Challenges to long-established judicial accountability norms
Submitting Institution
Brunel UniversityUnit of Assessment
LawSummary Impact Type
LegalResearch Subject Area(s)
Law and Legal Studies: Law
Philosophy and Religious Studies: History and Philosophy of Specific Fields
Summary of the impact
Olowofoyeku's research on judicial accountability challenges
long-established norms in the Anglo-
American legal traditions. These challenges have been recognised by
judicial authorities at the
highest levels and have influenced and informed practitioner and judicial
debates on the matter.
While no changes have yet been made to the law as a result of this
research, the limits of the
current principles, as highlighted in Olowofoyeku's research, particularly
in respect of the flaws of
the common law construct of the informed observer, have been confronted
and recognised by
judges in their decisions, and also by practitioners.
Underpinning research
Olowofoyeku's research has focused on the general question of "who judges
the judges?" It
endeavours to balance the demands of judicial independence with the
requirements of judicial
accountability. It has postulated that the balance in many cases is unduly
tilted towards
independence, at the expense of accountability, and that remedial measures
are required. His
monographs "The Law of Judicial Immunities in Nigeria" (Spectrum,
1993), and "Suing judges"
(Oxford, 1993) were the first major outputs of this research, and were
followed by further outputs in
scholarly journals and edited collections. These outputs focused on
judicial accountability via
liability, and argued that the long-established norms of absolute judicial
immunity were
unjustifiable.
Olowofoyeku's research extends the accountability agenda to issues of
judicial bias and
impartiality. Again, it unearthed fundamental flaws in the established
norms. So in 2000 (Public
Law), Olowofoyeku uncovered the flaws in the common law principle of
automatic disqualification
for bias, both as a general principle of judicial accountability, and,
more particularly, as extended
by the House of Lords in the Pinochet case. Subsequently, in two
journal articles in 2006 (Public
Law, and Singapore Journal of Legal Studies), he challenged
the approaches of the US Supreme
Court to judicial recusals within the Court, and suggested different
approaches. In a 2009 article
(CLJ), he examined the modern approach of the House of Lords to
judicial bias, and challenged
the common law's main construct in this area - the interposition of the
"informed observer". He
argued in favour of a return to the discarded approach of the House of
Lords in R v Gough, in
which the reviewing court personifies the reasonable person. In a 2012
article (AJICL), he
challenged aspects of the recusal law of the East African Court of
Justice, a sub-regional court that
sought to extend the common law judicial bias jurisprudence into the
sub-regional space.
The outputs presenting Olowofoyeku's research are substantial, original,
scholarly, pieces which
have been and are still being cited widely in the academic literature. The
research has also been
cited by legal practitioners and judges. For example, the 2000 Nemo
iudex article was cited in De
Smith's Judicial Review (6th edn., 2007, p.515); by The Rt. Hon. Dame Sian
Elias, Chief Justice of
New Zealand, in "Impartiality in Judging and the Passions of Mankind"
(Address Given to The
Singapore Academy of Law, 3 November 2004); and by academics (e.g.,
Stephen Tierney,
Constitutionalising the role of the judge: Scotland and the new order
[2001] Edinburgh Law
Review, 49-72, at 57; Simon Atrill, Who is the "fair-minded and
informed observer"? Bias after
Magill [2003] CLJ 279-289, at 288. It was identified as one of the
significant articles of 2000 by
Nicholas Bamforth, Significant Academic Articles of 2000 [2001]
6(3) JR 180-187, at 181.
In addition to citations in academic literature, the 2009 article has
been cited in Halsburys Laws of
England, 2009 Annual Abridgement, and by practitioners (e.g., Holly Stout
(2011); Philip Havers
QC and Alasdair Henderson (2011)).
References to the research
• OLOWOFOYEKU, A, Sub-regional Courts and the Recusal Issue: Emergent
Practice of the
East African Court of Justice (2012, African Journal of
International and Comparative Law,
20(3), pp 365-387). http://dx.doi.org/10.3366/ajicl.2012.0041
• OLOWOFOYEKU, A, Subjective Objectivity: Judicial Impartiality and
Social Intercourse in
the US Supreme Court (2006, Public Law pp 15-34).
• OLOWOFOYEKU, A, Accountability versus Independence: The Impact of
Judicial
Immunity, in Canivet, G., Andenas, M., and Fairgrieve, D.,
Independence, Accountability
and the Judiciary (pp 357-383 (London, BIICL 2006)).
