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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Gough (Robert) [1993] UKHL 1 (20 May 1993)
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Cite as: [1993] AC 646, [1993] 2 All ER 724, [1993] 97 Cr App Rep 188, [1993] 97 Cr App R 188, [1993] 2 WLR 883, [1993] UKHL 1

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/253

    Regina

    v.

    Gough (Appellant)
    (On Appeal from the Court of Appeal (Criminal Division))

    JUDGMENT

    Die Jovis 20° Maii 1993

    Upon Report from the Appellate Committee to whom was
    referred the Cause Regina against Gough, That the Committee had
    heard Counsel as well on Wednesday the 27th as on Thursday the
    28th days of January last upon the Petition and Appeal of Robert
    Brian Gough, praying that the matter of the Order set forth in
    the Schedule thereto, namely an Order of the Court of Appeal
    (Criminal Division) of the 2nd day of June 1992, might be
    reviewed before Her Majesty the Queen in Her Court of Parliament
    and that the said Order might be reversed, varied or altered or
    that the Petitioner might have such other relief in the premises
    as to Her Majesty the Queen in Her Court of Parliament might seem
    meet; as upon the case of the Director of Public Prosecutions (on
    behalf of Her Majesty) lodged in answer to the said Appeal; and
    due consideration had this day of what was offered on either side
    in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of the Court of Appeal (Criminal
    Division) of the 2nd day of June 1992 complained of in the said
    Appeal be, and the same is hereby, Affirmed and that the said
    Petition and Appeal be, and the same is hereby, dismissed this
    House: And it is further Ordered. That the certified guestion
    be answered in accordance with the principles set out in the
    speech of the Lord Goff of Chieveley.

    Cler: Parliamentor:

    Judgment: 20 May 1993

    HOUSE OF LORDS

    REGINA

    v.

    GOUGH
    (APPELLANT)

    (ON APPEAL FROM THE COURT OF APPEAL)
    (CRIMINAL DIVISION)

    Lord Goff of Chieveley
    Lord Ackner
    Lord Mustill
    Lord Slynn
    Lord Woolf


    LORD GOFF OF CHIEVELEY


    On 25 April 1991, at Liverpool Crown Court, the appellant Robert
    Brian Gough was convicted on an indictment containing a single count of
    conspiracy to rob, and was sentenced to a term of 15 years imprisonment.

    The indictment was based upon the commission of eight robberies in
    Liverpool between 13 April 1989 and 6 March 1990. The first seven
    robberies bore features of striking similarity. In all seven cases the premises
    concerned were a betting shop; the robbery was committed by two masked
    men, either at the beginning or at the end of the day; the men were armed,
    one with a shotgun and the other with a knife; and the modus operandi was
    similar. The prosecution contended that the first seven robberies had been
    committed by the same two men, the appellant and his brother David Stephen
    Gough. There was however insufficient evidence to link this brother with the
    eighth robbery, and the evidence against him on the other seven was weak.
    In the result, at the committal proceedings the prosecution applied for David
    Stephen Gough to be discharged on the ground that there was insufficient
    evidence against him; and at the trial the appellant was indicted on a single
    count that between the relevant dates he conspired with David Stephen Gough
    to commit the robberies.

    - 1 -

    On appeal, the appellant claimed that the learned judge should on his
    own motion have required the prosecution to proceed on an indictment
    containing eight substantive counts of robbery and not on the conspiracy
    count. That submission was rejected by the Court of Appeal. There was
    however another ground of appeal, which is the subject of the present appeal
    to your Lordships' House. This was that, by reason of the presence on the
    jury of a lady who was David Stephen Gough's next door neighbour, there
    was a serious irregularity in the conduct of the trial and for that reason the
    conviction of the appellant should be quashed. That submission was also
    dismissed by the Court of Appeal, and the appellant now appeals to your
    Lordships' House from that part of the decision of the Court of Appeal, with
    the leave of your Lordships' House.

    It was not until after the trial that it emerged that a member of the jury
    was David Stephen Gough's next door neighbour. In opening and in the
    indictment, he was referred to as David Gough; but in closing speeches he
    was referred to as David Stephen Gough. The defence case was based on the
    premise that David Stephen Gough was one of the robbers. He had a record
    of previous convictions, as had the appellant. During the trial, photographs
    of both brothers had been produced to the jury, and retained by them.
    Furthermore the vehicle alleged to have been used in the eighth robbery was
    owned by Elaine Gough, the wife of David Stephen Gough, and her statement
    including her address was read to the jury. The car must have been parked
    outside the juror's house for a number of months, and at the time at least of
    the eighth robbery.

    After sentence was passed, David Stephen Gough, who was then
    present in court for the first time, started shouting; and it was at this point
    that the juror, Mrs Smith, recognised him. He in his turn informed the
    defence that one member of the jury was his next door neighbour. This was
    drawn to the attention of the judge, but he rightly decided that he was by then
    functus officio. However the juror was later interviewed by the police, and
    subsequently swore an affidavit. The effect of the affidavit was summarised
    by the Court of Appeal as follows:

    1. When she began her service on the jury she did not recognise
      the name 'Gough' as she knew her neighbour as 'Steve'. Similarly she
      knew David's wife as Elaine during the two years that they had been
      her next door neighbours.

    2. The name David Gough was mentioned on a number of
      occasions during the course of the trial.

    3. She had no recollection of ever seeing the appellant before the
      trial; and she had no idea that he was the brother of her next door
      neighbour.

    -2-

    1. On April 24, 1991 during the trial, prosecution counsel read
      out a statement which contained the address, 3 Buckley Way (Mrs
      Smith lives at No. 2) and concerned the Capri motor car. She
      wondered whether Steve was David Gough but thought it could not be
      him as he was called Steve. She was confused.

    2. The photographs of the appellant and David Gough respectively
      were shown to the jury during the trial of the appellant. They were
      police photographs colloquially known as 'mug shots'. Mrs Smith did
      not recognise David.

    6. The fact that David Gough was her neighbour did not influence
    her thinking as a juror and she did not mention the matter to her
    fellow members of the jury.

    The affidavit was and remains unchallenged.

