This article is taken from the February 2025 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.
In January this year, a Florida jury found against CNN in an action for libel brought by a security contractor, whom the channel had accused of misconduct during the American evacuation from Afghanistan.
The jury initially awarded $5m in damages; the network then swiftly settled the case before the jury was due to decide on punitive damages, which could have bankrupted the company.
Nothing of the sort could happen in England today. Not only are damages for defamation on a far more modest scale here (the biggest libel verdict, secured by Lord Aldington against Count Nikolai Tolstoy, was a mere £1.5m, whilst punitive damages are normally deprecated), but defamation actions are now exclusively tried by judges.
The most recent libel trial by jury happened in 2012, when Frankie Boyle secured around £50,000 against the Daily Mirror, and unless Parliament changes the law it is unlikely there will ever be another libel trial by jury in the High Court.
The most recent libel trial by jury was in 2012, when Frankie Boyle secured £50,000
For centuries, there existed in English law a presumption that defamation cases ought to be heard by jury, both to safeguard the liberty of the press against placeman judges and because, since defamation by definition involves harm to one’s reputation in the eyes of the community, it seemed reasonable that the community, represented by twelve jurymen, should decide whether harm has in fact been suffered by the plaintiff and, if so, what was the extent of the harm in financial terms.
In cases of criminal libel, the right to a trial by jury was secured by Charles James Fox’s Act of 1792, the only major legislative achievement of his career, which the Marxist historian E.P. Thompson described as his “greatest service to the common people” in the face of the oppressive measures of Mr Pitt’s ministry.
In civil actions for defamation, the right to a jury trial was one of the few survivors of the general abolition of civil juries which was a result of the First World War.
The right was so entrenched that in 1973, Lord Denning, the Master of the Rolls, admittedly a sentimentalist in such matters, described it as a “constitutional right … of the highest importance”.
But this “constitutional right” was casually abolished by section 11 of the Defamation Act 2013, the sweeping Cameron-era measure which remade England’s defamation law. Henceforth, all defamation actions “shall be tried without a jury unless the court in its discretion orders it to be tried with a jury”.
Since then, courts have never exercised their discretion to order a trial by jury. Media judges have never liked libel juries anyway; and in 2014 Mr Justice Warby held in Yeo v Times Newspapers Ltd that courts should not use their discretion to order a jury trial unless there was concern that the judge might show “involuntary bias” toward a party because of their rank or status.
As judges tend to be confident about the quality of their moral fibre, it is unlikely they will ever exercise their discretion under the present legal regime.
Warby J gave two main reasons for preferring trial by judge to trial by jury for defamation actions. Firstly, they are less expensive — the judge can pre-read the evidence and determine the meaning of a publication at an early stage, neither of which is possible with a jury trial. Secondly, judges give reasoned verdicts, whereas juries can only give a general verdict.
The keen observer will have noticed that both rationales apply equally to any sort of trial by jury, whether for defamation or in criminal cases, which does not exactly dispel the fear that the abolition of libel juries is part of a longer-term attack on juries in general.
Nor is it clear that libel actions have become any less expensive since the abolition of the jury: if judges are to make such sweeping claims, they should back it up with evidence.
It is true that judges can produce detailed reasons for their decision which juries cannot. But it is not obvious that long, technical rulings in which a judge, who is necessarily sheltered from ordinary society by virtue of social status and employment, has to determine what the average person (or, in the term of art, the “hypothetical ordinary reasonable reader”) would understand an impugned remark to mean is preferable to having twelve ordinary people determine its meaning for themselves.
The libel jury is unlikely to return anytime soon, particularly when the justice system cannot even afford to keep courtrooms open for criminal trials, and when judges are attempting to discourage the trial of “small” civil claims in court on grounds of cost and administrative efficiency.
Yet another legal institution, which former generations considered vital to the safety of the constitution, has been consigned to history.
