¹ This reasoning in its simple form is more suited to civil law than criminal law, since it is doubtful whether the prosecutor, representing the State, and the accused are on an equal footing. Equaliy has a special meaning in criminal law when the comparison is between the different accused, whose cases should be treated on an equal footing on substantive grounds.

² See Ridel, J., Das Postulat der Unparteilichkeit des Richters — Befangenheit und Parteilichkeit — im deutschen Verfassungs — und Verfahrensrecht (Berlin, 1980) 14, 15.Google Scholar

³ S.H. 1043, p. 43.

⁴ For example, where the judge is a shareholder in a company that is a party in the case before him.

⁵ Schimmel v. The Licensed Authority (1955) 9 P.D. 459, 462.

⁶ Yadid v. State of Israel (1975) 29 (ii) P.D. 375, 379A “…to a material connection (pecuniary or proprietory) with the subject-matter of the proceedings, as a result of which he is liable to act with bias, or any other private connection, as a result of which he is liable to pervert the course of justice” (author's emphasis).

⁷ As expressly laid down in sec. 22 (1) of the German Criminal Procedure Law (Strafprozeβordnung).

⁸ “Party” here not necessarily in the formal sense.

⁹ de Smith, S.A., Judicial Review of Administrative Action (London, 4th ed. by Evans, J. M., 1980) 248, 250Google Scholar; J. Riedel op. cit. supra n. 2 at 95.

¹⁰ As laid clown in Military Justice Law, 5715–1955, sec. 310(1) (9 L.S.I. 184 at 243): “The following shall not sit as military judges in the trial of any offence: (1) a spouse, parent, descendant, brother or sister of the person charged with the offence.” The German Criminal Procedure Law, sec. 22(2) and (3) includes other family relationships and disqualifies on the grounds of affinity not only to the accused but also to the victim.

¹¹ As laid down in the Military Justice Law, sec. 310(2), (3), (4), (5) and the German Criminal Procedure Law, sec. 22(4) and (5).

¹² The Even-Shoshan Hebrew Dictionary includes under the entry “bias” concessive attitude to a person, readiness to believe his statements without sufficient proof, or to lighten his punishment out of respect, affectation or pity, “…for there is no iniquity with the Lord our God, nor respect of persons, nor taking of gifts.” (II Chron. 19:7).

¹³ Decision of the Appeal Court Martial: App. 71/2, p. 14 (unpublished).

¹⁴ See Schimmel cited at n. 5 above. Note that a danger of bias is meant; it is never necessary to prove actual bias for the purposes of disqualification: de Smith, op. cit. supra n. 9 at 261.

¹⁵ Cohen, Z. and Shalgi, M., Criminal Procedure (Jerusalem 1981, in Hebrew) 183, 188Google Scholar; Nuchimowsky v. Minister of Justice (1950) 3 P.D. 4, 6; Mizrachi v. Minister of Labour (1964) 18(i) P.D. 434, 436; Giles, T., The Magistrates' Courts (Harmondsworth, 1951) 33.Google Scholar

¹⁶ For a discussion of the two tests see Yadid, supra n. 6 and de Smith, supra n. 9 at 262–265.

¹⁷ Yadid, at 381 A. And see App. 71/2, p. 13.

¹⁸ A striking example of disqualification of a judge in the interests of the “appearance of justice” is Cohen v. State of Israel (1982) 36 (iv) P.D. 729, 733.

¹⁹ de Smith, op. cit. at 265.

²⁰ de Smith refers the apprehension of a reasonable man being on the level of a “real likelihood” of bias. An expression of how very reasonable the reasonable man is can be found in the dicta of Landau P. in Butbeka v. State of Israel (Daf LaPraklit (Criminal) No. 231): “The reasonable man is represented for these purposes by the court hearing the disqualification plea or appeal from a refusal of the judge to disqualify himself …”

²¹ Yadid, at 381A.

