R v Gough

Facts

Gough was convicted of conspiracy to rob. After the guilty verdict a juror realised that she lived near his brother, who was connected with the case, and she told the court. The defence argued that the juror's connection meant the conviction should be set aside for bias or the appearance of bias.

History

The Court of Appeal (Criminal Division) dismissed Gough's appeal against conviction, and he appealed to the House of Lords.

Issue

What the test is for deciding whether a decision-maker, here a juror, was biased where no financial interest is alleged, and whether it turns on real likelihood of bias or reasonable suspicion of bias.

Held

Appeal dismissed. The test is whether, in all the circumstances known to the court, there was a real danger of bias, and on the facts there was none.

Ratio

• Where no pecuniary or proprietary interest is involved, the test for apparent or actual bias in a judge, justice or juror is whether in the circumstances there was a real danger that the person was biased, the court itself assessing that question.
• There is no need to distinguish between the real likelihood and reasonable suspicion formulations, and the single test of real danger applies to both.

The judgments

Key reasoning

• Public confidence in the administration of justice is important, but a test based on the perception of a reasonable person risks being decided without knowledge of the facts, whereas the court is able to ascertain the true circumstances.
• The word likelihood suggests probability and the word suspicion is too weak, so the test is expressed as a real danger, a lower threshold than probability but more than a fanciful possibility.
• Applying the test, the juror's connection to a person in the case was too remote and unknown to her to create a real danger that she would be biased against the defendant.

Where it fits in the module

For FHS Administrative Law, Gough is the foundation of the modern law on apparent bias and so on the content of the fair hearing, impartiality and independence of decision-makers, including those in specialised or closed proceedings. It poses the central question of who decides whether justice appears to have been done, the court or the public, and it contrasts with Strasbourg's objective approach under article 6. Students should know how Porter v Magill and Re Medicaments [2001] 1 WLR 700 moved the domestic test toward the fair-minded observer.

Criticisms

• A test asking the court itself to assess the danger of bias gives too little weight to the importance of appearances, since a decision-maker who looks biased damages confidence even if the court decides there was no danger.
• The real danger formula is hard to distinguish from the real likelihood test it was meant to replace, and may in practice be a higher threshold than the older cases required.
• Using the same test for jurors, judges and magistrates ignores that a jury is a lay body whose members come from the community and may have connections that a professional judge should not.