Justice must not only be done, but must be seen to be done

My father always wanted me to be a lawyer. I remember he would never miss an episode of the television legal drama starring Raymond Burr as Perry Mason in the 1960s, which aired every week on our black and white set.

We both enjoyed the series and admired Perry Mason’s deportment and legal arguments in the courtroom. He would often invite me to share lunch at the City Hall restaurant with two of his friends who were very senior lawyers. My father had himself served as a first-class magistrate in the early 1960s while he was a district commissioner under the colonial government.

Notwithstanding, his many attempts to goad me into the legal profession, destiny took me down a different path but I retained an admiration of lawyers who presented a good show in the courtroom. While disabusing myself of any authority on matters of the law, this week I would like to revisit a well-established principle in law.

The maxim brought into common parlance by Lord Chief Justice Hewart in R v Sussex Justices ex parte McCarthy ([1924) 1 KB 256, [1923] All ER Rep 233) instructs that justice should be seen to be done. When “seen” is understood in terms of being observed, the maxim is easily defended: open court proceedings protect against arbitrary and partial decisions. However, when “seen” is understood in the sense of “seem”, it is more puzzling since it is not obvious why courts should concern themselves with people’s perceptions that justice has been done.

“Justice should not only be done but should manifestly and undoubtedly be seen to be done”. Lord Chief Justice Hewart’s remarks, uttered nearly 100 years ago are now heard throughout the common law world and beyond. They sustain an ethical requirement that judges and decision-makers more widely cannot hear a case if, from the perspective of a reasonable and informed observer, their impartiality might reasonably appear to be compromised — an appearance standard. As commentators have observed, Lord Hewart was not a good judge and certainly not one remembered for his impartiality. In the words of one particularly forthright commentator, he was “the perpetual advocate”.

He offered no authority for his remarks and his 1924 R v Sussex Justices judgment from which the dictum derives is remarkable for its brevity and paucity of cited authority; he supports his assertion simply by reference to a generic “long line of (unspecified) cases”. More specifically, it is noted that judicial disqualification on the grounds of bias as opposed to pecuniary interest was not part of English common law at the time.

Nevertheless, today the dictum supports a requirement for judicial recusal for the appearance of bias that extends beyond the common law world at both national and international levels.

There are social and other benefits that result when judges observe procedures that are widely regarded as fair, especially in criminal trials. Empirical studies in social psychology show that when legal authorities treat people in ways that accord with “lay” procedural expectations, they are more likely to view the authorities as legitimate, to co-operate with them, and to obey the law out of an internalised sense of obligation rather than out of force or threat. Relating to people in ways that are widely perceived to be fair is a way to engage people’s moral sentiments and to enliven their virtuous capacity to put aside considerations of self-interest to do what is right.

This dynamic provides a sound moral foundation for courts to concern themselves with perceptions of justice.

Britain’s proverbial reasonable man, “the man on the Clapham bus” was created by the courts and the question is often asked, “What would the man on the Clapham bus think?”. Perhaps the Kenyan reasonable man could be “the man in a shuka carrying a rungu in a matatu on Jogoo Road”!

This week Kenyans are asking whether it is only poor people who are jailed while the wealthy get away with onerous bail terms. That is the perception. Perception is our new reality.