    It was on these facts that the question arose whether the courts should
    conclude that, by reason of the presence of Mrs Smith on the jury, there was
    such a possibility of bias on her part against the appellant that his conviction
    should be quashed. As I have already recorded, that question was answered
    by the Court of Appeal in the negative. The Court of Appeal however
    identified in the cases two strands of authority, revealing that differing criteria
    have been applied in the past when considering the question of bias. The two
    tests have, as will appear, themselves been variously described. The Court
    of Appeal identified them as being (1) whether there was a real danger of bias
    on the part of the person concerned, or (2) whether a reasonable person
    might reasonably suspect bias on his part. In the end, the court concluded
    that the former test was to be applied in cases concerned with jurors, and the
    latter in those concerned with magistrates or other inferior tribunals. The
    court therefore applied the real danger test in the present case and, on that
    basis, held that the appeal must fail, as indeed had been accepted by counsel
    for the appellant.

    In considering the subject of the present appeal, Your Lordships have
    been faced with a series of authorities which are not only large in number, but
    bewildering in their effect. It is only too clear how great a difficulty courts
    of first instance, and indeed Divisional Courts and the Court of Appeal, must
    face in cases which come before them; and there is a compelling need for
    your Lordships' House to subject the authorities to examination and analysis
    in the hope of being able to extract from them some readily understandable
    and easily applicable principles, thus obviating the necessity of conducting on
    each occasion a trawl through authorities which are by no means easy to
    reconcile. It is on that exercise that I now propose to embark.

    A layman might well wonder why the function of a court in cases such
    as these should not simply be to conduct an inquiry into the question whether
    the tribunal was in fact biased. After all it is alleged that, for example, a

    - 3 -

    justice or a juryman was biased, i.e. that he was motivated by a desire
    unfairly to favour one side or to disfavour the other. Why does the court not
    simply decide whether that was in fact the case? The answer, as always, is
    that it is more complicated than that. First of all, there are difficulties about
    exploring the actual state of mind of a justice or juryman. In the case of both,
    such an inquiry has been thought to be undesirable; and in the case of the
    juryman in particular, there has long been an inhibition against, so to speak,
    entering the jury room and finding out what any particular juryman actually
    thought at the time of decision. But there is also the simple fact that bias is
    such an insidious thing that, even though a person may in good faith believe
    that he was acting impartially, his mind may unconsciously be affected by bias
    - a point stressed by Devlin L.J. in Reg. v. Barnsley Licensing Justices, Ex
    parte Barnsley and District Licensed Victuallers' Association
    [1960] 2 Q.B.
    167, 187. In any event, there is an overriding public interest that there should
    be confidence in the integrity of the administration of justice, which is always
    associated with the statement of Lord Hewart C.J. in Rex. v. Sussex Justices,
    Ex parte McCarthy
    [1924] 1 KB 256, 259, that it is "of fundamental
    importance that justice should not only be done, but should manifestly and
    undoubtedly be seen to be done". I shall return to that case in a moment, for
    one of my tasks is to place the actual decision in that case in its proper
    context. At all events, the approach of the law has been (save on the very
    rare occasion where actual bias is proved) to look at the relevant
    circumstances and to consider whether there is such a degree of possibility of
    bias that the decision in question should not be allowed to stand.

    My initial reaction to the conclusion of the Court of Appeal in the
    present case was one of surprise that it should be necessary to draw a
    distinction between cases concerned with justices and those concerned with
    jurymen, and to conclude that different criteria fell to be applied in
    investigating allegations of bias in the two categories of case. Evidently, the
    Court of Appeal was itself unhappy in having to reach this conclusion, which
    it felt bound to reach on the authorities. Of course, there are some
    distinctions between the two groups of cases. For example, in the case of
    jurymen there is the inhibition, to which I have already referred, against
    investigating the state of mind of a juryman when reaching his decision in the
    privacy of the jury room. There is also the fact that the possibility of bias
    may come to light in the course of a jury trial - for example, a juryman may
    have unwisely indulged in conversation with a witness, or previous convictions
    of the accused may have accidentally been revealed to the jury. Situations
    such as these have to be dealt with by the judge when they arise; and he may
    be able to deal with the situation on the spot, for example by issuing a
    warning to the jury, or by discharging the particular juryman involved. And,
    if a verdict is challenged before the Court of Appeal on the ground of bias,
    the ultimate principles to be applied are to be found in section 2 of the
    Criminal Appeal Act 1968. But, even taking these matters into account, I am
    left with the feeling that there should be no reason, in principle, why the test
    of bias should be different in the two groups of cases - those concerned with
    justices and those concerned with juries. I shall however, as a matter of

    - 4 -

    convenience, submit the authorities concerning these two categories of case
    to separate consideration, before reaching any final conclusion on this point.

    The argument before the Appellate Committee was presented on the
    basis that there were two rival, alternative tests for bias to be found in the
    authorities, and that the result in the present case depended on the choice
    made by your Lordships' House between them. The first test, favoured by
    Mr Hytner for the appellant, was whether a reasonable and fair minded person
    sitting in the court and knowing all the relevant facts would have had a
    reasonable suspicion that a fair trial by the defendant was not possible. The
    second test, favoured by Mr Leveson for the Crown, was whether there was
    a real likelihood of bias. I shall for convenience refer to these two tests
    respectively as the reasonable suspicion test, and the real likelihood test. It
    was recognised by Mr Hytner before the Appellate Committee, as before the
    Court of Appeal, that if the real likelihood test is to be preferred, the appeal
    must fail.

    In fact, examination of the authorities reveals that selection of the
    appropriate test does not simply involve a choice between the two tests
    formulated by counsel in the present case. Thus, when the appropriate test
    in cases concerned with juries fell to be considered by your Lordships' House
    in Reg. v. Spencer [1987] AC 128, a variant of the real likelihood test, viz.
    whether there was a real danger of bias, was adopted, as it was by the Court
    of Appeal in the present case. There are also to be found in the authorities
    variants of the reasonable suspicion test; and sometimes the two tests seems
    to have been combined. At the heart of the present inquiry lies the need to
    identify the precise nature of these tests, and to consider what, if any, are the
    differences between them. For that purpose, I propose to consider first the
    cases concerned with justices and other inferior tribunals, where the principal
    problems appear to have arisen; and then to turn to the cases concerned with
    juries, of which Reg. v. Spencer is of great importance.

