Q on Nemo Admin:

‘The rule against bias (nemo judex in causa sua principle) is now too uncertain in its application.’
Discuss.
Modified Answer
Answer:
The rule against bias is also known as ‘nemo judex in causa sua. It is a Latin term which means ‘no one
should be a judge in his own cause’. This means that if a judge is deciding a case where has some
personal or financial interest directly or indirectly would taint the justice and it would be assumed as
biased judgment. As the above-mentioned question, requires a discussion that whether the rule against
bias (nemo judex in causa principle) is quite uncertain in its application. In the below submissions, we
have to see whether the statement is right or not.

Before explaining whether what statement above is right or not we shall explain the law in order to make
it easy for the reader to understand. As the law of nemo judex states that if a judge has even slight
interest either financially or personally, then the judgment will be considered as biased judgment.
Considering this point, it can be said that most of the times judges would be linked to the case either
financially or personally so if every judge is labelled as partial and the decisions are held illegal if this
remains the case, then how would the decisions would be made. There is a challenge for administrative
law is that it is always the case that decisions will be taken by government officials acting in response to
government policies, hence it is difficult for any such decision to be taken in such a manner that is
completely impartial. This is why law seeks to strike a balance between the required need for
impartiality and the reality that delivery of such perfect impartiality is very difficult, if not impossible, to
achieve. However, there are some circumstances in which the approach taken by the courts is stricter
than usual cases. They do so because, in essence, it is necessary to distinguish between the different
circumstances where bias might arise in order to check the judicial response to it. There are two main
interests in which the courts take a strict approach in deciding the cases namely personal interests and
financial interests.

In “Dimes v Grand Junction Canal Proprietors”, it was established that where a judge has a financial
interest in the outcome of a case, whether direct or indirect, his involvement in the case is contrary to
the rule against bias. In “El Faragy v El Faragy” it was established that where a judge at first instance in a
divorce case depicts a disliking to one or other of the parties and makes this clear in the conduct of the
proceedings, the decision of the court will be challenged as a result of the apparent bias. The financial
interest should be proportionate and justifiable enough to disqualify the adjudicator.

There are a number of situations, where institutional bias might taint the outcome. The courts have
been willing to hold decisions unlawful due to the presence of institutional bias in some circumstances,
despite the fact where the decisions involve an element of policy, or any political disagreement, the
courts have not generally been willing to but in between. In “R (On the Application of Al-Hasan v
Secretary of State for the Home Department” an appeal against a decision of the Governor of a prison to
sanction a penalty upon a prisoner on the disciplinary grounds and it was heard by the Deputy Governor,
who also attended the initial hearing of the case by the Governor. The House of Lords held that the
hearing of the appeal by the Deputy Governor offended the rule against bias, as his decision in the
appeal would likely be affected by what he had heard in the initial hearing by the Governor. The hearing
of the appeal here offended Article 6 ECHR. Any financial interest in the outcome of the case will be
assumed as financial bias and it will lead to breach of Natural Justice. We have already seen some cases
where the outcome was held illegal because an element of financial interest was present. In “Dr.
Bonham’s Case” it was held that, the Boards of physicians itself obtruded fines as well as received it. Lord
Chief Justice held it to be a breach of Natural Justice. This case defines, how financial interest can be
linked with the one who is deciding the issue. In “McCarthy” the solicitor of the claimant who was also a
clerk at the Magistrate’s Court and he was sitting with the magistrate while he was deciding the case.
Although, the clerk did not say a word and was only observing silently but still the judgment was
A financial interest which does not go beyond a
invalidated on the possibility of bias.
financial interest of ordinary citizen will not be held as financial bias. In
“Bromley”, it was held that the judges use the public transport in London did not disqualify
them from hearing the case. This case demonstrates that, the financial interest should be
visible and it should make sense and a judge must not be overburdened with this concept of
financial interest.
We will now list some cases that are linked with personal bias. It is said that the judge must not show
biasness on grounds of sex, politics, race, background association or opinion they need to remain
completely impartial. In the case of “Pinochet Ugarte” the initial bench consisting Lord Hoffman who was
also a member of Amnesty International, this same Amnesty International was giving the evidence in the
case. Although, it was accepted that there was no actual bias on the part of Lord Hoffman but some
concerns of perception of bias were raised and therefore, the case was reheard by a new bench. In
“Church of Scientology” Lord Denning excused himself from deciding the case. In the case of “Locabail v
Bayfield Properties” two rules for disqualification of the judge were decided. 1. If a judge has financial
interest in the case, then there will be an automatic disqualification. 2. If personal interest is involved,
then disqualification will only occur when there will be a real danger or possibility of bias based on the
examination of all the relevant circumstances. In “Gillies” there was no breach occurred as any fair-
minded observer (objective perspective) would have no reason to suppose that the doctor would not act
impartially. In “R v Abdroikov” the employee of the crown prosecutor sat as a juror in the case, and it
was held that this is no breach as objective person would not find any possibility of bias.

We have discussed how the thought of biasness has been modified with the passage of time. There was
a time when the decisions were used to held unlawful in order to make it unbiased. However, it is very
hard to determine when a judge is being partial/biased, as it hard to read someone’s mind. However, the
circumstances can be checked and then decisions can be held unlawful if it looks like that the decision
was biased. As the question states, that the rule against bias is now too uncertain.

In my opinion, the law of nemo judex has become uncertain to certain extent. I believe, it is not easy to
determine when a judge is becoming biased. An occasion might occur where a judge is bias but he is still
adjudicating the matter this can lead to a biased judgment. A proper law should be made on this rule
and it should be concise and not vague. A better scrutiny will always increase the fairness in the law and
its application. Sometimes, when it gets hard to determine who is being biased but to ensure clarity and
certainty a new bench, rehears the case which gets expensive and it also burdens the court’s time.
However, the law has not become ‘too uncertain’, because some cases have created certainty in the
application of nemo judex. Hence, it is not right to say that its application has completely become
uncertain.

In conclusion, it can be said that this rule against bias should not be removed from law just because it
had created uncertainty in past. Currently, this law is becoming certain and can be understood why it
used to be considered as uncertain. The reason is it is really hard to describe who is bias at the time of
deciding the case. Sniffing biasness is a subjective test hence, it used to consider very hard. However, this
rule also gives rise to clear justice system like if a judge is racist and he is deciding the case. Chances are
very high that he will tilt towards the one who belongs to his racial race, but the rule against bias would
hold the decision unlawful and an innocent can be saved from getting a bias decision. To make it more
certain, it should be made precise and easy to understand in order to avoid any uncertainty in law. I have
explained the law and justified my stance on the statement that this law no doubt needs more clarity but
it has not become absolute redundant.