Perception of bias
1. LAL was convicted of sexual assault of a child under the age of 16 and sentenced to a term of imprisonment.
2. LAL appealed his conviction to the Court of Appeal, on the grounds that the trial judge had an apprehended bias that affected the fairness of his trial – LAL became aware, after the trial, that the trial judge had a child who had experienced a similar sexual assault at a similar age
3. The Court of Appeal needed to consider the nature of the offence alleged, and the trial judge’s experience of a similar offence in her immediate family.
4. The Court of Appeal concluded that the mere fact that a judge is related to a victim of crime is not sufficient to disqualify the judge from presiding at a trial of a person accused of a like crime. However, in the present case, the offence at trial was so similar to the judge’s personal experience that a fair minded observer might consider that the trial judge was unable to bring an impartial mind to the conduct of the trial. The Court of Appeal allowed the appeal, set aside the conviction and ordered that LAL be retried before a different judge.
5. The judge must act as an independent and unbiased umpire in the conduct of a criminal trial. They must oversee proceedings impartially and without the perception of having any bias towards either
party. The appearance of impartiality is just as important as actual impartiality – this is why in the LAL case, the Court of Appeal concluded that the offence at trial was so similar to the judge’s personal experience that a fair minded observer might consider that the trial judge was unable to bring an impartial mind to the conduct of the trial.