Reasonable Apprehension Research Articles

A Reasonable Apprehension of AI Bias: Lessons from R v. RDS

A Reasonable Apprehension of AI Bias: Lessons from R v. RDS

THE FUNDAMENTAL PRINCIPLES OF RECUSAL OF A JUDGE AT COMMON LAW: RECENT DEVELOPMENTS

The common-law principle that no one should be a judge in his or her own cause is the basis upon which the rule against bias or apprehension of bias was founded. In constitutional parlance, this translates into the requirement that a judge or anyone under a duty to decide anything must be impartial, which is, in turn, the foundation for the recusal of a judge in adjudication. This cardinal principle of adjudication has produced an abundant case law indicating the circumstances in which a judge should, or ought to, recuse him- or herself on the ground of bias or reasonable apprehension of bias in common-law jurisdictions. This article focuses on the fundamental principles guiding the notion of recusal in the common-law courts. There is, first, a presumption of judicial impartiality, which is the preliminary but important hurdle an applicant for recusal of a judge must overcome. The inquiry proceeds no further if this presumption is not successfully rebutted early in the proceeding. The second hurdle is the test for recusal that the facts put forward in support of the allegation of bias or apparent bias must meet. This test is a two-dimensional reasonable standard test of a reasonably informed observer who would reasonably entertain an apprehension that the judge would (not might) be biased towards one party in the case. This test enables a court to determine whether the allegation of lack of judicial impartiality in any given case could lead to the recusal of the judge. The discussion that ensues is based on decided cases selected from specific Commonwealth jurisdictions where such matters have recently been dealt with. Indeed, these cases show that recusal of a judge in adjudication is, in practical terms, the application of the common-law principle of natural justice that a person cannot be a judge in his or her own cause. It is also a clear manifestation of the age-old adage that justice must not only be done, but must manifestly and undoubtedly be seen to be done.

Far Beyond Baker: Heuristics and the Inadequacy of the Reasonable Apprehension of Bias Analysis

Far Beyond Baker: Heuristics and the Inadequacy of the Reasonable Apprehension of Bias Analysis

ARRESTS WITHOUT WARRANT: THE SCA BRINGS CLARITY Minister of Safety and Security v Sekhoto 2011 1 SACR 315 (SCA); [2011] 2 All SA 157 (SCA)

Section 40(1) of the Criminal Procedure Act 51 of 1977 provides for a number of different instances where a peace officer may effect an arrest without an arrest warrant. A perusal of the reported case law pertaining to the lawfulness of arrests without warrant reveals that section 40(1)(b) of the Act, in particular, has received much attention from the courts. In terms of this subsection a peace officer may arrest without warrant any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody. It is settled law that any deprivation of freedom is regarded as prima facie unlawful. The arrestor therefore bears the onus of proving that the arrest was justified. The following jurisdictional facts must be present for a peace officer to rely on the defence created by section 40(1)(b) of the Criminal Procedure Act in cases, where it is alleged that the arrest was unlawful: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect committed an offence in Schedule 1; and (iv) the suspicion must rest on reasonable grounds. For a discussion of the differenttypes of jurisdictional facts provided for in section 40(1) see Watney. In Louw v Minister of Safety and Security Bertelsman J held, with reference to the right to personal liberty, that arresting officers are under a constitutional obligation to consider whether there are no less invasive options to bring the suspect to court than the drastic measure of arrest, thereby effectively requiring a further jurisdictional fact for successful reliance by a peace officer on the provisions of section 40(1). If a reasonable apprehension exists that the suspect will abscond, or fail to appear in court if a warrant is first obtained for his or her arrest, or awritten notice or summons to appear in court is obtained, then the arrest would be constitutionally untenable and unlawful. Bertelsman J relied on academic opinion and an obiter remark made by De Vos J in Ralekwa v Minister of Safety and Security and held that the approach in Tsose v Minister of Justice that there is no rule that requires the milder method of bringing a person to court if it would be as effective as arrest, could no longer be acceptable in a constitutional dispensation. This approach was followed in a number of reported High Court judgments but not approved of in Charles v Minister of Safety and Security. In Minister of Safety and Security v Van Niekerk the Constitutional Court found it not to be in the interests of justice on the facts of the case before it to pronounce on the constitutional tenability of the approach in Tsose, but nevertheless held that the constitutionality of an arrest will be dependent upon its factual circumstances. Watney succinctly discusses some of the abovementioned developments. However, on 19 November 2010 the Supreme Court of Appeal in Minister of Safety and Security v Sekhoto (2011 1 SACR 315 (SCA), also reported in [2011] 2 All SA 157 (SCA)) held that the approach of the different high courts requiring a further jurisdictional fact for the lawfulness of an arrest did nothave proper regard for the principles in terms of which statutes must be interpreted in the light of the Bill of Rights and that they have conflated the issue of jurisdictional facts with the issue of discretion. This lucid judgment brings clarity to the issue of the lawfulness of arrests without warrant.