²² The test was adopted in the decision of the President in Yadid, and in the judgments in Schimmel (n. 5 above); Ulamei Gil v. Moshe Ya'ari (1961) 15 P.D. 673, 676; Shmuel v. A.G. (1964) 18 (iii) P.D. 452, 465; Salem v. State of Israel (1975) 29 (ii) P.D. 431; State of Israel v. Angel Bakery (1980) 34 (iv) P.D. 277 (real danger test); Algazawi v. Bench of the Military Court in Gaza (1980) 34 (iv) P.D. 411. The test was not applied in Avi Yitzhak v. State of Israel (1975) 29 (i) P.D. 807. The situation is unclear in Hasin v. H. Aloni in the capacity of Competent Authority under the Leasing of Land (Temporary Provisions) Law 5719–1959 (1965) 19 (i) P.D. 572. The Court begins by citing the Schimmel test, i.e. that mere suspicion is insufficient; a real likelihood is needed (p. 575) but then continues: “…that is to say, the test is based on the reasonable apprehension (author's emphasis) in the mind of a reasonable man cognizant of all the facts of the case that the officer in question was prejudiced” (p. 576A). In Abu Hatzera v. State of Israel (1981) 35 (iii) P.D. 681 at 694 the court states: “there is no disqualification unless the applicant succeeds in showing a real likelihood (author's emphasis) of bias or prejudice and mere suspicion or apprehension is not sufficient for this purpose” (author's emphasis). The judgment continues: “the essential, and perhaps sole, question is whether the remark in question raises a suspicion of lack of objectivity (author's emphasis) in trying the accused in the particular case…” Equally unclear is the formulation of the rule in Abu Hatzera M.K. v. State of Israel (1982) 36 (i) P.D. 247 at 250, which begins with “real likelihood” and ends with “real apprehension”. See also nn. 30 and 57.

²³ Thus a different test is acceptable in the case of lay judges or authorities not manned by professional judges. It is important to emphasize the difference between the Israeli system and systems such as those of England or the United States where trial by jury prevails. The legal tests that have been developed in those countries should therefore be treated with caution.

²⁴ See Mizrachi v. State of Israel (1951) 5 P.D. 1504; Gechtmann v. State of Israel (1951) 5 P.D. 577, 585; Heyman v. State of Israel (1966) 20 (iii) P.D. 421; Kahana v. State of Israel (1974) 28 (ii) P.D. 421; Revivo v. State of Israel (1975) 29 (i) P.D. 778; Avi Yitzhak v. State of Israel (supra n. 22). This line of authority is not followed in Shabi v. State of Israel (1975) 29 (i) P.D. 287. This basic approach relies on the judge being able to disregard the statement of one accused about another when it is inadmissible as evidence with regard to the other accused, or the statement of an accused which is subsequently found invalid as evidence. Further, the case is not transferred to another judge, when an accused who has confessed to the offence withdraws his confession, and when an appeal court overturns the decision of the court of first instance it is entitled to send that case back to the same court for a re-hearing. Examples of use of its authority in this way can be found in Baruch v. State of Israel (1975) 29 (i) P.D. 498; Goldberg v. State of Israel Savir Summaries No. 9, 207. See also Fidela v. State of Israel (1969) 23 (i) P.D. 165. For the view of German Law on this point see: Arzt, G., Der Befangene Strafrichter (Tübingen, 1969) 80–83.Google Scholar Perhaps the clearest example is on the question of disqualifying the judge itself, since delay in submitting the request for disqualification prevents it from being heard. See Kadinian v. State of Israel (1979) 33 (ii) P.D. 503, 504. We are aware of sec. 41 (a) of the Courts Law, 5717–1957 (II L.S.I. 157) and of the judgment of the Supreme Court in Disenchik v. State of Israel (1963) 17 P.D. 169, but we would not suggest that it be taken as indicative of the general approach to the treatment of judges. Agranat P. did, it is true, revive the image of possible sub-conscious influence in Yadid (pp. 383, 384), but in our opinion the sub-conscious is an area where it is impossible to set any limits and is best avoided. The words of Agranat J. (as he then was) in Davor are to be preferred (A.G. v. Editor of “Davar” (1951) 5 P.D. 1017, at 1053D): “I am aware of the fact that the professional judge is also a creature of flesh and blood and open to sub-conscious influences. But I am convinced that once we adopt this psychological assumption we shall be entering an endless labyrinth of far-reaching possibilities…” A difference of opinion on this problem is to be found also in German juridical literature in connection with the question of disqualification of judges: See Teplitzky, O. “Probleme der Richterablehnung wegen Befangenheit” [1962] Neue Juristische Wochenschrift 2044Google Scholar, and Wassermann, R. “Richterablehnung wegen Befangenheit” [1963] Neue Juristische Wochenschrift 429.Google Scholar

