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What the Fair Minded Observer Really Thinks About Judicial Impartiality
Modern Law Review  (IF1.779),  Pub Date : 2021-06-01, DOI: 10.1111/1468-2230.12631
Andrew Higgins, Inbar Levy

This article presents the results of an empirical study designed to assess the degree of convergence and divergence between public opinion and the fictional Fair Minded Observer (FMO) test used to determine whether a judge ought to be disqualified on the grounds of possible bias. As part of the test, judges imagine whether an FMO would see a risk of bias on the part of the judge. To the extent that the FMO is partly meant to reflect public perception, the obvious weakness in the test is that no one has tested public attitudes to the risk of judicial bias specifically. We conducted nationally representative public surveys in the UK and Australia, asking respondents what they think about different situations of possible bias (N = 2064). Our results indicate that a gap exists between the FMO created by the courts and public opinion in both countries across a number of scenarios thought to give rise to possible bias, including financial relationships, the risk of prejudgement and fact patterns based on leading cases.