Cabinet Immunity in Canada: The Legal Black Hole

Fifteen years ago, in Babcock v. Canada (A.G.), the Supreme Court of Canada held that section 39 of the Canada Evidence Act, which deprives judges of the power to inspect and order the production of Cabinet confidences in litigation, did not offend the rule of law and the provisions of the Constitution. The aim of this article is to revisit this controversial ruling and challenge the Supreme Court’s reasoning. The first part seeks to demonstrate that the Supreme Court adopted a very thin conception of the rule of law in its jurisprudence, a conception which is of limited use as a normative framework to assess the legality of statutory provisions. To that end, the author turns to the thicker theory of law as justification which insists upon the requirements of fairness, transparency, and accountability. Pursuant to the theory of law as justification, an executive decision to exclude relevant evidence in litigation must comply with two requirements: it must be made following a fair decision-making process; and it must be subject to meaningful judicial review. The second part seeks to demonstrate that section 39 does not comply with these requirements. The decision-making process established by Parliament under section 39 is procedurally unfair, in violation of paragraph 2(e) of the Canadian Bill of Rights, because: the identity of the final decision-maker—a minister or the Clerk of the Privy Council—gives rise to a reasonable apprehension of bias; and the decision-maker is not required to properly justify his or her decision to exclude relevant evidence. In addition, section 39 infringes the core, or inherent, jurisdiction and powers of provincial superior courts, in violation of section 96 of the Constitution Act, 1867, as it unduly limits their authority to: control the admissibility of evidence in litigation; and review the legality of executive action. As a result of these flaws, the author argues that section 39 is an unlawful privative clause, a form of legal black hole, which offends the rule of law and the provisions of the Constitution.

Examining the Obligation to Preserve Electronic Evidence under the Nigerian Law

The prevalence of digital information has come with attendant obligation to ensure that relevant electronic data are not deleted, lost or destroyed where there is reasonable apprehension of litigation. This obligation has given birth to the principle of ‘Legal Holds’, which has since been recognised in some jurisdictions of the world. This article looks at the importance of the obligation to preserve electronic data and examines whether there are laws, rules, practice or procedures currently placing such obligation on parties under the Nigeria Law. It argues that although there is in fact no law specifically making provisions for or directly imposing obligation on parties to preserve electronic data upon reasonable apprehension of litigation, a careful examination of the rules of evidence, the Rules of the various Courts as well as the Rules of Professional Conduct (RPC) for Lawyers reveal that there is in existence an obligation to preserve.

