publications_unodc_commentary-e

informed, will remove the objection to the disclosed basis of potentialdisqualification.When a judge should make disclosure80. A judge should make disclosure on the record and invite submissions from theparties in two situations. First, if the judge has any doubt about whether there arearguable grounds for disqualification. Second, if an unexpected issue arises shortlybefore or during a proceeding. The judge’s request for submissions shouldemphasize that it is not the consent of the parties or their advocates that is beingsought but assistance on the question whether arguable grounds exist fordisqualification and whether, for example, in the circumstances, the doctrine ofnecessity applies. If there is real ground for doubt, that doubt should ordinarily beresolved in favour of recusal.Reasonable apprehension of bias81. The generally accepted criterion for disqualification is the reasonableapprehension of bias. Different formulas have been applied to determine whetherthere is an apprehension of bias or prejudgment. These have ranged from “a highprobability” of bias to “a real likelihood”, “a substantial possibility”, and “areasonable suspicion” of bias. The apprehension of bias must be a reasonable one,held by reasonable, fair minded and informed persons, who apply themselves to thequestion and obtain the required information. The test is “what would such aperson, viewing the matter realistically and practically – and having thought thematter through – conclude? Would such person think that it is more likely than notthat the judge, whether consciously or unconsciously, would not decide fairly”. 41The hypothetical reasonable observer of the judge’s conduct is postulated in order toemphasize that the test is objective, is founded in the need for public confidence inthe judiciary, and is not based purely upon the assessment by other judges of thecapacity or performance of a colleague.82. The Supreme Court of Canada has observed 42 that determining whether thejudge will bring prejudice into consideration as a matter of fact is rarely an issue. Of41 See Locabail (UK) Ltd v Bayfield Properties, Court of Appeal of England and Wales[2000] QB 451, [2000] 3 LRC 482; Re Medicaments and Related Classes of Goods (No.2),House of Lords, United Kingdom [2001] 1 WLR 700; Porter v Magill, House of Lords,United Kingdom [2002] 2 AC 357; Webb v The Queen, High Court of Australia (1994) 181CLR 41; Newfoundland Telephone Co v Newfoundland (Board of Commissioners of PublicUtilities), Supreme Court of Canada [1992] 1 SCR 623; R v Gough, House of Lords, UnitedKingdom [1993] AC 646; R v Bow Street Stipendiary Magistrate, Ex parte Augusto PinochetUgarte (No.2), House of Lords [2001] 1 AC 119.42 Wewaykum Indian Band v. Canada, Supreme Court of Canada, [2004] 2 LRC 692, perChief Justice McLachlin.69