²⁵ Shmuel, supra n. 22 at 465 and Yadid, supra n. 6 at 381A and C.

²⁶ This distinction was discussed by Agranat P. in Yadid, at 381 E and F, and 383B.

²⁷ On the assumption that it is different in meaning from the “real likelihood” test.

²⁸ J. Reidel, op. cit. supra n. 2 at 270, 271; Löwe-Rosenberg, , Die Strafprozessordnung und das Gerichtsverfassungsgestz (Berlin, 23rd ed., 1976) § 24, para. 5.Google Scholar

²⁹ J. Reidel, op. cit. supra n. 2 at 209.

³⁰ In State of Israel v. Angel Bakery (supra n. 22), Landau P. rejected the explanation of the magistrates' court judge: “I regret that I am unable to accept this explanation excusing the utterance that the learned judge made” (p. 279C). It is possible that in Morad v. State of Israel (1977) 31 (i) P.D. 705, Sussmann P. was obliged to see the case through the accused's eyes so as not to express doubt of the judges' explanation of his utterance: “I see that we shall have to conduct this trial point by point, but it is liable to cost him dear.” The judge explained that his words were directed to the amount of costs that the appellant was liable to incur. The sceptical view of the President is to be seen in this statement: “It is not the practice of criminal courts to impose costs on the accused although it has authority to do so…. since I do not intend to find that the learned judge would really have seen in the conduct of the defence grounds for greater severity had the accused been found guilty”. Note that the President avoided finding the opposite, namely that the judge would not have so acted, which was the necessary consequence of accepting the judge's explanation that by “cost him dear” he was referring to the costs of the case and not its outcome. But see also n. 53 infra.

³¹ The European Convention on Human Rights (1950) Art. 6 (1) concerns itself with actual impartiality and not the appearance thereof. See J. Reidel op. cit. supra n. 2 at 267.

³² We expressed a similar view on the objective element necessary for attempt, where we rejected the “unequivocal” test. See Kremnitzer, M., “Another Comment on Actus Reus in Attempted Offences” (1979) 9 Mishpatim 264, 290.Google Scholar

³³ As the Supreme Court said in Shmuel: “Accordingly, if the court begins to take account of the opinions of unreasonable people there will be no end to the matter” (supra n. 22 at 465G).

³⁴ Seibert, C., “Befangenheit und Ablehnung” [1960] Juristenzeitung 85.Google Scholar

³⁵ Löwe-Rosenberg, op. cit. supra n. 28 at § 24, paras. 16, 20–22, 34. Our Supreme Court ruled the same in Avi Yitzhak, supra n. 22. On the objective qualities of the test in German Law, see Arzt, op. cit. supra n. 24 at 21–23.

³⁶ The fear is that he will be unable to approach the matter with an entirely fresh and open mind, without feeling bound in any way by his previous decision out of an understandable desire for consistency. There is an attested psychological tendency to perpetuate a decision once taken. See J. Riedel, op. cit. supra n. 2 at 154.

³⁷ de Smith, op. cit. supra n. 9 at 265. This is an argument for rejecting the reasonable suspicion test as the sole test, but not as an additional test, when there is a ground for disqualification either because of actual danger or because of an imagined danger.

³⁸ Yadid, at 381G, 382A: Reg. v. Camborne Justices (1955) 1 Q.B. 41, 51, 52.

