Authored By: Aawisah Hasan
Amity University Dubai
INTRODUCTION
What does it mean?
Judicial impartiality, a core principle recognized as a fundamental tenet of the legal system, and the concept of natural justice, judges are humans – humans with experiences, ideologies, emotions, feelings, behaviours, moral values, and other complicated phenomena. For the purpose of achieving the objectives of law, they are expected to separate their personal emotions while judging a case. However, when discussing judicial discretion, what is important is not that judges are impartial but how well the system of law can maintain the public’s confidence when circumstances create a reasonable appearance of a decision-maker being biased.
To evaluate the question and consequently arrive at an answer, this article analyzes a case law concerned with the issue of apparent bias ‘R v Gough 1993’[1]. This article examines the principle of judicial impartiality primarily within the context of English common law.
Facts of the case ( R v Gough [1993] AC 646)
The facts of the case revolve around two brothers, namely, Robert Brian Gough and David Stephen Gough, accused of eight robberies in the area of Liverpool, England, between the timeframe of march 13, 1989 to march 6, 1990. Robert Gough was charged with one count of conspiracy to rob and was sentenced to 15 years of imprisonment.
The first seven cases demonstrated a similar modus operandi; in these cases, two masked robbers would appear at betting grounds, and the robbery would take place. However, in the eighth case only one of the brothers was a suspect while the other due to insufficient evidence was not a true suspect, David Gough was therefore released and not charged due to lack of evidence.
The appellant, after being convicted, filed an appeal to the Courts of Appeal; however, his appeal was rejected. After the conviction and rejection of the appellant appeal it was discovered that one of the jurors, Mrs. H, was next-door neighbour to David Stephen Gough. Following this discovery Mrs. H, had to sign an affidavit, that remains unchallenged.
Due to the rejection of the appellant’s appeal, the appellant has appealed to the hon’ble House of Lords.
EXISTING LEGISLATION
The Test: Real Danger
R v Gough[2], was a landmark case that established the ‘real danger test’ in judicial proceedings. It was a case that appeared before the Appellant Committee, where the Hon’ble Lords considered mainly two appropriate tests to assess the appeal, ‘real danger’ and ‘real likelihood’ tests.
Lord Goff of Chieveley examined the two tests and identified their similarities, and concluded that both the tests were actually similar in nature. He also better defined them as tests that assess bias on the real likelihood of the bias and he better termed it the ‘real danger test’[3]. He interpreted the word likelihood as a possibility of bias rather than an existence of proof on the balance of probabilities. According to Lord Goff the actual proof was not required to prove the existence of bias but rather the possibility of the bias. The possibility of bias was assessed based on the factors such as the presence of direct pecuniary interest of the judges or the juror. On this basis the Lords unanimously rejected the appeal by using the ‘real danger test’, which was similar to the test that was previously used by the Courts of Appeal.
The ideology of this test lies behind a famous quote by CJ Lord Hewart in the case Rex v Sussex Justices,[4] ‘of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’. In simple terms, this means that the real danger of bias is its effect on public confidence in judicial discretion. Lord Hewart argued that justice must not only be done by giving a judgement and ensuring fair trial but it must also to be seen by the public to be done. Strong public confidence in the judgement is also an important factor in determining impartiality of the judicial system.
This, however, raises a difficulty: if the law focuses on the appearance of bias rather than actual proof of bias, how can it effectively assess impartiality?
CRITICAL EVALUATION
Apparent Bias
The facts of the case are clear. They demonstrate that the natural justice principle, nemo judex in causa sua (one cannot be a judge in his own cause) extends beyond just the situations of personal interest in the matter. This raises a broader question: should a person having a clear, direct relationship with a party involved, really be a decision-making authority, even after signing an affidavit? More importantly, how do we assess whether the person’s decision is actually unbiased?
The term “bias” is rather broad; it’s not always visible or deliberate, it may arise consciously or unconsciously. For instance, one’s unconsciousness can make them biased even without their knowing. Then the question here remains: as in the case, even though there is a connection between the respondent and Mrs. H, does it mean that there existed a possibility of bias in the judgement passed even if there exists no actual proof?
Bias is generally divided into various types, which can be grouped into two categories: Actual and Apparent.
Actual bias is where evidence of bias exists, such as through the actions of the decision-making authority such as a private meetup between a party involved in a case and a juror of the same case, it’s something that is obvious such as a direct relationship between the related party and the decision-making party. Apparent bias on the other hand, is where bias is not necessarily present; however, a well-informed individual can observe that there remains a possibility of bias.
For example, a judge may develop a strong personal opinion of a person’s personality, habits, etc. Due to continuous interactions with the person may develop a bias towards them, and if the same person is involved in a case before the hon’ble Court the judge’s bias may lead to a decision titling, either favourably or unfavourably, toward that person. This concern may exist even if a judge consciously attempts to approach the proceedings with an open mind, the issue is not whether the judge was impartial or not but rather if the circumstances objectively provide reason that question impartiality.