    Before I do so, however, I wish to draw attention to the fact that there
    are certain cases in which it has been considered that the circumstances are
    such that they must inevitably shake public confidence in the integrity of the
    administration of justice if the decision is to be allowed to stand. Such cases
    attract the full force of Lord Hewart's requirement that justice must not only
    be done but must manifestly be seen to be done. These cases arise where a
    person sitting in a judicial capacity has a pecuniary interest in the outcome of
    the proceedings. In such a case, as Blackburn J. said in Reg. v. Rand (1866)
    L.R. 1 Q.B. 230, 232:

    ". . . any direct pecuniary interest, however small, in the subject of
    inquiry, does disqualify a person from acting as a judge in the matter."

    The principle is expressed in the maxim that nobody may be judge in his own
    cause (nemo judex in sua causa). Perhaps the most famous case in which the
    principle was applied is Dimes v. Grand Junction Canal (1853) 3 H.L.C. 759,

    - 5 -

    in which decrees affirmed by Lord Cottenham L.C. in favour of a canal
    company in which he was a substantial shareholder were set aside by this
    House, which then proceeded to consider the matter on its merits, and in fact
    itself affirmed the decrees. Lord Campbell said (at p. 793):

    "No one can suppose that Lord Cottenham could be, in the remotest
    degree, influenced by the interest that he had in this concern; but, my
    Lords, it is of the last importance that the maxim that no man is to be
    a judge in his own cause should be held sacred."

    In such a case, therefore, not only is it irrelevant that there was in fact no bias
    on the part of the tribunal, but there is no question of investigating, from an
    objective point of view, whether there was any real likelihood of bias, or any
    reasonable suspicion of bias, on the facts of the particular case. The nature
    of the interest is such that public confidence in the administration justice
    requires that the decision should not stand.

    I turn next to the broader question of bias on the part of a member of
    the relevant tribunal. Here it is necessary first to put on one side the very
    rare case where actual bias is shown to exist. Of course, if actual bias is
    proved, that is an end of the case; the person concerned must be disqualified.
    But it is not necessary that actual bias should be proved; and in practice the
    enquiry is directed to the question whether there was such a degree of
    possibility of bias on the part of the tribunal that the court will not allow the
    decision to stand. Such a question may arise in a wide variety of
    circumstances. These include, but are by no means limited to, cases in which
    a member of the tribunal has an interest in the outcome of the proceedings,
    which falls short of a direct pecuniary interest. Such interests may vary
    widely in their nature, in their effect, and in their relevance to the subject
    matter of the proceedings; and there is no rule, as there is in the case of a
    pecuniary interest, that the possession of such an interest automatically
    disqualifies the member of the tribunal from sitting. Each case falls to be
    considered on its own facts.

    I turn first to the authorities concerned with justices, with whom I
    bracket members of other inferior tribunals. Of the authorities cited to the
    Appellate Committee in the course of argument, the first in point of time was
    Reg. v. Rand (1866) L.R. 1 Q.B. 230, to which I have already referred, in
    which Blackburn J. stated the law in terms of the real likelihood test. He
    referred (at p. 232) to cases in which there was "a real likelihood that the
    judge would, for kindred or any other cause, have a bias in favour of one of
    the parties" in which event "it would be very wrong in him to act". That test
    was later approved by three members of the Appellate Committee of this
    House in Frome United Breweries Co. Ltd. v. Bath Justices [1926] A.C. 586
    (a case concerned with licensing justices): see p. 591 per Viscount Cave
    L.C.; p. 607 per Lord Atkinson (citing Rex. v. Sunderland Justices [1901]
    2 K.B. 357); and p. 610 per Lord Sumner (quoting from the dissenting
    judgment of Atkin L.J., sub nom. Rex v. Bath Compensation Authority [1925]

    - 6 -

    1 K.B. 685, 712). Furthermore Lord Shaw of Dunfermline agreed with
    Viscount Cave L.C.; and, although the other member of the Appellate
    Committee, Lord Carson, spoke simply of "a likelihood of bias" (see p. 617),
    there is no reason to suppose that he intended any different test.

    At this stage, however, I must turn to the well known case of Rex. v.
    Sussex Justices, Ex parte McCarthy
    [1924] 1 KB 256. There the applicant
    came before magistrates charged with the offence of dangerous driving, which
    had involved a collision between his vehicle and another vehicle. The
    solicitor acting as magistrates' clerk on this occasion was also acting as
    solicitor for the other driver in civil proceedings against the applicant arising
    out of the collision. At the conclusion of the evidence before the magistrates,
    the acting clerk retired with them in case his help should be needed on a point
    of law; but in fact the magistrates did not consult him, and he himself
    abstained from referring to the case. The magistrates convicted the applicant,
    but his conviction was quashed by a Divisional Court. This is of course the
    case in which Lord Hewart C.J. let fall his much-quoted dictum, to which I
    have already referred. I think it helpful, however, to quote from his judgment
    in extenso (see pp. 258-9):

    "It is said, and, no doubt, truly, that when that gentleman retired in
    the usual way with the justices, taking with him the notes of the
    evidence in case the justice might desire to consult him, the justices
    came to a conclusion without consulting him, and that he scrupulously
    abstained from referring to the case in any way. But while that is so,
    a long line of cases shows that it is not merely of some importance but
    is of fundamental importance that justice should not only be done, but
    should manifestly and undoubtedly be seen to be done. The question
    therefore is not whether in this case the deputy clerk made any
    observation or offered any criticism which he might not properly have
    made or offered; the question is whether he was so related to the case
    in its civil aspect as to be unfit to act as clerk to the justices in the
    criminal matter. The answer to that question depends not upon what
    actually was done but upon what might appear to be done. Nothing is
    to be done which creates even a suspicion that there has been an
    improper interference with the course of justice. Speaking for myself,
    I accept the statements contained in the justices' affidavit, but they
    show very clearly that the deputy clerk was connected with the case in
    a capacity which made it right that he should scrupulously abstain from
    referring to the matter in any way, although he retired with the
    justices; in other words, his one position was such that he could not,
    if he had been required to do so, discharge the duties which his other
    position involved. His twofold position was a manifest contradiction.
    In those circumstances I am satisfied that this conviction must be
    quashed, . . ."