Cruelty as a Ground for Divorce in Hindu Society

Hindus constitute the majority of the Indian population. Hence, it is but natural that the institutional changes affecting the Hindu way of life is a matter of interest and concern to the Indian law-makers. Till recently, Hindu family and marriage were steeped in age-old customs and traditions. For a Hindu, marriage was obligatory and sacramental. It was considered as a bond of seven births, ordained by gods. It is a Hindu son’s duty or his obligation towards his ancestors to bear a son who is supposed to carry forward their lineage and hence is not freed from the “Putra Rina” till he fathers a son. Initially, the institution of marriage was gender-neutral and was considered to be equally binding on both the partners but as time passed, the role of a wife became more of duty towards her husband, in a way it made her obliged to her husband, despite the husband being of loose character, impotent or cruel towards his wife. Wives were supposed to treat their husbands as gods, this led to the oppression of the females by their husbands and her in-laws. Cruelty is one such way of oppression of women by their husbands and their in-laws. For a long time, women had no say in such matters and were the oppressed ones. It was in the year 1955 that she got a right to get a judicial separation on the ground of cruelty, later cruelty developed as a ground for divorce hence giving her a remedy and to get out of her miseries. Cruelty against women is one of the most prevalent against the women of Indian society, in the year 2011 to 2012 there was an increase of about 7.5% in the act of cruelty over women by her husband of her in-laws. 38% of males had admitted that they had physically abused their wives. Almost every 9 minutes an act of cruelty is committed over a female by her husband or her in-laws. Cruelty can be both physical and mental, though physical cruelty can be proved before the court through medical reports and injury marks, proving mental injuries sometimes can be a bit trickier as the law has not defined the word “cruelty”, and can only be understood through the court judgements. The mental element of cruelty can only be understood as ‘reasonable apprehension of danger’. Hence, the law in a way has provided an equal platform for the women to have a stand for herself which the Hindu society lacked for a long period.

A return to the manifest justice principle: a critical examination of the "reasonable suspicion/apprehension of bias" and "real possibility of bias" tests for judicial bias in South Africa and England

The impartiality of judges often expressed in the Latin maxim nemo iudex in propria causa interpreted to mean that no man should be a judge in his own cause together with the right of fair hearing make up the right to natural justice. This principle is recognized by a number of provisions of the Constitution of the Republic of South Africa, 1996. Section 165 (4) provides that the organs of state shall through legislative and other measures assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. Furthermore, section 34 of the same Constitution provides that everyone has the right to have any dispute resolved by the application of law by a court or, where appropriate another independent and impartial tribunal or forum. Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms 1950 as incorporated in the Human Rights Act 1988, applicable in England since 2000 provides that: "In the determination of his civil rights and obligations … everyone is entitled to a fair hearing … by an independent and impartial tribunal established by law." The independence of courts and impartiality of judges are closely related in that they operate to sustain public confidence in the administration of justice.
 This article advocates a return to the use of the manifest justice principle enshrined as the proper contextfor the application of the tests of "reasonable apprehension of bias" adopted by South African courtsand "real possibility of bias" adopted by English courtsin the consideration of allegation of apparent bias. This paper argues that the tests are differentand that while the English test is a move of English courts from the real danger/likelihood
 test in consonance with an overwhelming global jurisprudence the South African test is a move away from this global jurisprudence and arguably back to the real danger/likelihood test. This paper also argues that the reasonable apprehension test as applied by the minority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing)is a more acceptable interpretation of the reasonable apprehension test than the test laid down in President of the Republic of South Africa v South Africa Rugby Football Union (2) and its interpretation by the majority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing). More importantly there is an examination of cases where the tests have been applied which hopefully shows that there are considerable problems and inconsistency in their application and argue that the manifest justice principle provides the proper context for the tests to be properly applied.

Administrative Bias in South Africa


 This article reviews the interpretation of section 6(2)(a)ii of the Promotion of Administrative Justice Act which makes an administrator “biased or reasonably suspected of bias” a ground of judicial review. In this regard, the paper reviews the determination of administrative bias in South Africa especially highlighting the concept of institutional bias. The paper notes that inspite of the formulation of the bias ground of review the test for administrative bias is the reasonable apprehension test laid down in the case of President of South Africa v South African Rugby Football Union(2) which on close examination is not the same thing. Accordingly the paper urges an alternative interpretation that is based on the reasonable suspicion test enunciated in BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers Union and R v Roberts. Within this context, the paper constructs a model for interpreting the bias ground of review that combines the reasonable suspicion test as interpreted in BTR Industries and R v Roberts, the possibility of the waiver of administrative bias, the curative mechanism of administrative appeal as well as some level of judicial review exemplified by the jurisprudence of article 6(1) of the European Convention of Human Rights, especially in the light of the contemplation of the South African Magistrate Court as a jurisdictional route of judicial review.
 

