham City University, Birmingham U.K. 29 Sept. 2014. The author acknowledges the assistance of Jack Fogl (UTS, Sydney) with recent materials. ** Justice of the High Court of Australia (1996-2009); President of the New South Wales Court of Appeal (1984-96); Chairman of the Australian Law Reform Commission (1975-84); Rapporteur, Judicial Integrity Group, the United Nations Office on Drugs and Crime (UNODC) (2000-14). 1 4 Br. J. Am. Leg. Studies (2015) I. CONTESTED QUESTION The law relating to recusal deals with the circumstances in which a judge (or other independent decision-maker), acting under legal power, should take no part, or no further part, in a decision or in the steps leading to a decision, alt- hough he or she has been initially empowered to decide it:1 It rests on the fundamental proposition that a court should be fair and impar- tial, and that sometimes a judge’s personal or prior ‘connection’ with that case should lead to him or her not sitting on it, notwithstanding the initial lawful allocation. In his foreword to Justice Hammond’s book on the subject, Lord Justice Sedley observed that: 2 Save in a handful of plain cases, the public and the legal profession will not, of course,
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