The Hamilton-Fayed farce makes a mockery of justice

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The law of libel has often been described as a lottery, but it is now in danger of descending into farce. Hamilton against Fayed may have been the best show in town - who will forget Christine Hamilton's tears or Mohamed Fayed's outrageous claims about Prince Philip? But this wasn't a five-week run in the West End; it was a trial in an English court of law before a judge and jury.

Doesn't our civil justice system deserve more respect? What is the public to think when one witness is ordered by the judge to leave the box after branding Mr Fayed the "biggest crook in town"? And doesn't it add to the impression of theatre when barristers thank their witnesses for a "memorable" four and a half days of cross-examination?

Throughout all this, the jury stuck to its task admirably, and eventually returned a verdict supported by the run of the evidence. But Private Eye's editor Ian Hislop encapsulated most people's thoughts on the case when he said it was the first libel trial in which he hoped both men would lose. It is this kind of indifference to the legal process, generated by a sense of courtroom pantomime, that undermines the public's confidence in the jury system.

No wonder that two-thirds of those called up for jury service find a way of getting out of it. According to a Home Office report last month, it doesn't take much to come up with a plausible excuse: holidays, transport difficulties and studying for exams were all cited.

People now treat jury service with the same disdain as voting in local elections. If jury service were not compulsory, the Lord Chancellor would end up having to pay people large sums of money to perform their civic duty.

Cases such as Hamilton-Fayed add to the impression that jury service is not a serious business. If Mohamed Fayed and Neil Hamilton want to spend millions of pounds of their own money - or in Mr Hamilton's case other people's money - then that must be their right. But these kinds of case not only bring libel trials into disrepute; they also threaten the whole principle of trial by jury. When the good citizen will try almost anything to get out of jury service, the time has come to rethink the role of the jury in the civil justice system.

The right to be tried by "twelve good men (and women) and true" is the most important principle of the criminal justice system. For it to be tarnished by the amateur dramatics of a civil libel trial is not good for English justice. A person's reputation is a precious thing, but it should not be judged in the same way as an accusation which could end in the loss of liberty. Indeed, in many other respects libel trials are very different from criminal trials. Someone bringing a defamation action need only prove on the balance of probabilities that their reputation has been lowered in the eyes of "right-minded" people. In a criminal court, the test is "beyond reasonable doubt". The rules governing the use of evidence adduced to persuade the jury that a character has been blackened are much more relaxed than those employed in a criminal trial.

Juries sitting in civil trials are largely a throwback to the days when the right to be heard by your peers was universal to all allegations which touched upon the character of the individual. Since the 1984 Supreme Court Act, juries in civil cases are restricted to claims of defamation, false imprisonment, malicious prosecution and common law fraud (although judges also have a limited discretion to order a jury trial in other cases where the facts demand it).

With a Government consultation paper on defamation being published in January, this is a good time to re-examine the need for juries in libel trials.

Unsurprisingly, libel lawyers are opposed to such a move. After all, a good barrister knows that, with a jury, even the weakest of cases has a chance of winning. And a defamation trial with a jury is likely to run much longer than one heard solely by a judge. More days in court mean more fees in lawyers' pockets.

The Government has already given limited consideration to these aspects of the increased expense and inconsistency of jury verdicts in libel trials. And ever since Elton John's pounds 350,000 libel win against the Sun was reduced to pounds 75,000, the courts have acknowledged that juries need to be restrained when it comes to setting damages. There are already serious proposals on the table to replace juries in highly technical fraud cases with a panel of experts. Libel trials can also be very complex, and jurors who do not follow the finer nuances of the evidence can easily leap to the wrong conclusion.

Changes to the libel laws, first mooted by the former Conservative government, are due to come into force next year (although their introduction has been postponed from its original January date). They will introduce judge- only libel and slander trials for cases where the claim is less than pounds 10,000. Newspapers will also be given the opportunity to make an "offer to make amends" in a case which they do not wish to defend, so that the judge, sitting alone, can set the damages payout. But these changes will only tinker with the way defamation trials are conducted. As one leading libel lawyer put it: "Why limit your damages to pounds 10,000 when a jury, on a good day with a good wind behind it, can make your fortune?"

The Government's proposals to restrict the automatic election of trial by jury for many minor criminal offences shows that the right to jury trial is not sacrosanct. If this right can be breached in criminal cases, there must be be an argument for it to be breached in libel trials.

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