From Principles to Rules: The Case for Statutory Rules Governing Aspects of Judicial Disqualification

The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact and context specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for the judge to sit in a marginal case. This article explores rule-based judicial disqualification regimes in the United States, Germany and the Quebec Code of Civil Procedure to gain insights into how rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise to judicial disqualification. Using these insights, the authors then propose the use of rules to address problem areas with respect to professional relationships with former colleagues and clients, prior judicial involvement with litigants, extra-judicial writings, and procedural rules for making determinations concerning judicial disqualification.

Private Defence: A Look at Definitional Aspects and Burden of Proof

This paper examines the contemporary definitional elements of “reasonable apprehension” and the role executed by the Supreme Court of India while exercising its criminal jurisdiction in matters concerning private defence of the body under the criminal laws of India. While looking at the totality of factors, this paper makes an assessment of the guidelines which courts have adopted in their pursuit of a fair trial, such as avoiding a microscopic scrutiny of the conduct of the accused and substituting its own hindsight for the foresight of the accused in the circumstances as they existed. One of the notable departures from its general conduct of proceedings is the heavy pro-accused tilt of the court, a feature writ large across the criminal justice system. This paper will examine how the judiciary changes the conventional adversarial model to carve out a greater space for itself in the trial. This paper also examines the burden of proof which rests on the accused. A concerning trend in private defence is the susceptibility of the right to misuse whereby a person may provoke another into a rash attack and use this attack to retaliate in turn, something for which the Indian Penal Code has not provided explicit safeguards. Subsequent to this analysis, the conclusion is presented along with the observations and suggestions of the author.

Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule against Hearsay

Vince brings a battery action against Dan based upon an encounter between the two men. Dan claims that he was acting in self-defense and wants to testify that Ed sent him the following text message minutes before the encounter: “Vince is coming to see you to collect on that drug debt that you owe him.” Dan could argue that he is offering the statement not to prove the truth of the matter asserted but to prove its “effect on the listener,” making it nonhearsay Specifically, Dan could claim that he is offering the statement to prove that, regardless of whether Ed was being honest and/or accurate when he made the statement, Dan had every reason to believe the statement, placing him in reasonable apprehension of Vince. Assume, however, that Dan deletes Ed’s message after the altercation because it mentions a drug debt, which could lead to Dan being investigated for drug-related crimes. If Dan wants to testify concerning the text message to prove reasonable apprehension, there is no hearsay problem, but is there a Best Evidence problem? Most courts answer this question in the negative by conflating the rule against hearsay and the Best Evidence Rule and concluding that the Best Evidence Rule is not applicable if secondary evidence concerning a writing is not offered to prove the truth of the matter asserted. This essay contends that this conflation reflects a fundamental misunderstanding of the Best Evidence Rule and that courts must disentangle that Rule from the rule against hearsay.

The Problems of Proving Actual or Apparent Bias: An Analysis of Contemporary Developments in South Africa

This article takes a critical look at the divergent approaches of courts in constructing the meaning of actual and apparent bias in adjudicative contexts. It argues that while proving actual bias on the part of an adjudicator may not always be easy and parties often revert to apprehended bias, an allegation of bias in any adjudication process is a matter that courts take very seriously. This notwithstanding, the courts have failed to consistently demarcate the necessary elements and threshold of proof that complainants must overcome to secure a successful challenge of decisions based on adjudicative impartiality. Upon critical evaluation of the decisions on the subject so far rendered, this article suggests that the pattern which has seemingly emerged is that which weighs the allegations of bias against the presumption of impartiality and the requirements of the double reasonableness test.KEYWORDS: Impartiality; actual bias; apparent bias; reasonable apprehension of bias; presumption of impartiality; double reasonableness test; fair-minded observer; bad faith

R.D.S. V. HER MAJESTY THE QUEEN: A CASE ABOUT HOME

R.D.S. V. HER MAJESTY THE QUEEN: A CASE ABOUT HOME

The Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification

The "reasonable apprehension of bias" test for judicial disqualification has been a fixture in the common law world for centuries; despite this settled state of the law, judges and commentators have been concerned that the application of the test might be contentious in a significant number of cases. In this article, the authors report on an empirical study surveying Canadian provincial and territorial judges on common scenarios which raise the possibility of recusal. Situated in the applicable case law, the findings demonstrate a wide divergence of opinion on substance and procedure among respondents in their attitudes toward recusal in situations that are analytically marginal, but not rare. The article concludes with some possible explanations for the divergence.

