The imaginary observer of the bias rule

A successful claim of bias requires its claimant to establish that a source of alleged bias might cause a decision maker not to approach a matter impartially. The courts decide this issue by asking what a fair minded and informed observer might apprehend in the circumstances. This hypothetical observer is a legal fiction used by the courts to ensure that claims of bias are decided by an objective standard that reflects views of the wider public rather than the court itself. The hypothetical observer has been questioned in recent years. Some argue that the courts attribute so much knowledge to the observer that they are, in truth, applying their own views. The observer has also been criticised as a complex and obscure device. This article examines the principles governing the hypothetical observer and considers whether it should be retained as part of the test for bias.