The right to trial by jury was a fundamental feature of both criminal and civil procedure under the common law.  While the right to trial by jury is seen, by most commentators, as a fundamental right in criminal cases, it has over the last century and a half been gradually eroded in civil cases.

In the eighteenth century there was a famous dispute as to whether juries in criminal defamation trials could give a “general verdict” – guilty or not guilty. A number of judges were of the view that the jury could give only a special verdict confined to the issue of whether the accused had published the words in the indictment. This conflict was resolved by Fox’s Libel Act 1792: “An Act to remove Doubts respecting the Functions of Juries in Cases of Libel”.

Although it is sometimes suggested that this Act meant that questions of meaning had to be determined by juries in civil libel cases this seems rest on a misunderstanding.  In 1792 all common law cases were tried with juries.  As a result, as Tugendhat J pointed out in a recent case

“It is unlikely that that Act had any impact on civil cases. In civil cases juries had always determined not only the fact of publication, but also the meaning of the matter published. See the speech which Lord Erskine made in Parliament in support of the Mr Fox’s Bill on 20 May 1791 (Speeches of Lord Erskine while at the Bar (J L High ed) Chicago Callaghan and Cockcroft 1870 p.443). Fox’s Libel Act 1792 was correcting an anomaly which Erskine said “destroys the liberty of the press”: but it was an anomaly in the criminal law and that Act was not concerned with civil claims for what we now call libel.” see Cook v Telegraph Media Group [2011] EWHC 763(QB) [90]

Until 1854 every litigant in the common law courts had a right to jury trial – there was no other means of disposing of an action.  By the Common Law Procedure Act 1854 (17 & 18 Vict. c.125) some minor changes were made so that the right to a jury was no longer available in actions for an account and provision was made for a trial without a jury if the parties consented.

The basic position was not changed by the the Supreme Court of Judicature Act 1873 although the right to trial by jury was removed in matters requiring “prolonged examination of documents or accounts or any scientific or local investigation” which could not conveniently be made with a jury.  In 1883 the Rules provided for right to trial by jury without an order in a number of cases: libel and slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage.  In all other cases it was provided that an order for trial by jury “shall be made” on the application of any party.   During the First World War the general right was to jury removed – apparently due to a shortage of jurors -although it was retained for the cases in which jury trial was available without order (see Juries Act 1918).

This was confirmed by the Administration of Justice Act 1920 – although fraud was added to the list of cases where the right was retained.  The removal of the general right to jury trial in civil cases was deprecated by many commentators, including one of the greatest judges of the twentieth century, Lord Atkin, who said in a 1922 case:

“Trial by jury except in the very limited classes of cases assigned to the Chancery Court, is an essential principle of our law. It has been the bulwark of liberty the shield of the poor from the oppression of the rich and powerful. Any one who knows the history of our law knows that many of the liberties of the subject were originally established and are maintained by the verdicts of juries in civil cases. Many will think that at the present time the danger of attack by powerful private organizations or by encroachments of the executive is not diminishing. It is not without importance that the right now taken away is expressly established as part of the American constitution” (Ford v Blurton (1922) 38 TLR 801, 805)

In the same case, Lord Justice Bankes commented that

“The standard of much that is valuable in the life of the community has been set by juries in civil cases. They have proved themselves in the past to be a great safe guard against many forms of wrongs and oppression. They are essentially a good tribunal to. decide cases in which there is hard swearing on either side, or a direct conflict of evidence on matters of fact, or in which the amount of the damage is at large and has to be assessed” (ibid, 804)

But despite these views the removal of the right to jury trial in the large majority of civil cases was confirmed by the Administration of Justice (Miscellaneous Provisions) Act 1933, section 6.  Save for the cases of fraud, libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage

“…  any action to be tried in that Division may, in the discretion of the court or a judge, be ordered to be tried either with or without a jury.”

In other words, outside the “protected causes of action” – which included libel and slander – jury trials were discretionary.  They became increasingly rare in other areas of law.  By 1965 only 2% of civil cases were tried by juries.  In that year, a five judge Court of Appeal, Lord Denning MR presiding, held that in personal injury cases, jury trials should not be ordered “save in exceptional circumstances” (Ward v James [1966] 1 QB  273).  Nevertheless, even in that case the Court of Appeal went on to say:

Let it not be supposed that this court is in any way opposed to trial by jury. It has been the bulwark of our liberties too long for any of us to seek to alter it. Whenever a man is on trial for serious crime, or when in a civil case a man’s honour or integrity is at stake, or when one or other party must be deliberately lying, then trial by jury has no equal” (ibid, 295).

In 1972, Lord Denning MR was a member of a Court of Appeal which, in Beesley v Williams ordered trial by jury in a solicitors’ negligence case on the ground that the case was one of great importance to both parties on the issue of honour, integrity and credibility, and that it was legitimate to take into account the strength of the respondent’s desire for trial by jury and  his feeling that lawyers were inclined to support one another.  This decision was overturned by the House of Lords which held that the fact that a case involved issues of credibility was not a ground for departing from the usual rule that cases apart from those in which a prima facie right to trial by jury was conferred by statute should be tried by judge alone ([1973] 1 WLR 1295).  Professional negligence cases are now, invariably, tried by judges sitting alone.

Section 69 of the Senior Courts Act 1981, which replaced s. 6 of the 1933 Act in respect of High Court trials, provides that trial

(1) Where, on the application of any party to an action to be tried in the Queen’s Bench Division, the court is satisfied that there is in issue—

(a) a charge of fraud against that party; or

(b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or

(c) any question or issue of a kind prescribed for the purposes of this paragraph,

the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.

(2) An application under subsection (1) must be made not later than such time before the trial as may be prescribed.

(3) An action to be tried in the Queen’s Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.

Section 69(3) makes it clear that the “normal” mode of trial is trial by judge alone and “discretionary jury trials” – ones in relation cases not listed in section 69(1) are, in modern times, unknown.   “Judge alone” trials are quicker and cheaper and result in a reasoned judgment which can be reviewed on appeal.

If, as contemplated by clause 11 of the Defamation Bill, “libel and slander” are removed from the section 69(1) list, there will be no more jury trials in defamation cases.  In this Inforrm debate we ask whether or not this is a result which should be welcomed or whether the bill should be amended to protect the right to jury trial.