Lord Goff Of Chieveley

[1] 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.

[2] 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.

[3] 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.

[4] 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.

[5] 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 doo