Oxbridge judges under scrutiny

In a case against their Alma Mater, can a judge be impartial? One plaintiff, suing Oxford, thinks not.

A student has begun an important court challenge which threatens to end to the predominance of judges educated at Oxford and Cambridge universities. Helena Kaminiski is suing two Oxford University colleges for breach of contract after she alleges they reneged on an agreement in 1997 to allow her to transfer her course from one college to the other. The case, to be heard later this year, is expected to once again raise the question of perceived bias among the judiciary.

Since she began her legal action against Somerville and St Cross, Ms Kaminiski's case has been heard by four different judges, including Dame Elizabeth Butler-Sloss, the head of the Family Division in the High Court and an honourable fellow of St Hilda's College, Oxford.

Ms Kaminiski, a mature student who intended to work on a doctorate in modern history, alleges that all four judges are either former Oxford graduates or have close ties with the university. She is expected to argue at a later appeal which she lodged earlier this year in relation to a costs order in the case, that for this reason she is being denied a fair hearing.

The higher echelons of Britain's judiciary are dominated by lawyers who have graduated from Oxbridge universities. A survey published last year by Labour Research, the independent trade union and labour movement, found that 73 per cent of High Court judges appointed since May 1997 had been to either Oxford or Cambridge universities. 64 per cent of the total judiciary come from those universities.

Last year the Court of Appeal attempted to clarify conflict of interest rules after a law lord had to stand down in the Pinochet case.

The case arose from a challenge against Lord Hoffmann, one of the three law lords who found against the former dictator but also had links with Amnesty International which should have disqualified him from hearing the case.

In a historic ruling it was ordered that the part of the case in which Lord Hoffmann sat, should be reheard. This led the Lord Chancellor, Lord Irvine of Lairg, to demand tough new systems to avoid any repetition of the débâcle.

In the lower courts, a number of other allegations of judicial bias have been filed, in the wake of the Hoffmann incident, from lawyers claiming judges had personal interests which they did not declare. And in November the Court of Appeal issued guidance for judges that restricts the circumstances in which they should withdraw from cases.

Giving judgment in five test case appeals, the three senior judges of the Supreme Court sought to lay down rules that, while protecting the fundamental right to a trial by an impartial tribunal, discourage far-fetched challenges to judicial impartiality that could seriously disrupt the administration of justice.

In doing so they reaffirmed the principle that judges cannot be disqualified from hearing a case by reason of their religion, ethnic or national origin, gender, age, class or sexual orientation. The judges, Lord Bingham, the Lord Chief Justice, Lord Woolf, the Master of the Rolls, and Sir Richard Scott, the Vice-Chancellor, also said that objection to a judge could not ordinarily be soundly based on the judge's social, educational or employment background, or that of his family, or to his membership of bodies such as the Freemasons.

The judges added that it would be "dangerous and futile" to define or list the factors which might give rise to a real danger of bias. Everything would depend on the facts.

But the question of the predominance of judges with Oxbridge educations or links to the colleges was not addressed and the Kaminiski case shows that the question of perceived bias in the judiciary will not go away.

Ms Kaminiski is also suing Oxford University for defamation after she alleges that a member of the university wrote to "every landlord on their student housing list" that she was an unsuitable tenant. Oxford University has said that all the named defendants would be "strongly contesting" all the allegations.

Ms Kaminiski, an American who has a degree from Harvard, is now facing eviction from her premises in Oxford by the University. Last week the County Court issued her with a "notice to quit". If she loses her home she may be unable to bring her claim of judicial bias before the courts, leaving an important question unanswered. Can a judge be said to be truly impartial when he or she is hearing a claim against their Alma Mater?