    The case was therefore concerned with the possibility that the acting
    magistrates' clerk, who plainly had such an interest in the outcome of the civil

    - 7 -

    proceedings that he might well be biased against the applicant in the
    proceedings before the magistrates, might influence the decision of the
    magistrates adversely to the applicant. Lord Hewart C.J. clearly thought that
    the acting magistrates' clerk's involvement in the civil proceedings was such
    that he should never have participated in the hearing before the magistrates,
    and went so far as to indicate that "even a suspicion that there had been an
    improper interference with the course of justice" is enough to vitiate the
    proceedings, an observation which has been invoked as the origin of the
    reasonable suspicion test. Indeed, following the Sussex Justices case, there
    developed a tendency for courts to invoke a test requiring no more than a
    suspicion of bias.

    However in a later case, also concerned with alleged bias on the part
    of a magistrates' clerk, Reg. v. Camborne Justices, Ex parte Pearce [1955]
    1 Q.B. 41, a Divisional Court, having received the assistance of the Solicitor-
    General as amicus curiae, approached the question on the basis that a real
    likelihood of bias must be established. In that case, the applicant was
    convicted of an offence under the Food and Drugs Act 1938. The information
    alleging the offence had been laid by a sampling officer, for the Cornwall
    County Council. The magistrates' clerk, who in the course of the hearing was
    invited into the magistrates' private room in order to advise them, was a
    member of the County Council (though not of the relevant committee of the
    Council, the Public Health and Housing Committee). For this reason, the
    applicant alleged that a reasonable suspicion of bias might arise, and that his
    conviction should be quashed. The court dismissed the application, holding
    that in the circumstances there was no real likelihood of bias on the part of the
    magistrates' clerk. Moreover the court was at pains to reject any suggestion
    that mere suspicion of bias was sufficient; and, while endorsing and fully
    maintaining the integrity of the principle reasserted by Lord Hewart C.J. in
    the Sussex Justices case, nevertheless deplored the principle "being urged as
    a warrant for quashing convictions or invalidating orders upon quite
    unsubstantial grounds and, indeed, in some cases, upon the flimsiest pretext
    of bias" (see pp. 51-52, per curiam).

    In the Sussex Justices case it must have been plain that there was a real
    likelihood of bias on the part of the acting magistrates' clerk; and the court
    went on to hold that, despite the fact that there had been no discussion about
    the case between the magistrates and the clerk, nevertheless the decision of the
    magistrates must be quashed, because nothing may be done which creates even
    a suspicion that there has been a wrongful interference with the course of
    justice. It appears that this decision was later used to suggest that a mere
    suspicion of bias on the part of a person involved in the process of
    adjudication is enough to require that the decision should be quashed. That
    approach was rejected in the Camborne Justices case, in which it was held
    that, since there was no real likelihood of bias on the part of the magistrates'
    clerk, there was no ground for quashing the magistrates' decision. The cases
    can therefore be distinguished on the facts. But the question remains
    whether, in a case involving a magistrates' clerk, it is enough to show that

    -8-

    there was a real likelihood of bias on the part of the clerk, or whether it must
    also be shown that, by reason of his participating in the decision-making
    process, there was a real likelihood that "he would impose his influence on the
    justices or give them wrong legal advice" (see [1955] 1 Q.B. 41, 46, per Sir
    Reginald Manningham-Buller Q.C., S.G., arguendo as amicus curiae). In
    my opinion, the latter view is to be preferred. Of course, nowadays a
    magistrates' clerk will not withdraw with the justices, but will only join them
    if invited to advise them on a question of law. If the clerk is not so invited,
    any bias on his part will ordinarily have no influence on the outcome of the
    proceedings; though if he has any interest in the outcome, it is obviously
    undesirable that he should be acting at all in the capacity of clerk in relation
    to those proceedings, in case his advice is called for. If however he is
    invited to give the magistrates advice, it is open to the court to infer that,
    having regard to the insidious nature of bias, there is a real likelihood of the
    clerk's bias infecting the views of the magistrates adversely to the applicant.

    I have had the opportunity of reading in draft the speech of my noble
    and learned Lord Woolf, and it follows from what I have said that I am in
    agreement with his conclusions both about the effect of the Sussex Justices and
    Camborne Justices cases, and that the only special category of case, in which
    it is unnecesary to enquire whether there was any real likelihood of bias,
    relates to circumstances where a person acting in a judicial capacity has a
    direct pecuniary interest in the outcome of the proceedings.

    In Reg. v. Barnsley Licensing Justices [1960] 2 Q.B. 167 at p. 187,
    Devlin L.J. also preferred the real likelihood test, considering that the term
    "real likelihood of bias" is not used to import the principle in Rex. v. Sussex
    Justices,
    which had been invoked by Salmon J. at first instance [1959] 2 Q.B.
    276, 286. It is, I think, desirable that I should quote the relevant passage
    from the judgment of Devlin L.J. in full (see pp. 186-187):

    "Here is an application by the co-operative society and there is sitting
    to decide it a bench which is wholly composed of members of the
    society and one woman whose husband was a member of the society,
    presided over by a chairman who had interested himself actively in the
    conduct of the affairs of the society or was desirous of doing so. Is
    there, in those circumstances, a real likelihood of bias? I am not quite
    sure what test Salmon J. applied. If he applied the test based on the
    principle that justice must not only be done but manifestly be seen to
    be done, I think he came to the right conclusion on that test. I cannot
    imagine anything more unsatisfactory from the public point of view
    than applications of this sort being dealt with by a bench which was so
    composed, and, indeed, it is conceded that steps will have to be taken
    to rectify the position. But, in my judgment, it is not the test. We
    have not to inquire what impression might be left on the minds of the
    present applicants or on the minds of the public generally. We have
    to satisfy ourselves that there was a real likelihood of bias - not merely
    satisfy ourselves that that was the sort of impression that might

    -9-

    reasonably get abroad. The term 'real likelihood of bias' is not used,
    in my opinion, to import the principle in Rex v. Sussex Justices to
    which Salmon J. referred. It is used to show that it is not necessary
    that actual bias should be proved. It is unnecessary, and, indeed,
    might be most undesirable, to investigate the state of mind of each
    individual justice. 'Real likelihood' depends on the impression which
    the court gets from the circumstances in which the justices were
    sitting. Do they give rise to a real likelihood that the justices might
    be biased? The court might come to the conclusion that there was
    such a likelihood, without impugning the affidavit of a justice that he
    was not in fact biased. Bias is or may be an unconscious thing and a
    man may honestly say that he was not actually biased and did not
    allow his interest to affect his mind, although, nevertheless, he may
    have allowed it unconsciously to do so. The matter must be
    determined upon the probabilities to be inferred from the
    circumstances in which the justices sit."

