The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with that brother to commit burglaries. The juror had sworn an affidavit that she had not not known of the connection.
Held: The appeal was dismissed. The House set out the test for bias. The test for bias in a juror where apparent bias was alleged, was whether there was a real danger that the defendant had been denied a fair trial.
Lord Woolf said: ‘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 C.J’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.’
Lord Goff of Chieveley said that was meant by bias was extraneous prejudice and predilection: ‘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; ‘
‘ 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, 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.’ and ‘ 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.’
Lord Goff of Chieveley, Lord Woolf
Independent 26-May-1993, Times 24-May-1993,  AC 646,  2 All ER 727,  UKHL 1,  97 Cr App R 188,  2 WLR 883
England and Wales
Appeal from – Regina v Gough CACD 2-Jun-1992
A juror had lived next door to a party to the burglary alleged against the defendant. The defendant alleged bias. The juror said she had been unaware of the connection.
Held: The question of whether there had been bias in a jury trial is . .
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
Cited – Regina v Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers’ Association 1960
Even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by a bias. Devlin LJ said: ‘Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and . .
Cited – Regina v Camborne Justices ex parte Pearce QBD 1954
The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor . .
Cited – Regina v Spencer; Regina v Smails HL 24-Jul-1986
The defendants were nurses employed at Rampton secure hospital accused of assaults on patients. The witnesses against them had been inmates. They complained that the judge had failed to direct the jurors about the dangers of relying upon their . .
Cited – Regina v Francois Pierre Marcellin Thoron CACD 30-Jul-2001
The appellant had been convicted that as a haulage contractor he had conspired with his drivers to cause them to drive beyond the permitted hours, and in other ways contrary to their safety. He argued it was a misuse of the Act to ally it with the . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Modified – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Cairnstores Ltd Generics (UK) Ltd and Another v Aktiebolaget Hassle CA 22-Oct-2002
Two patents had been invaildated for obviousness. They related to coatings on medicinal pills. The patent holder said the judge’s interruptions indicated bias.
Held: The sumissions were unjustified. The interventions were by no means . .
Explained – Regina v Inner West London Coroner Ex Parte Dallaglio, and Ex Parte Lockwood Croft CA 16-Jun-1994
A coroner’s comment that the deceased’s relative was ‘unhinged’ displayed a bias which was irreparable. ‘The description ‘apparent bias’ traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is . .
Cited – Regina v Stipendiary Magistrate for Norfolk ex parte Dean Taylor Admn 1-Jul-1997
The prosecutor applied ex parte to the magistrate for an order that he need not disclose certain material to the defendant. Though the hearing was inter partes, the content of the protected material was not shown to the defendant’s solciitor. . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
Cited – Regina on the Application of Mahfouz v The Professional Conduct Committee of the General Medical Council CA 5-Mar-2004
The doctor requested members of the disciplinary tribunal to recuse themselves when, after the first day of the hearing they saw prejudicial material in newspapers which material was not in evidence. They had further declined to allow an adjournment . .
Doubted – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Cited – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Cited – Regina v Oke CACD 25-Jun-1997
The defendant said that the husband of a woman juror had sat in court while submissions were made about evidence later excluded form the jury. The evidence was of previous convictions and a similar prosecution against the defendant.
Held: Some . .
Cited – Meerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Webb and Hay v The Queen 30-Jun-1994
(Australia) Criminal Law – Jury – Impartiality – Murder trial – Juror giving flowers to victim’s mother – Whether juror or jury to be discharged Appropriate test – Reasonable apprehension of lack of impartiality or real danger of lack of . .
Cited – Flaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
Cited – Gillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
Cited – Morrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .
Cited – Regina v Haringey Justices Employment ex parte Julian Branco Admn 24-Oct-1997
The defendant sought judicial review of his conviction saying that the chairwoman knew his mother and was antipathetic to her, and had shown bias in the trial.
Held: There had been confusion, but no real risk of bias. The review was refused. . .
Cited – Regina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
Cited – Regina v Khan and Hanif CACD 14-Mar-2008
Each defendant appealed against his conviction saying that the presence on the jury of certain people involved in the law gave the appearance of bias.
Held: The court should be made aware if any potential juror either is or has been a police . .
Cited – Regina v KS CACD 17-Nov-2009
The jury had been discharged by the judge after finding jury tampering, and he decided to continue alone. The jury had not known of the earlier convictions of others involved in the alleged conspiracy, but the judge did and he had made reference to . .
Cited – Regina v Stone CACD 14-Feb-2001
The defendant appealed against his conviction in 1998 of murder based on a confession said to have been made to a fellow prisoner on remand. A witness supporting that confession said after the trial that he had lied under police pressure. The appeal . .
Cited – Kaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .
Cited – Abegaze v IPR Technical Development Ltd EAT 2-Sep-1998
The court was asked whether the proposed appeal raised an arguable point of law. The claimant had requested witness orders, but the tribunal had refused them. Five of the six requested attended as defentant’s witnesses.
Held: The Industrial . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Natural Justice
Updated: 11 December 2021; Ref: scu.183296