• OLOWOFOYEKU, A, The nemo iudex rule: the case against automatic
disqualification
(2000, Public Law, pp 456-475).
Details of the impact
Impact on Practitioners;
The 2009 article has influenced practitioner debate, particularly on the
issue of the utility of the
"informed observer" in cases of apprehended bias. Holly Stout (11 King's
Bench Walk) cited the
article thus; `Indeed, one academic, having listed over some three
lengthy paragraphs all the
characteristics that judges have said should be imputed to the
fair-minded observer, has observed:
"If one were to attempt to describe the attributes of the Archangel
Michael, one could not do much
better"', and then proceeded to highlight the difficulties of this
construct, mirroring many of
Olowofoyeku's arguments.
Similarly, Philip Havers QC and Alasdair Henderson (1 Crown Office Row),
noted that it was
increasingly becoming apparent that the concept of the "fair-minded and
informed observer" is a
difficult one to apply in practice. Referring to Olowofoyeku, they noted
that "Other commentators
have conducted a far more exhaustive analysis than is possible here of
the flaws in the concept",
and explicitly adopted Olowofoyeku's critique.
Thus Olowofoyeku's critique of the informed observer and identification
of the construct as one that
is seriously flawed have been accepted and adopted as the new received
wisdom on the issue of
bias by practitioners in the field of public law.
Impact on judicial reasoning and decision-making;
The "Bias and the Informed Observer" article (2009) was cited by
the High Court of Australia in
British American Tobacco Australia Services (2011). French CJ
analysed the development of the
test for apprehended bias in the UK and Australia, and (at [36]) completed
that analysis with a
reference to Olowofoyeku's "critique of the fair-minded and informed
observer in Olowofoyeku
'Bias and the Informed Observer ...".
French CJ (at [48]) accepted Olowofoyeku's argument that interposition of
the fair-minded lay
person by the common law could never disguise the reality that it is the
assessment of the court
dealing with a claim of apparent bias that determines that claim. In so
doing, French CJ took a
direct quotation from Olowofoyeku's 2009 article, viz., 'In the end,
despite the pitch on objectivity
and the view that the apprehensions of bias must have an objective
basis, it is the opinion of the
reviewing court on this issue that matters.'
Subsequently, French CJ referred to Olowofoyeku's "view that the
judicial construct of the informed
observer no longer provides a reliable guide to decision-making on the
issue of apparent bias". His
response to this argument by Olowofoyeku was that "the utility of the
construct is that it reminds
the judges making such decisions of the need to view the circumstances
of claimed apparent bias,
as best they can, through the eyes of non-judicial observers. In so
doing they will not have
recourse to all the information that a judge or practising lawyer would
have. It requires the judges
to identify the information on which they are to make their
determinations." French CJ conceded,
in line with Olowofoyeku's arguments, that "it is necessary to be
realistic about the limitations of the
test", but felt that the test "retains its utility as a guide to
decision-making in this difficult area".
Olowofoyeku's research has informed judicial decision-making at the
highest level, and has
brought to the minds of very senior judges (and, by extension, legal
practitioners, litigants, and law
students) the point that long-established common law principles are
susceptible to serious
contestations.
Issues of judicial bias and recusals are topical globally, and decisions
of the High Court of Australia
are influential throughout the common law world. Recognition and
acceptance by the High Court of
Australia of Olowofoyeku's research in this area, first, as having helped
to shape the development
of recusal law, and, secondly, as having strongly challenged the main
construct (the impartial
observer) of common law legal systems in this area, extends the reach of
the impact to virtually the
entire English-speaking world. In spite of French CJ's view that the
"impartial observer" test retains
its utility, Olowofoyeku's work has forced courts to confront this large
chink the armour of the
common law and to accept that the erstwhile received common law wisdom is
assailable. It has
also helped to improve awareness and understanding of the hitherto hidden
tensions and
difficulties inherent in a construct that had long remained uncontested.
Sources to corroborate the impact
-
British American Tobacco Australia Services Ltd v Laurie and Others
[2011] HCA 2, at [36]
and [48]
- Holly Stout (11 King's Bench Walk) "Bias" [2011] 16(4)
Judicial Review 458-482, at 461
- Philip Havers QC & Alasdair Henderson (1 Crown Office Row)
"Recent Developments
(and Problems) in the Law on Bias" [2011] 16(2) JR 80-93, at 82.