Gough
R v Gough [1993] AC 646
Parties and outcome
- Appellant
- Robert Brian Gough (criminal defendant and appellant)
- Respondent
- The Crown (prosecution and respondent)
- Outcome
- The Crown won: Gough’s appeal was dismissed and his conviction stood.
Cited by
- Pinochet (No 2)
The parties' submissions Miss Montgomery in her very persuasive submissions on behalf of Senator Pinochet contended (1) that, although there was no exact precedent, your Lordships' House must have jurisdiction to set aside its own orders where they have been improperly made, since there is no other court which could correct such impropriety; (2) that (applying the test in Reg. v. Gough [1993] A.C. 646 ) the links between Lord Hoffmann and A.I. were such that there was a real danger that Lord Hoffmann was biased in favour of A.I. or alternatively (applying the test in Webb v. The Queen (1994) 181 C.L.R. 41 ) that such links give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that Lord Hoffmann might have been so biased. *132 On the other side, Mr. Alun Jones accepted that your Lordships had power to revoke an earlier order of this House but contended that there was no case for such revocation here.
1 Q.B. 230 ; Reg. v. Gough [1993] A.C. 646 , 661.
I do, however, wish to make it clear (if I have not already done so) that my decision is not that Lord Hoffmann has been guilty of bias of any kind: he was disqualified as a matter of law automatically by reason of his directorship of A.I.C.L., a company controlled by a party, A.I. *136 For the same reason, it is unnecessary to determine whether the test of apparent bias laid down in Reg. v. Gough [1993] A.C. 646 ("is there in the view of the court a real danger that the judge was biased?") needs to be reviewed in the light of subsequent decisions.
the matter proceeds in the ordinary way, but, if the disclosure is not made, either through neglect or inadvertence, the judgment becomes voidable and may be set aside." As my noble and learned friend, Lord Goff of Chieveley, said in Reg. v. Gough [1993] A.C. 646 , 661, the nature of the interest is such that public confidence in the administration of justice requires that the judge must withdraw from the case or, if he fails to disclose his interest and sits in *141 judgment upon it, the decision cannot stand.
The test which was approved by your Lordships' House in Reg. v. Gough [1993] A.C. 646 is whether *142 there was a real danger of bias on the part of the relevant member of the tribunal.
This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence." In his judgment in Reg. v. Gough [1993] A.C. 646 , 659 my noble and learned friend, Lord Goff of Chieveley, made reference to the great importance of confidence in the integrity of the administration of justice, and he said: "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 K.B. 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.'" Then referring to the Dimes case, he said, at p. 661: " ...
- Liverpool
12. Miss Patterson's elaborate attack on the test of when an interest should be disclosed founds on the case of R -v- Gough [1993] AC 646. In Gough, in the context of the examination of a juror's conduct in a criminal case, the Court was presented with two conflicting lines of authority. The finding in Gough is analysed in a decision of this Court presided over by the Lord Chief Justice (Locabail (UK) Limited -v- Bayfield Properties Limited (17th November 1999). For present purposes it is simply necessary to say that the two competing tests were whether there was "... a reasonable apprehension or suspicion of bias" or "... a real danger or possibility of bias". The former test accords with the Code (and was clearly the test used by the Commissioner). The latter test is the one approved by their Lordships in Gough, and is now binding on all subordinate courts. It is not disputed that the more stringent test (ie, that with the lower threshold for disclosure) is the test to be found in the Code.
54. Ms Patterson submitted that that test is more stringent than the test of apparent bias now applied in the courts. She referred us to R v Gough [1993] AC 646. The distinction, as Lord Justice Henry has pointed out in his judgment, is between "a reasonable apprehension or suspicion of bias" and "a real danger or possibility of bias"; although it is pertinent to keep in mind the observation of Lord Hope of Craighead in R v Bow Street Magistrates, ex parte Pinochet (No 2) [1999] 2 WLR 272, at page 290, that the application of either test to particular facts is likely to produce the same result.
- Porter v Magill
115. In my consideration of the disqualification application, I have sought to apply the test formulated in R v Gough [1993] AC 646 , namely ‘whether, in all the circumstances of the case, there appeared to be a real danger of bias …’ . In my view, a person having ascertained the relevant circumstances would not consider that I will regard unfairly any person's case with disfavour. It has been suggested that I will find it difficult to depart from my provisional findings and views because of the publicity given to these. I feel no such inhibition. Nor, in my view, is there any ground on which I should reasonably be thought to be so inhibited. I have always made it plain that before reaching any conclusion I will consider any representations made to me. In my view, that is a process which necessarily conveys to any reasonable person the point that my conclusions may not coincide with my provisional findings and views. My view is that no real danger of bias exists and nor is there any other basis on which I should disqualify myself.”
99.. The test for apparent bias which the auditor sought to apply to himself, and was applied in its turn by the Divisional Court, was that which was described in R v Gough [1993] AC 646 by Lord Goff of Chieveley where he said at p 670: “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 have been 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 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 …”