The significance of apparent bias lies in the idea that the law cannot assess what went through a judge’s mind while drawing upon a judgement. Hence requiring proof to establish actual bias creates a high threshold, as the conscious and unconscious workings may be hard to reach and even more difficult to provide evidence of the same. Apparent bias is a safeguard principle that has been developed to allow the law to intervene in cases where circumstances raise legitimate concerns about partial decision making.
This reflects on the principle that was established in the case of Rex v Sussex Justices[5], to make sure that justice is not only done but is manifestly seen to be done according to CJ Lord Hewart’s requirement. As previously argued, given that human judgement can be heavily influenced by their emotions, experiences and unconscious perspectives, bias becomes a natural phenomenon. The law cannot necessarily determine what went through a person’s head while making a decision; apparent bias is a legal principle that establishes safeguards to protect both the fairness of proceedings and public confidence in the administration of justice.
Is it Really the Solution?
Apparent bias covers almost all the gaps in the principle of actual bias, but can it truly be treated as a solution for all the areas? It lowers the threshold by a lot by not demanding actual proof of bias and basing the decision on the circumstances that raise the possibility of bias. However, if we examine the word “circumstances”. It appears to be a bit too broad, if every circumstance is capable of creating a suspicion of bias and consequently disqualifying a decision-maker, the principle wields too much power and would be prone to misuse, which could eventually jeopardize judicial independence. A personal tie, past engagement, or simply a common link with a party does inherently imply that the decision-maker cannot act without bias. Hence, the challenge is identifying which situations are significant enough to warrant a conclusion of apparent bias, which can be achieved by setting standards that define “circumstances” in more descriptive terms.
This difficulty was addressed in the case of Magill v Porter[6], where the House of Lords modified the ‘real danger test’ established in R v Gough by Lord Goff[7]. The court held that the relevant circumstances should be assessed from the perspective of a ‘fair minded and informed observer’, who would ask questions of whether there existed a reasonable possibility of bias. This development is significant because it prevents apparent bias from being established merely on the basis of subjective suspicion. The observer is required to be both fair minded and informed, meaning that the circumstances must be considered objectively and in their proper context. The test therefore attempts to strike a balance between two competing interests: protecting the integrity and public confidence of judicial proceedings while avoiding the unnecessary disqualification of decision-makers simply because some connection or circumstance could be interpreted as suspicious.
The advancements made in the approach in the Magill case[8], improve the test established in the Gough case[9] by providing an objective framework, but it does not completely eliminate the uncertainty inherent in apparent bias. The law still requires the Court to determine what a hypothetical fair-minded and informed observer would perceive from the circumstances. As a result, apparent bias cannot be considered a complete solution to the problem of impartiality; rather, it provides a practical legal mechanism for managing a problem that may never be capable of complete elimination.
CONCLUSION
In my view, justice truly can never exist without impartiality. Although complete impartiality may be difficult to achieve because judges, like all other human beings, possess their own experiences, perceptions, and unconscious influences, this does not make impartiality an impossible standard. Rather, it makes the safeguards surrounding it even more important. The purpose of principles such as nemo judex in causa Sua and the doctrine of apparent bias is not to prove every decision- maker is biased, but to ensure that circumstances capable of undermining public confidence are taken into strict consideration. As a result, justice may not require judges to be entirely free from every human influence, but it does require a system strong enough to recognize, prevent and challenge bias where it threatens the fairness and credibility of the judicial system.
REFERENCE(S):
Case laws
R v Gough [1993] AC 646
Magill v porters [2001] UKHL 67
Rex v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259
Secondary sources
Will Chen, ‘Apparent Bias’ (law prof) https://lawprof.co/definition/apparent-bias/, accessed 4 September, 2026
Umar Bashir, ‘Nemo Judex in Causa Sua: The Unwritten Law of Judicial Recusal’(legal eagle elite, 03 Jul 2026) articalsdetail.aspx, accessed 3 September, 2026
Law gratis, ‘ Nemo Judex in Causa Sua Principle’(law gratis, 2025) nemo-judex-in-causa-sua-principle, accessed 3 september,2026
Surbhi Jindal and Anunay Pandey, ‘ Audi Alteram Partem and Nemo Judex In Causa Sua: The Two Pillars of Natural Justice’ (manaputra articles, 2023) Audi-Alteram-Partem-and-Nemo-Judex-In-Causa-Sua-The-Two-Pillars-of-Natural-Justice, accessed 4 September, 2026
[1] R v. Gough [1993] AC 646
[2] Ibid
[3] Ibid
[4] Ex parte McCarthy [1924] 1 KB 256, 259
[5] Ibid
[6] Magill v Porter [2001] UKHL 67
[7] R v Gough (n1) 1
[8] Magill v porter(n6)
[9] R v Gough (n1) 1