Australia Adopts the 'Real Danger' Test for Arbitrator Bias

This note concerns recent changes to Australian international arbitration law that replace the existing common law ‘reasonable apprehension’ test for arbitrator bias with the ‘real danger’ test laid down by the House of Lords in R v Gough [1993] AC 646. Australia is the first country to adopt this test as a provision of its written arbitration law. This note provides some examples of the application of the ‘real danger’ test, and discusses how Australian courts may interpret and apply this ‘Model Law Plus’ provision in the coming years.

Continuing Questions in Canadian Political Finance Law: Third Parties and Small Political Parties

Canadian political finance law has struggled with the question of how to treat small political parties and third parties. The author contends that data gathered by Elections Canada concerning third party expenditures over the last four federal elections provides an opportunity to re-evaluate Harper v. Canada (A.G.), which was decided without a strong evidential foundation on the grounds of a reasonable apprehension of harm. The Ontario Court of Appeal’s decision in Longley v. Canada (A.G.) upholding Canada Elections Act provisions that require political parties to meet vote thresholds to qualify for annual allowances, raises constitutional questions about the role of small political parties. The author questions whether a distinction should be made in law between large and small political parties and whether the fear that third parties may become political parties is a sufficient justification to limit the rights of small political parties.

'Covenants Not to Sue' Provide Less Immunity in a Post-Medimmune World

This Note addresses the impact of the totality of circumstances test, as now adopted by the Federal Circuit, on covenants not to sue in the Declaratory Judgment (DJ) context. Under the old reasonable apprehension test, promises not to sue were given greater weight than under the new totality of the circumstances test. Part I of this Note addresses the new totality of the circumstances test under Medimmune and Sandisk. Part II of this Note compares the application of promises not to sue in pre-Medimmune and post-Medimmune decisions. Although the current case law does not indicate an extreme change from the pre-Medimmune decisions, the dicta in these cases indicates that a more extreme change may be forthcoming. Finally, Part III responds to a number of scholarly articles that have indicated disapproval of the Federal Circuit’s totality of the circumstances test by applying twofold analysis, taking into account exposed revenue and burdensome litigation costs, to four potential bargaining scenarios between hypothetical licensors and licensees.

Administrative bias in South Africa

This article reviews the interpretation of section 6(2)(a)ii of the Promotion of Administrative Justice Act which makes an administrator “biased or reasonably suspected of bias” a ground of judicial review. In this regard, the paper reviews the determination of administrative bias in South Africa especially highlighting the concept of institutional bias. The paper notes that inspite of the formulation of the bias ground of review the test for administrative bias is the reasonable apprehension test laid down in the case of President of South Africa v South African Rugby Football Union(2) which on close examination is not the same thing. Accordingly the paper urges an alternative interpretation that is based on the reasonable suspicion test enunciated in BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers Union and R v Roberts. Within this context, the paper constructs a model for interpreting the bias ground of review that combines the reasonable suspicion test as interpreted in BTR Industries and R v Roberts, the possibility of the waiver of administrative bias, the curativemechanism of administrative appeal as well as some level of judicial review exemplified by the jurisprudence of article 6(1) of the European Convention of Human Rights, especially in the light of the contemplation of the South African Magistrate Court as a jurisdictional route ofjudicial review.

Enemies of the State? The Alberta Energy and Utilities Board, Landowners, Spies, a 500kV Transmission Line and Why Procedure Matters

In the spring of 2007 the Alberta Energy and Utilities Board (the ‘Board’) employed private investigators to covertly observe interveners in a hearing into the proposed construction of a transmission facility. This decision led to public outrage and, as well, to the Board’s vacation of all its decisions related to the transmission facility on the basis that a reasonable apprehension of bias had arisen. This article places the Board’s retention of the private investigators in the context of a number of other procedural decisions made by the Board in its consideration of the proposed transmission facility. It then reviews the totality of those decisions to suggest that, in designing an appropriate process, a regulatory decision-maker must be mindful of both the rules of procedural fairness and of the principles that underpin procedural fairness as a whole.