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1/ Some thoughts on judicial bias which has been hotly debated today (on my timeline!) following some tweets by the Good Law Project
2/ There are a number of questions brought together but the main ones seem to be:
(a) Is it is OK for lawyers to raise the issue of a judge’s perceived individual bias re a particular case?
(b) Generally, is there is an issue of judicial bias which needs to be considered?
(a) Is it is OK for lawyers to raise the issue of a judge’s perceived individual bias re a particular case?
(b) Generally, is there is an issue of judicial bias which needs to be considered?
3/ All humans have biases due to background, temperament and experience. A psychologist would laugh you out of the room if you tried to tell them bias can be eliminated. Nonetheless, good judges strive to eliminate individual bias *as much as they can* and often it works a treat
4/ But. Every public lawyer knows some judges are more likely to give you a particular outcome than others. We talk about it. It would be odd to deny it. It’s hardly a secret. Simply, some judges are known anecdotally to lean towards claimants or public authorities.
5/ There is a danger though - that by criticising judges rather than judgments we are playing the person not the ball, and encouraging attacking judges in a way which most lawyers rightly discourage - e.g. this 
6/ There has to be a middle ground here, as in my (anecdotal) experience, some judges are super-conservative and far more likely to find for the govt. And vice versa. This can lead to positive diversity of opinion especially on multi-judge benches BUT…
7/ The problem bites particularly at the ‘permission stage’ of Judicial Review, where a single judge decides on the papers and then sometimes a different judge at an oral hearing. Many claimants don’t have resources to use the appeal processes. So it can be a one shot game.
8/ And if it’s a 1-shot game, or at most 2-shot, and some judges are far more likely to grant leave than others, then it's a problem which must be addressed. Because there could be some simple reforms to make it less of a lottery whilst still guarding judicial discretion.
9/ But is it a problem? Anecdotally, yes, but I would question whether we have the empirical research to say there is or isn’t. Bony, Platt and Sunkin have done a bit of research on this publiclawproject.org.uk/wp-content/upl…
There is some research about the UK Supreme Court too
10/ And I know @chrishanretty is on the case, but if there is a proper study of outcomes in judicial review permission hearings please link. Interestingly, in Canada a study found divergent grant rates, which led to reforms (or promises) administrativelawmatters.com/blog/2018/09/2… ht @pauldalyesq
11/ I can’t access Prof Rehaag’s study but the quoted recommendations are interesting - how about changing the test from whether a case is arguable to whether any fellow judge would find it was arguable? A test which overtly factors in the possibility of bias. I quite like it!
12/ Here’s another interesting one, though I’m not sure I’m convinced
13/ Off the top of my head, some more suggestions:
(1) Grant rates could be published annually across all judges - named/anonymised. We would know if there was divergence
(2) Permission judges could be assigned by lottery rather than chosen by whoever currently chooses them
(1) Grant rates could be published annually across all judges - named/anonymised. We would know if there was divergence
(2) Permission judges could be assigned by lottery rather than chosen by whoever currently chooses them
14/ (3) Claimants/Defendants could input into judicial selection for a particular case (though I can see issues with this and burdensome satellite litigation), though perhaps this could be achieved by offering 5 and allowing each party to pick 3 in order of preference?
15/ I deleted one tweet from earlier naming three judges as being known for being conservative. They are 'known', but in my circles which are a limited sample. I want to address this issue responsibly so at the moment am keeping in general.
16/ But - final word - I agree with @richardmoorhead that if a judge is well-known for being more pro-govt or more pro-claimant, then it isn’t unreasonable to moot whether that may influence their judgment. But if we had better research it needn’t be as sensitive to do so.
17/ Oh and I just saw this, which is good
