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Judge as juror

Posted on 18 December 2014 by Carter-Ruck


This article was first published on Lexis®PSL Dispute Resolution on 9 December 2014. Click for a free trial of Lexis®PSL.

Dispute Resolution analysis: The High Court, sitting without a jury, recently ruled against former Conservative chief whip Andrew Mitchell in his libel claim against News Group Newspapers for publishing a story alleging that he had called PC Rowland a ‘pleb’. Nigel Tait, a partner at Carter-Ruck, along with associate Isabella Piasecka, considers the decision and the wider issues of judges acting as jurors.

Original news

Mitchell MP v News Group Newspapers Ltd; Rowland v Mitchell MP [2014] EWHC 3590 (QB), [2014] All ER (D) 12 (Nov)

The proceedings concerned two libel actions arising from a notorious incident at the gates of Downing Street on the evening of 19 September 2012. The Queen’s Bench Division held that evidence of experts in the field of phonetics and field of vision/trajectory analysis could be admitted by the parties. Further, evidence of alleged previous similar incidents involving the claimant in the first proceedings would be admitted, save for six allegations, as it was relevant and there would not be unfair prejudice.

What can we take from this decision?

The Defamation Act 2013 effectively abolished the right to jury trial, and it is now clear that the court will only exercise its residual discretion in favour of trial by jury in the rarest of defamation claims. Therefore, how a judge goes about determining where the truth lies in a defamation case becomes ever more important, as highlighted by the recent ruling of Mr Justice Mitting in the ‘Plebgate’ litigation.

The judge found that, on the balance of probabilities, he was satisfied that Mr Mitchell ‘did speak the words alleged or something so close to them as to amount to the same, including the politically toxic word “pleb”‘. Recognising inconsistencies in both Mr Mitchell’s and PC Rowland’s account of their infamous exchange at the Downing Street gates, the judge nevertheless came to a ‘firm conclusion’. In short, he preferred PC Rowland’s account and evidence to Mr Mitchell’s, but did not find Mr Mitchell dishonest.

Judges have, of course, long been arbiters of factual disputes. They are also well-versed in the factors that tend to the credibility of a witness. Lord Bingham, in an essay entitled ‘Judge as Juror’, described the exercise of resolving the factual issues as ‘frequently more difficult and exacting than the deciding of pure points of law’. He nevertheless identified the following five factors to assist the task:

  • the consistency of the witness’ evidence with what is agreed or clearly shown by other evidence
  • the internal consistency of the witness’ evidence
  • consistency with what the witness has said on other occasions
  • the credit of the witness in matters not germane to the litigation, and
  • the demeanour of the witness

The first three factors, according to Lord Bingham, are a ‘useful pointer’ to the truth. He placed less weight on the other two. As to the credit or honesty of a witness, what is interesting in the Mitchell case is the way in which the character evidence cut both ways. The ‘unchallenged’ evidence of multiple witnesses who gave favourable descriptions of Mr Mitchell’s character did not ultimately help him. Mr Justice Mitting reasoned:

‘If he did utter the words alleged, it would have been out of character for him to have done so. It does not follow that he cannot have spoken them.’

At the same time, the judge’s somewhat unflattering portrait of PC Rowland as a man lacking the ‘wit, imagination or inclination’ to invent a spur-of-the-moment story, as well as being ‘inflexible’ and ‘defensive’, did not fatally undermine his credibility.

Lord Bingham also cautioned against relying too much on probability–that is to say on the relative likelihood of two accounts:

‘In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one.’

In the Mitchell case, it was not so much a question of probability as of risibility. Mr Justice Mitting rejected as ‘absurd’ the idea of a conspiracy by the police to create a false account.

As to the other secondary factor, demeanour, it does sometimes win the day. In 1972, the Duchess of Argyll sued her former solicitor, Oscar Beuselinck, for failing to give relevant tax advice. She lost. The judge, when asked by Mr Beuselinck’s solicitor, Peter Carter-Ruck, some years later why he had preferred Mr Beuselinck’s account, explained that the Duchess had asked for a glass of water when giving evidence, and that, clearly, ‘Lies dry the mouth’.

Interviewed by Alex Heshmaty.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.


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