R v Gough

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.

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.

4. 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.

5. 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 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 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". 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...