Constitutional Justice & Judicial Recusal

31 October 2018

What is Constitutional Justice & Judicial Recusal?

Our right to constitutional justice is provided for by Article 40.3 of our Constitution whereby the State guarantees in its laws, to respect, defend and vindicate the personal rights of every citizen. Constitutional justice consists of two fundamental procedural rules which seek to provide fair procedures to persons living in Ireland in their dealings with the Courts and other public bodies:

1. the decision maker must not be biased; and

2. a person must have an adequate opportunity to present his/her case.

To guarantee fair procedures, the judiciary must adhere to the first rule above; the rule against bias. This requirement is embodied in the oath all judges in Ireland make when sworn in as judges. The oath provides that “…I do solemnly and sincerely promise and declare that I will ……………. execute the office of ………without fear or favour, affection or ill-will towards any man…”.

Adherence to the rule against bias will occasionally require a judge to remove (or recuse) himself/herself from acting as the decision maker in a legal proceeding. A judge can recuse himself of his own volition or on foot of an application from one of the parties to the legal proceeding. A judge may refuse to recuse himself and that decision can be appealed to a higher Court which can uphold or overturn that judge’s decision.

A judge will recuse himself/herself where it appears that he/she has shown actual bias toward or against a party to the proceedings. More commonly, a judge will recuse himself/herself in circumstances potentially giving rise to bias (discussed below), or where a reasonable person would have a reasonable apprehension that one of the parties to the proceedings would not get a fair hearing from an impartial judge.

What’s all this bias about? 

The potential sources of bias for and against a party are probably infinite, however, some of the more obvious sources include where a judge has a financial interest in the outcome of the case; where the judge has a personal relationship with a party or is involved with a party; where a judge holds known and strident views concerning the issues in a case; and where a judge has shown some pre-judgement of the issues in the case.

An example of judicial recusal occurred recently in the High Court in England in a high value case concerning a European Commission ruling that British Airways was guilty of colluding with other airlines to fix air cargo prices. Mr Justice Peter Smith had repeatedly questioned (thirty-three times) the British Airways’ legal team about how his and his wife’s luggage had not arrived following a flight from London to Florence. Judge Smith threatened to haul British Airways chief executive, Willie Walsh, before the Court to answer some searching questions about the missing luggage. Eventually, counsel for British Airways sought for Judge Smith to recuse himself from the case and he did so.

More recently, in Ireland, Declan Ganley, in his defamation proceedings against RTÉ, requested that Mr Justice Colm Mac Eochaidh recuse himself on the basis of an article the Judge wrote about Mr Ganley’s political party, Libertas, 4 years previously. Libertas had run a “Vote No” campaign regarding the Lisbon Treaty referendum and, in the article in question, Judge Mac Eochaidh wrote that “Libertas ran a brilliant “Vote No” campaign, albeit one based on false claims.” The article also stated that “…Libertas will be back with more well-funded false assertions designed…” One of the claims made by RTÉ in its defence was that Mr Ganley was someone that made false assertions in business. The Judge agreed to recuse himself stating that he was satisfied that “an objective person with full knowledge of the article written and the case could conclude that I have a view of the plaintiff which is inimical to his efforts to overcome the defendant’s allegation that he is a person who makes false claims.”

The Dublin Well Woman Centre Ltd v Ireland case in 1994 concerned an application which sought a declaration that the Dublin Well Woman Centre could provide information in the jurisdiction about abortion services available in other jurisdictions. The case came before Judge Mella Carroll in the High Court. She had been the chairperson of the Commission of the Status of Women in 1992 when that body issued a statement supportive of such information being made available. The Society for the Protection of the Unborn Child opposed the application being made by Dublin Well Woman Centre, and, during the proceedings, it applied to Judge Carroll to recuse herself because her earlier involvement with the Commission on the Status of Women created a reasonable apprehension of bias. Judge Carroll refused, but her decision was appealed to the Supreme Court. It found that she should have recused herself because the Plaintiffs’ views on the issue in the proceedings might correspond with the views of the Commission on the Status of Women and so a reasonable person, such as the appellant, would reasonably apprehend that its chance of a fair hearing did not exist.

Is it important that judges can do/recuse themselves?

The public should be assured that their right to have cases heard by unbiased decision makers is guaranteed. Accordingly, in order to maintain the public’s confidence in the impartiality of the judiciary, a judge should, when appropriate, recuse themselves from presiding in a case.

If a judge cannot adjudicate a case ‘without fear or favour, affection or ill-will towards any man’ then the parties to a legal proceeding will not have been afforded their rights to constitutional justice guaranteed under our constitution. If it is perceived that a judge cannot adjudicate a case ‘without fear or favour…’, then the parties involved cannot be confident that they have been afforded their constitutional rights to justice.

Either of these scenarios will result in an erosion of the public’s confidence in the administration of justice and undermine the public’s reliance on the judiciary and the rule of law.


For further information on this topic please contact:

Jonathan Lynch
Associate Dispute Resolution
D: +353 1 202 6477

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