³⁹ On questions like the test for disallowing a confession, seriousness of the offence as the sole test for arrest of a suspect, defence by a private citizen of other persons unrelated to him.

⁴⁰ Shientag, B.L., The Personality of a Judge (Binghamton, 1944) 51.Google Scholar

⁴¹ J. Riedel, op. cit. supra n. 2 at 27, 31, 32, 43, 71, 198–199; Hart, H. and Sacks, A. M., The Legal Process (Cambridge, 1958) 1407–8Google Scholar; Shmuel, supra n. 22 at 466. Thus the fact that the judge has expressed an opinion on the seriousness of the offence does not disqualify him from re-hearing the case if the first trial is annulled: Baruch and Goldberg, supra n. 24.

⁴² J. Riedel, op. cit. at 62–68; Löwe-Rosenberg, op. cit. at § 24 paras. 20, 21.

⁴³ J. Riedel, op. cit. at 63, 64.

⁴⁴ As Sussmann J. said in Baruch: “Generally speaking, as it is a professional and not a lay judge that is involved, the knowledge of the judge as stated will not serve as grounds for disqualification, especially since in provincial towns there is sometimes only one judge…” See also dicta of H. Cohn J. in Hadari v. The 30 Herzl Street Arcade, Netanya Ltd. (1969) 23 (i) P.D. 658 as to acquaintance with a witness not justifying disqualification. It is true that Sussmann, P. stated in Alal v. State of Israel (1979) 33 (i) P.D. 726, at 728Google Scholar: “It is, of course, desirable that in a place where there are few judges, the judge who issued the arrest warrant should not try the case itself” and went on to direct the senior (magistrates' court) judge's attention to the need to ensure “as far as possible that trial of the indictment not be before the same judge who as a result of the arrest warrant has knowledge of the accused's previous convictions and other such facts, which are likely to prejudice the rights of defence”. Nevertheless, it was said earlier in the same judgment that the fact that the arrest warrant was issued by the judge trying the case is not a ground for disqualification, and in Alal the President transferred the case to another judge principally because it was stated by the judge as a ground for issuing the warrant that the accused's defence was not credible. The reason given for disqualification was the suspicion that might be aroused in the accused's mind even though the President was entirely convinced that the judge would not be influenced by what was brought to his knowledge during the application for the warrant and though “there is no question of prejudice here.” It will be noted that the statements cited above from the judgment were prefaced by the phrases “it is desirable” and “as far as possible” and not expressed as mandatory. For the sake of completeness it should be noted that in provincial towns staffed by a single judge, the latter sits both on applications for arrest warrants and the indictment itself and this practice was endorsed by the Supreme Court in Baruch and in Tziyon v. State of Israel (1981) Daf LaPraklit (Criminal) No. 231, where it was said: “…nor in this case do I have any doubt that in spite of the information on the appellant's past placed before the judge, he is able to free himself of any negative impression of the accused that it might have created, and will try the appellant on the evidence alone”. It cannot be supposed that the Supreme Court was prepared to accept an administration of justice tainted with partiality in provincial towns because of the practical difficulties involved in separating the jurisdiction over arrest and trial, or that the level of justice in provincial towns is lower than that in large cities. In Nahmias v. State of Israel (1982) Daf LaPraklit (Criminal) No. 231, Landau P. extended his statement as to the position of the sole judge in a provincial town to cover towns where there are two judges. In Cohen v. State of Israel, (supra n. 18) it was held that “there is no rule of practice that a judge does not try a person if he previously heard an application for a warrant for the arrest of that same person, or for bail. There is no legal bar on a judge who previously ruled on an application for an arrest warrant trying the case itself, nor is there any reason to apply a practice or custom as stated when there is a new hearing of a case that was originally heard in whole or part in the absence of the accused” (p. 732D-F).

⁴⁵ On the difficulty of freeing oneself from the influence of a previous decision, see Ulamei Gil Ltd. v. Ya'ari and Tel-Aviv Municipality, supra n. 22 at 279, and n. 36 above.

