Law Report: 'Real danger' test of apparent bias. Regina v Gough. House of Lords (Lord Goff of Chieveley, Lord Ackner, Lord Mustill, Lord Slynn and Lord Woolf). 20 May 1993.

The test to be applied in cases of apparent bias on the part of a juror, arbitrator, magistrate or member of another inferior tribunal, was whether there was a real danger of injustice having occurred as a result of the alleged bias.

The House of Lords dismissed an appeal by the defendant, Robert Brian Gough, from the Court of Appeal (1992) 4 All ER 481, who dismissed his appeal against a conviction at Liverpool Crown Court on 25 April 1991 for conspiracy to rob. The indictment was based on the commission of eight robberies, which the prosecution contended had been done by the defendant and his brother, David Stephen Gough.

There was insufficient evidence against David Gough and the case against him was not pursued. But he was referred to during the proceedings, mostly as 'David Gough', and his photograph was shown to the jury.

After Robert Gough had been convicted and sentenced, David Gough, now present in court for the first time, started shouting. One of the jurors then recognised him as her next-door neighbour. She was interviewed by police and swore an affidavit deposing, inter alia, that she had not recognised the name 'Gough' as she only knew her neighbour as 'Steve'; she had never seen Robert Gough before the trial, and had no idea he was her neighbour's brother; she had not recognised her neighbour in the photograph; and the fact he was her neighbour had not influenced her thinking as a juror.

The trial judge rightly decided he was functus officio. The question certified by the Court of Appeal was: 'Where a complaint is made after the conclusion of the trial that a juror may have been biassed against the defendant, what is the proper test for the Court of Appeal to apply in deciding whether or not to order a retrial?'

Benet Hytner QC, and David Boulton (Rex Makin & Co, Liverpool) for the defendant; Brian Leveson QC, and Andrew G Moran (CPS) for the Crown.

LORD GOFF said that if actual bias was proved, that was an end to the case: the person concerned must be disqualified. But such cases were rare and, in practice, the question was whether there was such a degree of possibility of bias on the part of the tribunal that the court should not allow its decision to stand.

Having considered the various tests suggested by counsel or set out in the authorities, his Lordship concluded that it was both possible and desirable to apply the same test in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, with jurors, or with arbitrators. In the case of jurors, the same test should be applied by the judge during the trial and by the Court of Appeal after it.

Furthermore, it was unnecessary, in formulating the appropriate test, to require the court to look at the matter through the eyes of a reasonable man, because the court in cases such as these personified the reasonable man; and, in any event, the court had first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the time.

Finally, for the avoidance of doubt, his Lordship preferred to state the test in terms of real danger rather than real likelihood, to ensure that the court was thinking in terms of possibility rather than probability of bias.

Accordingly, what the court should ask itself was whether, having regard to all the relevant circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard, or have regarded, with favour or disfavour, the case of a party to the issue under consideration by him.

In a case of bias by a magistrates' clerk, the court should go on to consider whether the clerk had been invited to give the magistrates advice and, if so, whether it should infer that there was a real danger of the clerk's bias having infected the views of the magistrates adversely to the applicant.

LORD ACKNER, LORD MUSTILL and LORD SLYNN agreed. LORD WOOLF gave a concurring judgment.