Judicial Bias – A Lethal and Infectious Virus.

Introduction

1. The doctrine of precedent states that decisions of senior courts are binding on lower courts. The reason behind the doctrine is one of judicial certainty. There is no need for the lower courts to reinvent the wheel each time a case comes before them, instead, they use the decisions of the higher courts as a guide.

2. Some very experienced and senior judges have described the doctrine of precedent as the cornerstone of our legal system. It provides a degree of certainty and a basis for the orderly development of legal rules[1].

3. But, the covid-19 pandemic has highlighted a previously unforeseen problem. This is found when a senior judge is biased, and due to this bias, makes an incorrect decision. Immediately that incorrect decision is made, the lower courts are bound to follow it. In this sense judicial bias is similar to a virus – it immediately infects the whole system with a bad decision. The doctrine of precedent goes from being a cornerstone of our legal system to the very thing that will destroy it.

4. This flyer will briefly set out the doctrine of precedent, then the rules on bias before showing how a biased judge can infect and corrupt the whole system.

Judicial bias and the doctrine of precedent

5. Bias – The rule of law requires judges to be independent and impartial. Essentially this means being free from bias, either conscious or unconscious. The biggest problem is unconscious bias. Thus, a judge is disqualified if he or she has: a) a conflict of interest; b) a connection to one of the parties to a case; c) a financial interest in the case; d) has shown an indication of prejudice or favour towards a party or their associates; or e) some other factor exists that may affect the judge subconsciously.

6. Precedent – Decisions of the higher courts bind those of the lower courts. In a similar factual situation, the lower court must follow the decision and reasoning of the higher court.

Bias is a virus

7. Bias can infect and destroy – This is best shown by an example. If a senior judge, sitting at an appeal at the High Court. failed to disclose that they were friendly with one of the accused, who had been found guilty in the courts below. The question being decided on appeal was whether the Scottish system of detention and questioning suspects before they received legal advice was fair? The judge who was friendly with one of the accused pushed the other judges in the appeal to answer the question in the negative.

8. Immediately that decision was made it would become binding on the courts below and no matter how many people were to criticise it, every court in Scotland must follow it. The whole system is infected by a decision that is tainted by bias.

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[1] Kay v London Borough of Lambeth [2006] UKHL 10 at para. 42.