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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
    1. Cooper v Wandsworth Board of Works [1863] 143 ER 414
    2. R v Metropolitan Police Commissioner, ex parte Parker [1953] 2 All ER 717
    3. Ridge v Baldwin and others [1963] 2 All ER 66
    4. Re K (H) (an infant) [1967] 1 All ER 226
    5. Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904
    6. McInnes v Onslow Fane and another [1978] 3 All ER 211
    7. R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545
    8. Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629
    9. R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
    10. R v North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850
    11. Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115
    12. R (on the application of Bibi) v London Borough of Newham; [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).
    13. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd (HL) [2002] UKHL 8; 2002] 4 All ER 58.
    14. Metropolitan Properties Co (F G C) Ltd v Lannon and Others [1968] 3 All ER 304
    15. R v Gough [1993] 2 All ER 724
    16. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
    17. Taylor v Lawrence [2003] QB 528
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Gough [1993] 2 All ER 724

LORD GOFF OF CHIEVELEY. On 25 April 1991 in the Crown Court at Liverpool 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....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.....

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. [T]here 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....

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 justice or a juryman was biased, ie 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 LJ in R v Barnsley County Borough Licensing Justices, ex p Barnsley and District Licensed Victuallers Association [1960] 2 All ER 703 at 715. 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 CJ in R v Sussex Justices, ex p McCarthy [1923] All ER Rep 233 at 234 that it is ( "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done".....

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.... The first test, favoured by Mr Hytner QC 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 QC 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....

I must turn to the well-known case of R v Sussex Justices, ex p McCarthy, [1923] All ER Rep 233. 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 CJ let fall his much-quoted dictum, to which I have already referred. I think it helpful, however, to quote from his judgment in extenso ([1923] All ER Rep 233 at 234):

"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. 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 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 CJ 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 has 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, R v Camborne Justices, ex p Pearce [1954] 2 All ER 850, 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 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..., 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 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'.... 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.....

In R v Barnsley County Borough Licensing Justices, ex p Barnsley and District Licensed Victuallers Association [1960] 2 All ER 703, [1960] 2 QB 167 Devlin LJ also preferred the real likelihood test....

It is plain...that Devlin LJ was concerned to get away from any test founded simply upon suspicion ( the sort of impression which 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;.... Such a reading makes the real likelihood test very similar to a test requiring a real danger of bias...

However, nine years later, in Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 3 All ER 304, [1969] 1 QB 577, the law took a different turn... 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 it 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...

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, R v Uxbridge Justices, ex p Burbridge (1972) Times, 21 June, and R v McLean, ex p Aikens (1974) 139 JP 261, Lord Widgery CJ was prepared to proceed on the basis of the reasonable suspicion test, though in neither case was the choice of test decisive. However, in R v Altrincham Justices, ex p Pennington [1975] 2 All ER 78, [1975] QB 549 Lord Widgery CJ 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 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 CJ referred to both the real likelihood test and the reasonable suspicion test. However it was not clear to him from Metropolitan Properties Co (FGC) Ltd v Lannon which of those tests fell to be applied. Furthermore, in R v Liverpool City Justices, ex p Topping [1983] 1 All ER 490, [1983] 1 WLR 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 CJ in Ex p Burbridge; but it prefaced its choice of this test with the observation that, in agreement with a view expressed by Cross LJ in Hannam v Bradford City Council [1970] 2 All ER 690 at 700, [1970] 1 WLR 937 at 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.....

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 part 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.