⁴⁶ In Segalovitz v. State of Israel (1977) 31 (iii) P.D. 27, Sussmann P. expressed the view that a plea to disqualify a judge because that judge had said of the accused in another case that she was unrestrained and ill-tempered, revealed no ground for disqualification. The judge's words were said in connection with that case “and have no bearing on the case in question” (Sussmann P. granted the appeal only because of the position taken by the prosecution, “even though it may be doing injustice to the judge”).

⁴⁷ The connection or lack of connection with the present indictment in statements about the accused is the basis for distinguishing the ruling in Segalovitz referred to in n. 46 above from that in a second case involving the same appellant (Segalovitz v. State of Israel (1977) 31 (iii) P.D. 588), where the judge was disqualified for comments made by him “in view of the close connection” between the case in which they were made and the present case.

⁴⁸ Z. Cohen and M. Shalgi, op. cit. supra n. 15 at 187. Yadid, supra n. 6 at 384A.

⁴⁹ In Salem (supra n. 22), Agranat P. relied, inter alia, on the fact that the relevant findings of the judges in the previous case were based on statements made by the accused at the police station and “the said statements could not be used as evidence against the accused.”

⁵⁰ In Avi Yitzhak (supra n. 22), the judge's previous decision disqualifying the appellant from driving in accordance with sec. 47 of the Traffic Ordinance was based on his perusal of the police file. In Yadid, (supra n. 6) on the other hand, the previous finding was an assessment of the credibility of the accused Yadid's evidence, which was vital for determining the guilt or innocence of another person in a case where Yadid was a witness. This distinction was made by Agranat P. in his decision in Yadid, at 384 E.

⁵¹ In Alal, (supra n. 44) Sussmann P. in his judgment relied on the fact that the judge's finding was unqualified. In Cohen (supra n. 18) it is possible that the specific and unqualified nature of the judge's statement (“… I am not sure that such a driver has the right to be on the road”) lead to his disqualification. Cf. Baruch v. State of Israel, supra n. 24.

⁵² In Salem, Agranat P. stressed that the findings of the court with respect to the accused were for the purposes of sentencing only. In its judgment in Shmuel, (supra n. 22) the Supreme Court says: “As for bribery… although the language used was unfortunate, it does no more than give expression to matters that had been aired before the judge up to that point”, and relies on the statement of the judge in his ruling that his examination of the question was “in general terms, without making any finds at that point in the case at hand before witnesses had been heard and before the parties had given their full account of the circumstances of the case.” (p. 467). In German law, premature utterances of the judge relating to the case before him are distinguished according to whether they reflect a provisional and open standpoint or a fixed and final one. The latter standpoint will disqualify the judge, while the former in general will not. See: J. Riedel, op. cit., at 115–117. In our case-law, a special category is formed by cases where the judge adopts a threatening attitude, warning the accused of the consequences of his denying guilt. In such cases the judge is disqualified (Farjoun v. State of Israel (1980) 34 (iv) P.D. 335; Metri v. State of Israel (1978) 32 (i) P.D. 27; Morad v. State of Israel (supra n. 30)) either because the judge's words create a real likelihood that he will judge the accused more harshly if he persists in his denial—as he (the judge) announced beforehand—(it is in the nature of a decision, albeit conditional, that the judge will act in this way, and the danger is that the judge will keep his word or at least be influenced by it) and this is not justified since denial of the charge is not a ground for more severe treatment, or because they prejudice the accused's ability to conduct his defence without threats or illegitimate pressures. See: Shetreet, S., Judges on Trial (Amsterdam, 1976) 215.Google Scholar We have considered only findings of fact. Findings of law do not disqualify a judge, even when final in nature, since a judge is presumed by the nature of his office and character always to take an open attitude to questions of law. Expression of this may be found in the “further hearing” procedure, where the same judges whose decision on a point of law is subject to a further hearing may, and do, sit in that further hearing.

