R v Gough

Apparent bias is determined by a single objective test applicable to jurors, justices, inferior tribunals and arbitrators. After ascertaining the relevant circumstances, the court asks whether there was a real danger of bias: a real possibility that the decision-maker might unfairly favour or disfavour a party's case. Possibility, rather than probability or reasonable suspicion, is the governing standard.

Actual bias, if proved, disqualifies the decision-maker. A direct pecuniary or proprietary interest creates automatic disqualification without further inquiry. Otherwise, the court ordinarily examines the circumstances rather than the decision-maker's state of mind. Where alleged bias concerns a magistrates' clerk, the court must consider whether the clerk advised the magistrates and whether the clerk's bias might have infected their views.

Robert Gough was convicted at Liverpool Crown Court of conspiracy to rob and sentenced to 15 years' imprisonment. After the trial, it emerged that a juror was the next-door neighbour of the alleged co-conspirator. The juror stated in an unchallenged affidavit that she had not recognised the neighbour during the trial and had not been influenced by the connection.

The Court of Appeal dismissed an appeal based upon this alleged irregularity. It applied the real-danger test used in juror cases, while recognising a competing line of authority applying reasonable suspicion to justices and inferior tribunals.

R v Gough appealed to the House of Lords. The central issue was whether apparent bias should be determined by reasonable suspicion or by a real likelihood or danger of bias, and whether different standards applied to different kinds of tribunal.

1. Appeal dismissed unanimously. The House affirmed the order of the Court of Appeal. Lord Goff of Chieveley delivered the leading speech. Lord Ackner, Lord Mustill, Lord Slynn of Hadley and Lord Woolf agreed with his reasons.

2. The same test governs apparent bias involving justices, inferior tribunals, jurors and arbitrators. The court must first ascertain the relevant circumstances. It must then ask whether those circumstances created a real danger of bias, meaning a real possibility that the decision-maker might unfairly favour or disfavour a party's case. The court personifies the reasonable person, so a separate reasonable-observer formulation is unnecessary.

3. The real-danger test concerns possibility, not proof on the balance of probabilities. A mere or reasonable suspicion is insufficient. The real-likelihood terminology used in earlier authorities remains consistent with the test if “likelihood” is understood as a real possibility rather than probability. The approach in R v Spencer [1987] AC 128 was followed.

4. Actual bias, where proved, requires disqualification. Ordinarily, however, the court does not investigate the decision-maker's actual state of mind. Bias may operate unconsciously, and inquiry into judicial or jury deliberations is undesirable. The court instead draws an objective conclusion from the proved circumstances.

5. A direct pecuniary or proprietary interest is the sole established category producing automatic disqualification. In that category, exemplified by Dimes v Grand Junction Canal (1853) 3 H.L.C. 759, neither actual bias nor a real danger of bias need be proved. Other interests must be assessed under the ordinary real-danger test.

6. Where alleged bias concerns a magistrates' clerk, the court should consider whether the clerk was invited to advise the magistrates and, if so, whether there was a real danger that the clerk's bias infected their views. Rex v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 did not establish a general test founded upon mere suspicion.

7. The Court of Appeal had applied the correct test. On the unchallenged evidence, counsel accepted that there was no real danger of bias by the juror. The conviction therefore remained undisturbed.

1. House of Lords: In R v Gough [1993] 2 WLR 883, the House unanimously dismissed the appeal and affirmed the Court of Appeal's order of 2 June 1992.

2. Court of Appeal (Criminal Division): The court rejected both the challenge to the conspiracy indictment and the allegation of juror bias. It applied the real-danger test to the bias issue.

3. Liverpool Crown Court: On 25 April 1991, the appellant was convicted of conspiracy to rob and sentenced to 15 years' imprisonment.