Inforrm Debate: Libel juries, is there a middle way? – Hugh Tomlinson QC

The Government proposes to abolish the right to trial by jury in libel cases. Opponents seek the retention of the right in the established form of a “presumption” in favour of libel trials in jury cases unless the case involves “prolonged examination of documents”.  Is it possible to find a middle way?  It is important to consider the arguments on both sides to see whether there is any possible common ground. 

The supporters of the right to jury trial point out that juries bring a “lay element” to claims of damage to reputation – assessing both whether the words are defamatory and the proper sum of damages to award.

A number of supporting arguments are advanced:

• The assessment of credibility is not a science and many believe that the collective view of twelve lay people is a better guide to the approach of the “case hardened” judge.
• Judges may have an unconscious tendency to favour witnesses of a similar background and outlook to themselves, “ordinary” parties and witnesses may, therefore, suffer in comparison.
• Judges are part of the establishment, the argument goes, and when the establishment is being challenged then a lay decision maker is vital.
• There are distinct advantages to having to refine a case so that it can be clearly presented to and understood by 12 non-lawyers.

To these arguments there is added the point that juries have always determined these issues in libel cases and that, historically, their verdicts have commanded respect over the centuries.  The right to libel jury trial has been has been enshrined in law for nearly 100 years (see our post on the historical background) – and “it is not broke” so does not need fixing.

But the “abolitionists” have a number of powerful arguments  against the continuation of the right to jury trial.  They can perhaps be summarised under three heads:

• “Case management”   –  Trial by jury takes longer (the usual “rule of thumb” is that it takes twice as long as trial by judge alone) and is therefore more expensive.  Furthermore, if there is a right to jury trial then preliminary issues, such as meaning, cannot be the subject of early determination.
• “Predictability” –  Juries can be capricious, swayed by sentiment rather than analysis of the evidence.  For example, it is argued that juries tend to favour “celebrities” over what are seen as large and powerful newspapers.
• “Lack of transparency”:  A jury does not give a reasoned judgment – but rather a general verdict (“for the claimant” or “for the defendant”) – so the vindication for the claimant (or confirmation that the defendant was right to publish) is not clearly established.  A jury verdict is difficult to appeal so the issues cannot fully be examined by the higher courts.

There is considerable force in the arguments on both sides.   Although the arguments from “case managment” are particularly powerful it is noteworthy that, in the field of criminal law, they not regarded as decisive.  There is an almost universal consensus that juries are the most appropriate “triers of fact” in criminal cases.

Could a “middle way” be devised to take the strength of both parties’ arguments.   One important point made by opponents of jury trial could be met by providing that, in all libel cases, any preliminary issue can be determined by a judge alone – whether or not a full trial would be suitable for jury trial.

Furthermore, the “strong” right to jury trial which is presently enshrined in statute could be removed so that libel cases would only be tried by juries if there were factors which favoured this mode of trial.  Such factors could include, for example

• Whether the defendant is a state body or elected official;
• Whether there is a defence of justification which depends, substantially, on the assessment of the credibility of witnesses;
• Whether the allegations made were of serious criminal misconduct.

An interesting attempt to provide such a “middle way” between the present right to jury trial and the straight abolition in clause 11 can be found in clause 15 of Lord Lester’s Defamation Bill which is headed “Determining an application for trial by a jury” and provides as follows:

“(1) If the court is satisfied that it is in the interests of justice to do so, it may order trial by jury of such matter or matters arising in an action for defamation as are specified in the order.

(2)  An order under subsection (1) may be made on an application by any party to the action and the court determining the application must have regard to all the circumstances of the case.

(3)  Those circumstances may include (among other things)—

(a) whether there is a public interest in the subject matter of the action or anything arising in connection with it;

(b) the identity of any of the parties to the action;

(c) any office or other position held by any party to the action;

(d) whether it is in the interests of justice that the verdict of a jury or a reasoned judgment be obtained on any matter arising in the action;

(e) the extent to which early resolution of any matter (for example, as to the
meaning of the words complained of) is likely to facilitate settlement of the action, improve active case management or assist in achieving a just and equitable outcome; and

(f) whether the trial is likely to require the prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.

(4)  An application must be made in accordance with such procedure as may be prescribed by rules of court.

To this would have to be added a requirement that “mode of trial” in libel cases would be determined in accordance with this section (rather than section 69 of the Senior Courts Act 1981 – which, in substance, means that trial will always be by judge alone).

A provision to this effect would make it clear to judges that special factors applied to the exercise of the discretion to order jury trials in libel cases and would mean that in appropriate cases – perhaps, for example, in the three categories listed above, libel jury trials might still be appropriate.  It might provide a “middle way” between retention of the present regime and abolition.

This is the seventh post in the Inforrm Debate on trial by jury in libel cases.  The other posts are:

Inforrm Debate: Should libel jury trials be abolished? – Introduction

Inforrm Debate: Libel Jury Trials – Some Historical Background

Inforrm Debate: Jury Trial, does clause 11 reflect the views of the Joint Committee?

Inforrm Debate: Luke Cooper’s case shows damage of abolishing trial by jury in libel cases – Louis Charalambous

Inforrm Debate: Vindication for the Jury – Lucy Moorman

Inforrm Debate: Jury trial in libel actions: the plaything of civil liberty purists! – Alastair Brett

Inforrm Debate: On Jury Trials in Civil Cases – A view from the United States – Jack W. London