Law Report: Jury to say if words were racist in 1960s: Mitchell v Book Sales Ltd - Court of Appeal (Sir Donald Nicholls, Vice Chancellor, Lord Justice Hirst and Lord Justice Waite), 24 March 1994

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The question whether the use in group banter by a white rock musician of the terms 'nigger' and 'coon' in relation to a black fellow musician in England in the Sixties would have amounted to racial abuse in the cultural context and circumstances of the time, and whether a book was defamatory of the white musician to whom it attributed the words because it suggested he was a racist, was a question to be decided by the jury in a libel trial, regardless of whether they were all alive at the relevant time, since they constituted a microcosm of the natural and ordinary readers as a whole of the work in question.

The Court of Appeal dismissed an appeal by the plaintiff, John Mitchell, professionally known as Mitch Mitchell, against the verdict and judgment in favour of the defendants, Book Sales Ltd, on 4 November 1992, in a libel action tried by Mr Justice Drake and a jury.

The plaintiff was a white professional musician who was in the late Sixties the drummer of the Jimi Hendrix Experience, a successful rock group led by the black American guitarist Jimi Hendrix, who died in 1970 at the age of 27. The plaintiff sued the defendants over a book, published by them in 1990, entitled The life of Jimi Hendrix - Scuse me while I kiss the sky by David Henderson.

The book described Mitchell as being 'unable to hide a strange contempt for Jimi' and, after describing the various youth cultures of the time, noted that 'few English youths could escape the traditional hatred of blacks, even Noel Redding (the group's bass guitarist) and Mitch Mitchell'. Later it said: 'Noel and Mitch would sometimes use racial slurs when they talked. They would use 'nigger' and 'coon' in banter, but it must have had an effect on Jimi and further increased the conflict between them.'

The plaintiff claimed these words bore the natural and ordinary meaning that he was a racist bigot who hated blacks, held Hendrix in contempt because of his colour and frequently used racial slurs towards him.

The defendants denied the words bore that meaning or were defamatory. In his closing speech, Andrew Popplewell reminded the jury that the events described had taken place in the Sixties and said 'it was very common then for people to talk without any embarrassment about 'niggers'. People would use the expression 'nigger in the woodpile'. We now recognise . . . that is a wholly inappropriate way of talking.' He alluded to a book by Agatha Christie, then sold as Ten Little Niggers, whose title had since been changed.

The plaintiff claimed the trial had been vitiated by a material irregularity in that Mr Popplewell had wrongly placed before the jury matter which they were not entitled to consider.

James Price (Peter Carter-Ruck & Partners) for the plaintiff; George Carman QC and Andrew Popplewell (Davenport Lyons) for the defendants.

LORD JUSTICE HIRST said the key lay in a proper appreciation of the role of the jury as reflecting the ordinary readers of the book, who would cover a large age range, including many who had not been born in the Sixties as well as those were had been young or middle- aged at that time. The natural and ordinary meaning of the words complained of, and whether or not it was defamatory, had to be determined by seeking to establish a common standpoint for all of these groups.

It was for the jury to pool their general knowledge, drawn from all their various experiences, and whatever their age, background or individual expertise. At the end of the day the jurors' various views would coalesce in one combined and perhaps compromise view, which was in no way invalidated because some members had no personal knowledge of the relevant factors in the Sixties.

Finally, his Lordship was unable to accept the suggestion that Mr Popplewell in his speech had in effect been giving evidence, or that the jury would so have interpreted it. His references to Ten Little Niggers and the like were no more than illustration of the irrefutable point that attitudes on race had changed in the last 25 or 30 years.

Sir Donald Nicholls V-C and Lord Justice Waite agreed.