10 Jud. Rev. 78 (2005)
The Use of the Bystander Test for Apparent Bias

handle is hein.journals/judire10 and id is 78 raw text is: [2005] JR
The Use of the Bystander Test for
Apparent Bias
Saima Hanif
4-5 Gray's Inn Square
1. The fair-minded and informed observer has become an essential yardstick in
allegations of apparent bias. Underlying the whole concept is the need to determine the
perspective from which bias should be viewed, and there has been a marked shift in
policy to avoid a situation where the courts are seen to be imposing their views as a
standard of what is right and fair.
2. This article looks at the origins of the concept, the incremental developments, and the
policy underlying the standard. It remains to be seen however whether the current test
as confirmed in Porter v Magill [2001] UKHL 67 [2002] 2 AC 357 is substantively differ-
ent from the original test as advocated in R v Gough [1993] AC 643.
The Gough test
3. The importance of the perception of the reasonable observer in matters involving
allegations of bias has been a long-running theme in public law. Indeed, the very
importance of that perception is inherent in the well-known maxim that justice must
not only be done, but be seen to be done. However, it was in the landmark case of
R v Gough that the House of Lords considered, and rejected, a test for apparent bias
based on the perspective of the reasonable man.
4. Lord Goff, delivering the leading judgment on behalf of the court, said that it was not
necessary to formulate the test in terms of the reasonable man, both because the court
personified the reasonable man and because the court had to ascertain the relevant
circumstances from the evidence which might not be available to the ordinary
observer. Lord Goff preferred to formulate the test as follows:
the Court should ask itself whether, having regard to those circumstances, there was a real
danger of bias...
5. The House of Lords rejected the need to take account of the public perception of an
incident which raised an issue of bias except in the case of a pecuniary interest. Behind
this reasoning was the assumption that public confidence in the administration of
justice would be maintained because the public would accept the conclusions of the
6. Gough therefore made two key changes: it not only rejected the concept of a reasonable
observer, but also formulated the test for bias as a real danger test.
Gough - the wilderness years
7. However, that was not by any means the last word on the matter. The rejection of the
reasonable observer test was the subject of much debate and criticism. In R v Inner West
London Coroner ex p. Dallaglio [1994] 4 All ER 139 Sir Thomas Bingham MR went so far

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