    It is plain from this passage that Devlin L.J. was concerned to get away from
    any test founded simply upon suspicion - "the sort of impression that might
    reasonably get abroad" - and to focus upon the actual circumstances of the
    case in order to decide whether there was in those circumstances a real
    likelihood of bias. His question - do the circumstances give rise to a real
    likelihood that the justices might be biased? - suggests that he was thinking of
    likelihood as meaning not probability, but possibility; the noun probability is
    not aptly qualified by the adjective "real", and the verb "might" connotes
    possibility rather than probability. Such a reading makes the real likelihood
    test very similar to a test requiring a real danger of bias. It is true that, at the
    conclusion of the passage which I have quoted, Devlin L.J. stated that the
    matter must be determined "upon the probabilities". I do not however think
    that he meant "on the balance of probabilities", but rather that he was
    emphasising that the question was to be answered by reference to the relevant
    circumstances.

    However nine years later, in Metropolitan Properties Co. (F.G.C.)
    Ltd. v. Lannon
    [1969] 1 QB 577, the law took a different turn. The case
    was concerned with a decision by a rent assessment committee, when
    determining fair rents for a block of flats in London. The rent so determined
    was substantially below the rent suggested even by the expert called by the
    tenants. The landlord sought to quash the decision on the ground that the
    chairman of the committee was a solicitor who had been concerned with
    advising tenants of flats in another comparable block of flats. The Court of
    Appeal, allowing the appeal from a Divisional Court, held that the facts were
    such as to give rise to an appearance of bias on the part of the chairman, and
    on that ground they quashed the decision of the committee, even though there
    was no actual bias on his part. In so holding, the court rejected the argument
    of counsel for the committee, who invited the court to proceed on the basis
    of the real likelihood test. Lord Denning M.R. and Edmund Davies L.J. both
    invoked the much quoted dictum of Lord Hewart C.J. in Rex. v. Sussex

    - 10 -

    Justices, and declined to follow Devlin L.J.'s approach in Reg. v. Barnsley
    Licensing Justices.
    Lord Denning M.R. stated the law as follows (at p. 599):

    "In Reg. v. Barnsley Licensing Justices, Ex parte Barnsley and District
    Licensed Victuallers' Association,
    Devlin L.J. appears to have limited
    that principle considerably, but I would stand by it. It brings home
    this point: in considering whether there was a real likelihood of bias,
    the court does not look at the mind of the justice himself or at the
    mind of the chairman of the tribunal, or whoever it may be, who sits
    in a judicial capacity. It does not look to see if there was a real
    likelihood that he would, or did, in fact favour one side at the expense
    of the other. The court looks at the impression which would be given
    to other people. Even if he was as impartial as could be, nevertheless
    if right-minded persons would think that, in the circumstances, there
    was a real likelihood of bias on his part, then he should not sit. And
    if he does sit, his decision cannot stand: see Reg v. Huggins [1895]
    1 Q.B. 563 and Rex v. Sunderland Justices, per Vaughan Williams
    L.J. [1901] 2 K.B. 357, 373. Nevertheless there must appear to be a
    real likelihood of bias. Surmise or conjecture is not enough: see Reg.
    v. Camborne Justices, Ex. parte Pearce
    [1955] 1 Q.B. 41, 48-51 and
    Reg. v. Nailsworth Licensing Justices, Ex parte Bird [1953] 1 W.L.R.
    1046. There must be circumstances from which a reasonable man
    would think it likely or probable that the justice, or chairman, as the
    case may be, would, or did, favour one side unfairly at the expense of
    the other. The court will not inquire whether he did, in fact, favour
    one side unfairly. Suffice it that reasonable people might think he did.
    The reason is plain enough. Justice must be rooted in confidence: and
    confidence is destroyed when right-minded people go away thinking:
    'The judge was biased.'"

    Edmund Davies L.J. said (at p. 606) that it was enough if "there is reasonable
    suspicion of bias on the part of one or more members of the adjudicating
    body"; and the third member of the court, Danckwerts L.J., appears to have
    proceeded, despite some doubt, upon a similar basis (at pp. 601-602).

    I shall return to this case in a moment, but I have to say that it left a
    legacy of some confusion behind it. In two cases, Reg. v. Uxbridge Justices,
    Ex parte Burbridge,
    The Times, 21 June 1972, and Reg. v. McLean, Ex parte
    Aikens
    (1974) 139 L.G.Rev. 261, Lord Widgery C.J. was prepared to proceed
    on the basis of the reasonable suspicion test, though in neither case was the
    choice of test decisive. However, in Reg. v. Altrincham Justices, Ex parte N.
    Pennington
    [1975] Q.B. 549, Lord Widgery did not feel able to decide
    whether the real likelihood test or the reasonable suspicion test was
    appropriate. In that case the appellants were convicted of offences of having
    sold vegetables by weight and having delivered a lesser weight to two county
    schools. The presiding justice at the trial was a member of the education
    committee, and was a governor of two schools, though not of those in

    - 11 -

    question. A Divisional Court quashed the convictions on the ground that the
    presiding justice should have disqualified herself from hearing a case where
    she had an active interest in the schools which were the victims of the offence.
    In so holding, Lord Widgery referred to both the real likelihood test and the
    reasonable suspicion test. However it was not clear to him from Lannon
    which of those tests fell to be applied. Furthermore, in Reg. v. Liverpool City
    Justices, Ex parte Topping
    [1983] 1 W.L.R. 119, in which justices became
    aware of other unrelated charges against the defendant whose case they were
    about to consider, the Divisional Court applied a form of the reasonable
    suspicion test derived from the judgment of Lord Widgery in Ex parte
    Burbridge;
    but they prefaced their choice of this test with the observation
    that, in agreement with a view expressed by Cross L.J. in Hannam v.
    Bradford City Council
    [1970] 1 W.L.R. 937, 949, there was little if any
    difference between the real likelihood test and the reasonable suspicion test,
    because if a reasonable person with the relevant knowledge thinks that there
    might well be bias, then there is in his opinion a real likelihood of bias - a
    view which appears to assume that real likelihood of bias means no more than
    a real possibility of bias.

