The Defamation Bill which is presently before Parliament provides for the abolition of the right to trial by jury in libel cases. Clause 11 of the Bill provides for the removal of the right to jury trial in such cases – a right which has been enshrined in law for nearly 100 years (see our post on the historical background). This clause was approved by the Defamation Bill Committee last week.

The provision was considered by the Joint Committee on the Defamation Bill in its report of 12 October 2011.  The  Joint Committee considered the arguments for and against jury trial and concluded

on balance, we consider that any perceived benefits of a judgment by a jury do not outweigh the enormous costs in terms of time and money that this option entails and the precluding effect these can have. Also, reasoned judgments often confer significant benefit in terms of transparency and fairness. In our view, jury trials are not only more expensive in themselves; their availability can serve to work against early settlement. The reversal of the presumption in favour of jury trials is essential to many of the recommendations we make, particularly those relating to early resolution. We conclude that the presumption in favour of jury trials works against our core principles of reducing costs by promoting early resolution and, to a lesser degree, of improving clarity. We support the draft Bill’s reversal of this presumption, so that the vast majority of cases will be heard by a judge” [24].

However, the Joint Committee did not share what it described as the “minority view” that jury trials should be abolished altogether in defamation cases.  It accepted “that there may be exceptional circumstances in which trial by jury is in the public interest” and recommended that “the circumstances in which a judge may order a trial by jury should be set out in the Bill, with judicial discretion to be applied on a case-by-case basis”.

It recommended that these

“should generally be limited to cases involving senior figures in public life and ordinarily only where their public credibility is at stake” [25]

This recommendation was rejected by the Government in its response on 29 February 2012.   It said that

“a clear majority of responses to our consultation on this point, including from members of the senior judiciary, took the view that guidelines would not be necessary. Concerns were expressed that including guidelines in the Bill could be too prescriptive and could generate disputes” [62]

It was suggested that guidelines “could inadvertently have the effect of leading to more cases being deemed suitable for a jury than at present”.   As a result, it concluded that it would be preferable to allow the courts to continue to exercise this discretion “without specific guidance on the face of the Bill“.

There is, however, a strong argument that the Joint Committee was right.  The Government appears to have misunderstood the case law on “discretionary jury trials”.  The effect of the “presumption” in favour of trial by judge alone in section 69(3) of the Senior Courts Act 1981 is that “discretionary” jury trials are almost never ordered.  This is starkly illustrated by the recent decision in favour of trial by judge alone in the case of Lewis v Commissioner of Police ([2012] EWHC1391 (QB)).  Considerations of trial convenience and the advantages of a reasoned judgment will always “trump” arguments in favour of discretionary jury trial.

If Parliament wishes to give effect to the views of the Joint Committee it should indeed include “specific guidelines” as to the circumstances in which trial by jury can be ordered in defamation cases.  Without such guidelines, the effect of clause 11 will be abolish libel jury trials.