Bias by Holly Stout The Constitutional Administrative Law Bar 用冬青树粗壮的宪法与行政法条的偏见；.doc

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Bias by Holly Stout The Constitutional Administrative Law Bar 用冬青树粗壮的宪法与行政法条的偏见；.doc

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Bias by Holly Stout The Constitutional Administrative Law Bar 用冬青树粗壮的宪法与行政法条的偏见；

BIAS Holly Stout, 11KBW Introduction The principle that decisions should be made free from bias or partiality is one of the fundamental principles of natural justice. Originally expressed as the rule ‘No man a judge in his own cause’ (Nemo judex in re sua), the principle is now enshrined in Article 6 of the European Convention on Human Rights (“ECHR”) and in Articles 41 and 47 of the EU Charter of Fundamental Rights (“EUCFR”). However, it has long been widely recognised that it is vital that not only are decisions actually made free from bias or partiality, but that they appear to be. As Lord Hewart CJ put it in the famous passage in R v Sussex Justices, Ex parte McCarthy: It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously absta