    I have already quoted passages from the judgments of Lord Denning
    M.R. and Edmund Davies L.J. in Lannon [1969] 1 QB 577, 599, 606,
    which show that they did not in fact state the same test, Lord Denning's test
    being really no more than an adaptation of the real likelihood test, and only
    Edmund Davies L.J. enunciating a test founded upon real suspicion of bias.
    Furthermore Lord Denning, while purporting to differ from Devlin L.J. in the
    Barnsley Licensing Justices case [1960] 2 Q.B. 167, in fact differed very little
    from him. Thus, both considered that it was not necessary that actual bias
    should be proved, the court having therefore to proceed upon an impression
    derived from the circumstances; and that the question is whether such an
    impression reveals a real likelihood of bias. The only difference between
    them seems to have been that, whereas Devlin L.J. spoke of the impression
    which the court gets from the circumstances, Lord Denning looked at the
    circumstances from the point of view of a reasonable man, stating that there
    must be circumstances from which a reasonable man would think it likely or
    probable that the justice, or chairman, was biased. Since however the court
    investigates the actual circumstances, knowledge of such circumstances as are
    found by the court must be imputed to the reasonable man; and in the result
    it is difficult to see what difference there is between the impression derived
    by a reasonable man to whom such knowledge has been imputed, and the
    impression derived by the court, here personifying the reasonable man. It is
    true that Lord Denning expressed the test as being whether a reasonable man
    would think it "likely or probable" that the justice or chairman was biased.
    If it is a correct reading of his judgment (and it is by no means clear on the
    point) that it is necessary to establish bias on a balance of probabilities, I for
    my part would regard him as having laid down too rigorous a test. In my
    opinion, if, in the circumstances of the case (as ascertained by the court), it
    appears that there was a real likelihood, in the sense of a real possibility, of

    - 12 -

    bias on the part of a justice or other member of an inferior tribunal, justice
    requires that the decision should not be allowed to stand. I am by no means
    persuaded that, in its original form, the real likelihood test required that any
    more rigorous criterion should be applied. Furthermore the test as so stated
    gives sufficient effect, in cases of apparent bias, to the principle that justice
    must manifestly be seen to be done, and it is unnecessary, in my opinion, to
    have recourse to a test based on mere suspicion, or even reasonable suspicion,
    for that purpose. Finally there is, so far as I can see, no practical distinction
    between the test as I have stated it, and a test which requires a real danger of
    bias, as stated in Reg. v. Spencer [1987] AC 128. In this way, therefore,
    it may be possible to achieve a reconciliation between the test to be applied
    in cases concerned with justices and other members of inferior tribunals, and
    cases concerned with jurors.

    I turn therefore to the cases concerned with jurors; and here the
    relevant authorities support the view which I have just expressed. It is true
    that, after Lannon, there were cases in which the reasonable suspicion test was
    adopted (see e.g., Reg. v. Pennington [1985] 81 Cr. App. R. 217). However,
    it is appropriate to turn straight to the leading authority, which is the decision
    of your Lordships' House in Reg. v. Spencer [1987] AC 128. In that case
    the defendants, who were members of the nursing staff at a secure hospital,
    were convicted in two separate trials of ill treating patients at the hospital,
    contrary to section 126 of the Mental Health Act 1959. On appeal, the
    principle issue was one of corroboration. But in addition a question arose
    with regard to one of the jurors at the first trial. He had clearly demonstrated
    in the course of the trial that he was biased against the defendants. At first
    the judge, having consulted counsel, decided to take no action. However, it
    then transpired that the juror's wife worked at another mental hospital which
    figured in the evidence at the trial. The judge, fearing that the juror might
    have heard things from his wife which it would be better if he had not heard,
    decided to discharge him; but, discovering that the juror was in the habit of
    giving three other members of the jury a lift home, warned the members of
    the jury that they should not discuss the case further with him. On the
    following morning, however, defence counsel submitted that the remainder of
    the jury should be discharged; but the judge decided, in the exercise of his
    discretion, not to do so. Counsel for the prosecution had submitted that the
    test which the judge should apply was that the jury should not be discharged
    unless it could be shown that there was a very high risk that the apparently
    biased jury had influenced any of his fellow jurors. Lord Ackner (with whom
    Lord Brandon of Oakbrook and Lord Mackay of Clashfern agreed) however
    held that the correct test was that stated by the Court of Appeal in Reg. v.
    Sawyer [1980] 71 Cr. App. R. 283, 285, viz. whether there was a real danger
    that the appellant's position had been prejudiced in the circumstances. This
    was the test which had in fact been applied by the Court of Appeal, but they
    had concluded that there was no realistic chance that the three jurors who had
    travelled in the car had been prejudiced or biased by what they had heard. On
    this point, however, Lord Ackner found himself unable totally to dismiss that
    possibility, and he concluded, with the remainder of the Appellate Committee,

    - 13 -

    that the verdict was unsafe and the appeal must be allowed [1987] AC 128,
    146. Subsequently, the test so established in Reg. v. Spencer was applied by
    the Court of Appeal in Reg. v. Putnam (1990) 93 Cr. App. R. 281. I should
    add that in Reg. v. Morris (Otherwise Williams) (1990) 93 Cr. App. R. 102,
    in which the reasonable suspicion test was applied, it appears that Reg. v.
    Spencer
    was not cited to the court. In the light of the conclusion which I have
    reached, I do not think that it is necessary for me to consider any more of the
    earlier cases concerned with allegation of bias on the part of jurors. I only
    wish to say that Reg. v. Box [1964] 1 Q.B. 430, to which some criticism was
    directed in the course of argument, appears to have been concerned primarily
    with an allegation of actual bias, and to have reasserted the principle that
    knowledge by a juror of a defendant's character or previous convictions is not
    an automatic disqualification.

