publications_unodc_commentary-e

Application:2.1 A judge shall perform his or her judicial duties withoutfavour, bias or prejudice.CommentaryA perception of partiality erodes public confidence55. If a judge appears to be partial, public confidence in the judiciary is eroded.Therefore, a judge must avoid all activity that suggests that the judge’s decision maybe influenced by external factors such as a judge’s personal relationship with a partyor interest in the outcome of a case.Apprehension of bias56. Impartiality is not only concerned with the actual absence of bias andprejudice, but also with the perception of their absence. This dual aspect is capturedin the often repeated words that justice must not only be done, but must manifestlybe seen to be done. 34 The test usually adopted is whether a reasonable observer,viewing the matter realistically and practically, would (or might) apprehend a lack ofimpartiality in the judge. Whether there is an apprehension of bias is to be assessedfrom the point of view of a reasonable observer.Meaning of “bias or prejudice”57. Bias or prejudice has been defined as a leaning, inclination, bent orpredisposition towards one side or another or a particular result. In its application tojudicial proceedings, it represents a predisposition to decide an issue or cause in acertain way which does not leave the judicial mind perfectly open to conviction.Bias is a condition or state of mind, an attitude or point of view, which sways orcolours judgment and renders a judge unable to exercise his or her functionsimpartially in a particular case. 35 However, this cannot be stated without taking intoaccount the exact nature of the bias. If, for example, a judge is inclined towardsupholding fundamental human rights, unless the law clearly and validly requires adifferent course, that will not give rise to a reasonable perception of partialityforbidden by law.34 R v Sussex Justices, ex parte McCarthy, King’s Bench Division of the High Court of Justiceof England and Wales [1924) 1 KB 256 at 259, per Lord Chief Justice Hewart.35 R v Bertram [1989] OJ No.2133 (QL), quoted by Justice Cory in R v S, Supreme Court ofCanada, [1997] 3 SCR 484, paragraph 106.59