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Principles, Process and Problems
By Grant Hammond
Hart Publishing Ltd
WHEN A JUDGE IS ASKED TO STAND DOWN
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
One of the principles of natural justice is that no one can be a judge in his or her own cause. When this principle, or other similar principles, are seen to have been eroded, or ignored in a court of law, then ‘judicial recusal’ may be the inevitable outcome -- which means the judge can be asked to withdraw, or stand down.
This thought provoking book outlines three specific problem areas which would occasion, or justify recusal: judicial misconduct in court… prior viewpoints…and unconscious bias. The law relating to recusal, in the author’s words, ‘rests on the fundamental proposition that a court should be fair and impartial’.
Recusal is ‘an odd word, signifying withdrawal, originating in the religious concept of a recusant’, remarks Sir Stephen Sedley in the foreword. It’s ‘an assurance of the impartiality of justice,’ he adds, ‘and a field of opportunity for manipulation.’
Recusal may occur when aggrieved claimants feel that they have not received a proper hearing. As such claimants become more aware of their rights and consequently more litigious with instances of recusal becoming increasingly common. We’ve only been involved in one judicial recusal and, frankly, were wholly bemused by this procedural oddity, while at the same time recognizing that its aim and its effect is ideally to enforce the rules of natural justice.
Having been elected as the Robert S. Campbell Visiting Fellow in Law at Magdalen College, Oxford, the author, Grant Hammond has endeavoured to put together a monograph on this hitherto under-explored subject, citing ‘the lack of a textbook or monograph of an over-arching kind in this field.’
The book is not a text book as such, but rather an articulation of the author’s research mission to explain ‘the central concepts that courts have seen fit to employ (on this subject) around the common law world and offer some commentary on them.’
Offering an analysis of the essential features of the law, the legal principles (prevailing in the UK, USA, and Commonwealth) and the consequent difficulties which often arise, the book also scrutinizes process, including waiver, necessity, appellate review and final appeals which is where we came in with a recent recusal application. Usefully, Hammond reviews future developments and possible reforms of recusal law in this splendid Hart publication which maintains the highest standards of intellectual legal titles.
Sedley points out that this book, for practically the first time in our legal literature, sets out to address: when should a judge withdraw, who decides and how do they decide? He adds that there is no short answer.
It’s an eminently readable book and nonetheless sheds considerable light on what it means to be a judge and what the discharge of that constitutional duty entails. Certainly, this book is to be welcomed for a much needed and highly lucid examination of a controversial and complex subject. It also highlights the need for more clarity on the modern interpretation of the rules of natural justice- new Justice Secretary, please take note!