    There are however two features of jury cases to which I will briefly
    draw attention. The first is that the possibility of bias on the part of a juror
    may, as in the case of Spencer itself, come to the attention of the judge in the
    course of the trial. In such circumstances the judge, in deciding whether to
    exercise his discretion to discharge one or more members of the jury, should
    apply the same test as falls to be applied on appeal by the Court of Appeal,
    viz. whether there is a real danger of bias affecting the mind of the relevant
    juror or jurors. Even if the judge decides that it is unnecessary to do more
    than issue a warning to the jury or to a particular juror, and thereby isolate
    and neutralise any bias that might otherwise occur, the effect of his warning
    is not merely to ensure that the jurors do not allow any possible bias to affect
    their minds, but also to prevent any lack of public confidence in the integrity
    of the jury. It is unnecessary for me to say any more on this subject, to
    which no argument was addressed in the present case. Second, if any
    question of bias on the part of a juror arises on appeal, the Court of Appeal,
    having applied the real danger test, will then proceed in the light of its
    conclusion on that test to exercise its powers under section 2 of the Criminal
    Appeal Act 1968, in the normal way, as was done by your Lordships' House
    in Spencer.

    I wish to add that in cases concerned with allegations of bias on the
    part of an arbitrator, the test adopted, derived from Ex parte Topping [1983]
    1 W.L.R. 119, has been whether the circumstances were such that a
    reasonable man would think that there was a real likelihood that the arbitrator
    would not fairly determine the issue on the basis of the evidence and
    arguments adduced before him (see Ardahalian v. Unifert International S.A.
    (The Elissar)
    [1984] 2 Lloyd's Rep. 84, and Bremer Handelsgesellschaft
    m.b.H.
    v. Ets. Soules et Cie. [1985] 1 Lloyd's Rep. 160, [1985] 2 Lloyd's
    Rep. 199). Such a test is, subject to the introduction of the reasonable man,
    consistent with the conclusion which I have reached, provided that the
    expression "real likelihood" is understood in the sense I have described, i.e.
    as meaning that there is a real possibility or, as I would prefer to put it, a real
    danger of bias. It would appear to have been so understood by Mustill J. (as

    - 14 -

    he then was) in Bremer [1985] 1 Lloyd's Rep. 160, 164, where he referred
    to "an evident risk" of bias.

    In conclusion, I wish to express my understanding of the law as
    follows. I think it possible, and desirable, that the same test should be
    applicable in all cases of apparent bias, whether concerned with justices or
    members of other inferior tribunals, or with jurors, or with arbitrators.
    Likewise I consider that, in cases concerned with jurors, the same test should
    be applied by a judge to whose attention the possibility of bias on the part of
    a juror has been drawn in the course of a trial, and by the Court of Appeal
    when it considers such a question on appeal. Furthermore, I think it
    unnecessary, in formulating the appropriate test, to require that the court
    should look at the matter through the eyes of a reasonable man, because the
    court in cases such as these personifies the reasonable man; and in any event
    the court has 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 relevant time. Finally, for the avoidance of doubt, I
    prefer to state the test in terms of real danger rather than real likelihood, to
    ensure that the court is thinking in terms of possibility rather than probability
    of bias. Accordingly, having ascertained the relevant circumstances, the court
    should ask itself whether, having regard to those 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 unfairly regarded)
    with favour, or disfavour, the case of a party to the issue under consideration
    by him; though, in a case concerned with bias on the pan of a magistrates'
    clerk, the court should go on to consider whether the clerk has 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.

    It follows from what I have said that the Court of Appeal applied the
    correct test in the present case. On that test, it was accepted by Mr Hytner
    that there was no ground for disturbing the jury's verdict. I would therefore
    dismiss the appeal.

    LORD ACKNER

    My Lords,

    I have had the advantage of reading in draft the speech prepared by my
    noble and learned friend Lord Goff of Chieveley, and for the reasons he
    gives, I, too, would dismiss the appeal.

    - 15 -

    LORD MUSTILL

    My Lords,

    I have had the advantage of reading in draft the speech prepared by my
    noble and learned friend Lord Goff of Chieveley, and for the reasons he
    gives, I, too, would dismiss the appeal.

    LORD SLYNN OF HADLEY
    My Lords,

    I have had the advantage of reading in draft the speech prepared by my
    noble and learned friend Lord Goff of Chieveley, and for the reasons he
    gives, I, too, would dismiss the appeal.

    LORD WOOLF

    My Lords,

    I have had the advantage of reading in draft the speech of Lord Goff
    of Chieveley and I agree that this appeal should be dismissed for the reasons
    which he gives. In particular, I agree that the correct test to adopt in deciding
    whether a decision should be set aside on the grounds of alleged bias is that
    given by Lord Goff, namely, whether there is a real danger of injustice having
    occurred as a result of the alleged bias.

    The test to be applied in each case has as its source the maxim that
    nobody may be judge in his own cause. No distinction arises in the
    application of the test because it is the clerk to the justices rather than the
    justices themselves who are alleged to be biased. A clerk to the justices is
    part of the judicial process in the magistrates court. This is accepted by Lord
    Hewart C.J., when he said in his judgment in the Rex. v. Sussex Justices, Ex
    parte McCarthy
    [1924] 1 KB 256, 259, that the clerk's position "was such
    that he could not, if he had been required to do so, discharge the duties which
    his other position involved. His twofold position was a manifest
    contradiction." (The other position, being a member of the firm of solicitors
    acting for the other driver who was involved in the accident which gave rise
    to the prosecution.)

