publications_unodc_commentary-e

course, where this can be established, it will inevitably lead to the disqualification ofthe judge. But most arguments for disqualification typically begin with anacknowledgment by all parties that there is no actual bias and move on to aconsideration of the reasonable apprehension of bias. Occasionally, this is expressedformally simply because a party, while suspecting actual bias, cannot prove it andtherefore contents himself or herself with submitting the reasonable apprehension ofbias, which is easier to establish. Since the two propositions go hand in hand, tounderstand what is meant by reasonable apprehension of bias it is helpful to considerwhat it means to say that disqualification is not argued on the basis of actual bias.Saying that there is no “actual bias” can mean three things: that actual bias need notbe established because reasonable apprehension of bias can be viewed as a surrogatefor it; that unconscious bias can exist even where the judge is acting in good faith; orthat the presence or absence of actual bias is not the relevant inquiry.83. First, when parties say that there is no actual bias on the part of the judge,they may mean that the current standard for disqualification does not require thatthey prove it. In that sense, the “reasonable apprehension of bias” can be seen as asurrogate for actual bias, on the assumption that it may be unwise or unrealistic torequire that kind of evidence. It is obviously impossible to determine the precisestate of mind of the judge, particularly because the law does not countenance thequestioning of a judge about extraneous influences affecting his or her mind, andbecause the policy of the law is to protect litigants who can discharge the lesserburden of showing a real danger of bias without requiring them to show that suchbias actually exists.84. Second, when parties say that there is no actual bias on the part of the judge,they may be conceding that the judge is acting in good faith and is not consciouslybiased. Bias is or may be an unconscious thing and a judge may honestly say that heor she is not actually biased and does not allow his or her interest to affect his or hermind, while, nevertheless, doing so unconsciously.85. Finally, when parties concede that there is no actual bias, they may besuggesting that looking for real bias is simply not the relevant inquiry. They rely onthe aphorism that “justice should not only be done, but should manifestly andundoubtedly be seen to be done”. To put it differently, in cases wheredisqualification is argued, the relevant inquiry is not whether there was in fact eitherconscious or unconscious bias on the part of the judge, but whether a reasonableperson properly informed would apprehend that there was. In that sense, thereasonable apprehension of bias is not just a surrogate for unavailable evidence, oran evidentiary device to establish the likelihood of unconscious bias, but themanifestation of a broader preoccupation about the image of justice, namely, theoverriding public interest that there should be confidence in the integrity of theadministration of justice.86. Of the three justifications for the objective standard of reasonableapprehension of bias, the last is the most stringent for the judicial system, because it70