We often see high-profile politicians publicly claiming that judges are biased against them, especially after they lose court cases. They make these accusations, but they rarely provide solid evidence to back them up. This raises a very important question: Can anyone, including regular people, just say a judge is biased without having any proof? What are the actual legal rules that govern when someone can make these kinds of accusations, either inside a courtroom or in the media? And, crucially, what kind of evidence is needed to make a legitimate claim of judicial bias, and what could happen if you make those claims without it? It’s important to understand the line between expressing concerns and making serious accusations that could damage the integrity of the courts.
Accusations of judicial bias can be made both within court proceedings as well as outside of such proceedings. Where accusations of judicial bias are made during court proceedings, a test for the determination of judicial bias was set out in the case of R v Roberts. Here the Supreme Court of Appeal held that the requirements to test for judicial bias are comprised of four aspects.
- There must be a suspicion that the judicial officer might, not would, be biased.
- The suspicion must be that of a reasonable person in the position of the accused or the litigant.
- The suspicion must be based upon reasonable grounds.
- The suspicion must be one on which the reasonable person would, not might arrive at.
In understanding what the Court meant by these requirements we should first establish whether the judicial officer might have been biased. The Court made use of the word “might” and not would, which allows for a lower burden of proof in this regard. Thereafter the Court only allowed for such accusations of judicial bias to bear weight where the one making such accusations is properly before the Court.
An accusation made by someone who is clearly making such accusations unreasonably or with mala fide intent may be considered as bringing the Court’s authority into disrepute. Such persons may find themselves facing charges of contempt of Court and find themselves before a criminal court.
It is clear that accusations of judicial bias cannot be made lightly, and when made, are taken seriously by the Court.
Should you be faced with a situation in which you believe that you have been subject to judicial bias, contact us and we will assist you in your matter.
Saeedah Salie
saeedah@bbplaw.attorney
Associate
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