    This is also made clear in the judgment in Reg. v. Camborne Justices,
    Ex parte Pearce
    [1955] 1 Q.B. 41, where the facts were very similar to those

    - 16 -

    in the Sussex Justices case. The Camborne Justices case also involved a
    justice's clerk. The proceedings before the justices were the result of an
    information under the Food and Drugs Act 1938 laid on behalf of the County
    Council. The clerk to the justices was at the time a member of the council,
    but not a member of the council's health committee responsible for laying the
    information. At the hearing he was sent for to advise the justices on a point
    of law, but according to the evidence put before the Divisional Court he did
    not discuss the facts of the case and having given his advice returned to the
    Court. Unlike the Sussex Justices case, where the argument appears to have
    been limited (the applicant was not called upon to address the court) and the
    judgment was not reserved, in the Camborne Justices case the matter was fully
    argued, Sir Reginald Manningham-Buller Q.C., S.-G. and J.P. Ashworth
    appearing as amici curiae and a reserve judgment of the court was given by
    Slade J. on behalf of a Divisional Court which was presided over by Lord
    Goddard C.J. That judgment described the question which the court had to
    decide, at p. 47, as being:

    "What interest in a judicial or quasi judicial proceeding does the law
    regard as sufficient to incapacitate a person from adjudicating or
    assisting in adjudicating on it upon the ground of bias or appearance
    of bias?"

    To that question the court gave the answer (at p. 51):

    "that to disqualify a person from acting in a judicial or quasi judicial
    capacity upon the ground of interest (other than pecuniary or
    proprietary) in the subject matter of the proceeding, a real likelihood
    of bias must be shown."

    As the court concluded on the facts, that there was no real likelihood of bias
    application was dismissed. However, for present purposes the importance of
    the case is that the court did not consider they were dealing with a special
    category of case and applied a test which I regard as being the equivalent of
    the real danger test.

    The problem created by the Sussex Justices case [1924] 1 KB 256
    arises because Lord Hewart preceded his celebrated remark, at p. 259: "it is
    not merely of some importance but is of fundamental importance that justice
    should not only be done, but should manifestly and undoubtedly be seen to be
    done", with the comment, at pp. 258-259:

    "It is said, and, no doubt, truly, that when that gentleman retired in
    the usual way with the justices, taking with him the notes of the
    evidence in case the justices might desire to consult him, the justices
    came to a conclusion without consulting him, and that he scrupulously
    abstained from referring to the case in any way."

    - 17 -

    and later added: "speaking for myself, I accept the statements contained in the
    justices' affidavit". If these passages in his judgment are taken at face value,
    then they are consistent with the court in the Sussex Justices case coming to
    the conclusion that there was no risk of actual bias and the court was therefore
    applying some different test from the real danger test when deciding that the
    decision had to be quashed. A similar situation arises in relation to the
    comment of Lord Campbell in the Dimes v. Grand Junction Canal (1853) 3
    H.L. Cas. 759, 793, case when he, alone among the members of the House
    of Lords:

    "No one can suppose that Lord Cottenham could be, in the remotest
    degree, influenced by the interest that he had in this concern; but, my
    Lords, it is of the last importance that the maxim that no man is to be
    a judge in his own cause should be held sacred."

    It could well be that too much attention should not be attached to the
    remarks made as to the bona fides of the Lord Chancellor in the Dimes case
    and the justices' clerk in the Sussex Justices case, although, no doubt the Lord
    Chancellor and the clerk respectively found them comforting. It must be
    remembered that except in the rare case where actual bias is alleged, the court
    is not concerned to investigate whether or not bias has been established.
    Whether it is a judge, a member of the jury, justices or their clerk, who is
    alleged to be biased, the courts do not regard it as being desirable or useful
    to inquire into the individual's state of mind. It is not desirable because of the
    confidential nature of the judicial decision making process. It is not useful
    because the courts have long recognised that bias operates in such an insidious
    manner that the person alleged to be biased may be quite unconscious of its
    effect.

    It is because the court in the majority of cases does not inquire whether
    actual bias exists that the maxim that justice must not only be done but seen
    to be done applies. When considering whether there is a real danger of
    injustice, the court gives effect to the maxim, but does so by examining all the
    material available and giving its conclusion on that material. If the court
    having done so is satisfied there is no danger of the alleged bias having
    created injustice, then the application to quash the decision should be
    dismissed. This, therefore, should have been the result in the Sussex Justices
    case if Lord Hewart's remarks are to be taken at face value and are to be
    treated as a finding, and not merely an assumption, that there was no danger
    of the justices' decision being contaminated by the possible bias of the clerk.

    The Dimes case, 3 H.L. Cas. 759, is different because it involved
    direct pecuniary or proprietary interest on the part of the Lord Chancellor in
    the subject matter of the proceedings and this creates a special situation, as
    was pointed out at the beginning of the judgment in the Camborne Justices
    case [1955] 1 Q.B. 41,47:

    - 18 -

    "... any direct pecuniary or proprietary interest in the subject matter
    of proceeding, however small, operates as an automatic disqualification. In
    such a case the law assumes bias."

    It was because Lord Hewart C.J's judgment in the Sussex Justices case
    [1924] 1 KB 256, 258-259, has created difficulties that in the Camborne
    Justices
    case, where exactly the same issue was involved, the court warned
    against the misuse of Lord Hewart's judgment since it was being "urged as a
    warrant for quashing convictions or invalidating orders upon quite
    unsubstantial grounds and, indeed, in some cases upon the flimsiest pretext of
    bias", (pp. 51-52). As the court pointed out the continued citation of Lord
    Hewart's maxim may lead to the erroneous impression that "it is more
    important that justice should appear to be done than that it should, in fact, be
    done."

    I therefore suggest that the Sussex Justices case [1924] 1 KB 256
    neither creates nor should it be placed in a separate category. The proper test
    which Lord Goff has identified should have been applied in that case as it was
    in the Camborne Justices case [1955] 1 Q.B. 41. There is only one
    established special category and that exists where the tribunal has a pecuniary
    or proprietary interest in the subject matter of the proceedings as in Dimes,
    3 H.L. Cas. 759. The courts should hesitate long before creating any other
    special category since this will immediately create uncertainty as to what are
    the parameters of that category and what is the test to be applied in the case
    of that category. The real danger test is quite capable of producing the right
    answer and ensure that the purity of justice is maintained across the range of
    situations where bias may exist.

    - 19 -


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