By Gabriel Princewill-
The controversy surrounding a High Court judge who previously represented Mirror Group Newspapers as a barrister before ruling on a separate legal challenge brought by Prince Harry against another national newspaper publisher has reignited a difficult question at the heart of modern justice. That is how far should the courts go to protect public confidence in judicial impartiality? Prince Harry lost his High court battle against the daily mail last week, explicitly describing the ruling as a whitewash. In the absence of scrutinising the facts of the case thoroughly from a legal standpoint, one is left with nothing more than a subjective viewpoint on whether the ruling was corrupt or not, in the manner asserted by the aggrieved duke of sussex. The possibility that a court hearing can be whitewashed by a sitting judge, is separately disturbing, if true.
The issue here is not necessarily whether a judge can be trusted to act fairly. Judges are required to put aside previous professional roles and decide cases solely on the evidence before them. The deeper concern is whether the justice system should avoid situations where a reasonable member of the public might question whether complete independence has been achieved.
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The principle that “justice must not only be done, but must also be seen to be done” has been a cornerstone of the English legal system for generations. It recognises that public trust is not built solely on the personal integrity of judges, but also on the appearance of fairness surrounding the process.
In this context, critics argue that the involvement of a judge who previously represented Mirror Group Newspapers in historic phone-hacking litigation creates a perception risk when later deciding a claim brought by Prince Harry against another major newspaper organisation. Although the legal proceedings involved different publishers, the wider subject matter—allegations concerning press intrusion, unlawful information gathering and the conduct of national media organisations—creates a connection that some believe warranted greater caution.
The argument is not that a former barrister cannot become an impartial judge. Indeed, the English legal system depends heavily on experienced advocates moving to the bench. Many senior judges have spent decades representing clients across a wide range of industries and legal disputes before being appointed. Without such judicial appointments, the courts would lose much of the experience and expertise required to decide complex cases. A system that prevented judges from hearing any matter connected to a former client would create practical difficulties and could significantly restrict the pool of available judges.
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However, the question remains whether some cases are so closely connected to a judge’s previous professional history that stepping aside would better protect confidence in the administration of justice. More so in light of the litany of cases that have seen experienced solicitors and barristers in the UK exposed for manifest corruption and dishonesty. Many solicitors and barristers eventually go on to become judges.
The concern arises because the public does not view legal impartiality in the same way as lawyers and judges do. A legal test may ask whether there is a real possibility of bias. A member of the public may ask a simpler question: “Would someone who once represented an organisation involved in similar allegations be the most appropriate person to decide a related dispute involving another media organisation?”
That distinction lies at the centre of the debate. The courts have long recognised that apparent impartiality matters. The issue is not whether a judge would consciously favour a former client or whether there is evidence of personal prejudice. The concern is whether the circumstances could undermine confidence in the outcome among those observing the justice system from outside.
Public trust is particularly important in cases involving prominent individuals, major corporations and institutions with significant influence. Prince Harry’s legal battles against sections of the British press have attracted extraordinary public attention because they involve allegations about the conduct of powerful media organisations and raise wider questions about accountability, privacy and the relationship between the press and public figures. In such circumstances, some argue that the judiciary should adopt the highest possible standards of transparency and caution. A judge stepping aside in a borderline case may not be an admission of wrongdoing or bias; it may simply demonstrate that maintaining confidence in the system is more important than preserving convenience.
Advocates of this approach argue that judicial independence is strengthened, not weakened, when judges voluntarily avoid situations where their previous professional associations could become a distraction from the substance of the case. They point to the fact that public confidence can be difficult to restore once questions are raised. Even where a judge has acted entirely properly, doubts expressed after a ruling can overshadow the decision itself and create unnecessary controversy. The alternative argument is that applying too strict a rule could make it impossible for experienced judges to hear many important cases. Senior barristers often represent major organisations before joining the judiciary. A former advocate who represented a newspaper publisher years earlier may have no continuing relationship with that organisation and may approach every case with complete independence.
There is also a practical distinction between a former professional relationship and actual judicial bias. The legal system cannot operate on the assumption that judges are unable to separate their previous careers from their judicial responsibilities. Nevertheless, critics believe that the courts should place greater emphasis on avoiding risk rather than proving actual prejudice. They argue that the cost of a judge voluntarily stepping aside is usually limited, while the damage caused by a perception of unfairness can be far greater.
The debate reflects a broader challenge facing modern institutions. Public confidence is not maintained simply by following legal rules; it depends on whether ordinary people believe those rules are sufficient to protect fairness. The challenge for the judiciary is balancing two important principles: ensuring that the most experienced judges remain available to hear complex cases while ensuring that no circumstances arise that could weaken public trust. The controversy surrounding Prince Harry’s litigation illustrates why this balance is so difficult. The legal system may conclude that a judge is capable of acting impartially, but critics argue that confidence in justice requires an additional safeguard: avoiding situations where impartiality could reasonably be questioned.
Ultimately, the legitimacy of the courts rests not only on judges being fair, but on society believing that they are fair. In cases involving powerful institutions, public figures and issues of national debate, that confidence may be the most valuable asset the justice system possesses.
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