⁵³ As laid down in Barattes v. State of Israel (1976) 30 (i) P.D. 208, and relied on in Segalovitz, supra n. 47. This test is also used in German law, where it has been ruled that premature utterances as to the judge being convinced of the guilt of the accused will disqualify that judge where the remarks were not necessary to the proceedings. Löwe-Rosenberg, op. cit. supra n. 28 at § 24 para. 44; J. Riedel, op. cit., at 140. This may also be the ground for the rule that the judge's previous dealings with the same case (decisions on arrest, revocation of driving licence, etc.) do not disqualify him. This rule is truly a necessity in the case of rulings required by the performance of his duty in the same proceedings, in order to allow it to be completed before the same judge. The degree of incidence of this rule in Israeli law has not been clarified. From Yadid it would appear that in the case of a decision from a different proceeding, the rule is not of unrestricted application. The question of whether the decision in Yadid was correct on this point is outside the scope of this inquiry.

⁵⁴ The Bukai case is referred to in the Ronen judgment but no citation is given. Magistrates' Court cases are generally not reported.

⁵⁵ This reticence is evidence of the uncertain, presumptive character of his words.

⁵⁶ It is hard to find any moral justification for granting immunity, and it is therefore hard to find any defect or tone of personal animosity towards the appellant in the judge's expression of regret. On partial immunity as expressed in an agreement to lighten the sentence, see: Harnon, E. and Mann, K., Plea Bargaining in Israel (Jerusalem, 1981, in Hebrew) 8–10.Google Scholar

⁵⁷ In Abu Hatzera M.K. v. State of Israel (supra n. 22) the court ruled: “it is not the particular subjective sensitivity of the appellant which is decisive here…” And in Farjoun (supra n. 52) the court refers to “the eyes of a normal accused person”. See also Kadouri v. State of Israel (1983) 37 (i) P.D. 52, 56. This approach is not followed in Morad (supra n. 30) or in Alal (supra n. 44), where the court looked at the matter “through the eyes of the accused”, nor in Shurafi v. State of Israel (Daf LaPraklit No. 231), where Landau P. said: “The question is simply… whether something has happened which is likely to arouse the suspicion in the mind of the accused that he will not receive a fair trial.” See also Cohen v. State of Israel, supra n. 18 at 729, 733. Cf. Landau P. in Butbeka v. State of Israel (supra n. 20): “… the reasonable man is represented for these purposes by the court dealing with the disqualification plea or appeal from a refusal of the judge to disqualify himself, and not by the accused himself (even a “reasonable accused”) with his special personal involvement in the matter.” In another of his judgments (Angel v. State of Israel (1982) 36 (iii) P.D. 306) Y. Kahan P. speaks of “reasonable suspicion” and “real apprehension of bias” and not of suspicion in the eyes of the accused.

⁵⁸ Nor is there any real discussion of the question of the test in Angel (n. 57 above). It appears from the judgment that the President supports the reasonable suspicion test (p. 307G) or “real apprehension” (p. 308B), but there is no mention of the other test or argument justifying its abandonment in favour of the reasonable suspicion test.

⁵⁹ If Bukai had testified on this, he could not have been said to be protecting the appellant.

⁶⁰ In Salem, Agranat P. based his decision not to disqualify, inter alia, on the fact that “the judges were careful not to identify the other persons connected with the criminal offence in question”.

⁶¹ In both these cases the earlier decision had a clear connection, not just with the accused as in our case, but also with the facts of the case. In Salem, it was a finding in the sentence of his accomplice that the accused had participated in the murder, and in Avi Yitzhak—on the reasonable suspicion test—the justification of the appellant's being disqualified from driving on the basis of the police report on which the charge was brought. Needless to say, this decision is also contrary to others where there was no disqualification for personal remarks (about the person and not about the facts of the case); Segalovitz (n. 46 above); Weinberg v. A.G. and Dr. B. Halevy (1950) 4 P.D. 592.

⁶² See the examples given in n. 22 above.

⁶³ So that the judge who is today considered fit will not tomorrow in the course of the trial or after its end be deemed unfit.