The Power of a Jury

The fundamental importance of actions against the Police and other State authorities in maintaining our civil liberties and the good health of our Democratic institutions is strikingly demonstrated by the fact that the area of law in which I specialise, is one of the few remaining areas of civil law in which Claimants generally have a right to elect for Trial before Judge and Jury, rather than by Judge alone.

Whilst even the most serious accident claims (valued at a million pounds or more) are tried without a Jury, the right to a Jury Trial in a limited number of other civil actions is preserved in Section 66 of the County Courts Act 1984 which provides as follows –

(2)In all other proceedings in the county court the trial shall be without a jury unless the court otherwise orders on an application made in that behalf by any party to the proceedings in such manner and within such time before the trial as may be prescribed.

(3)Where, on any such application, the court is satisfied that there is in issue—

(a)a charge of fraud against the party making the application; or

(b)a claim in respect of … malicious prosecution or false imprisonment; or

(c)any question or issue of a kind prescribed for the purposes of this paragraph,

the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.

Thus, very many claims against the Police (or other state bodies) which involve false imprisonment (i.e. wrongful arrest) or malicious prosecution fall within this exception to the general rule pertaining to civil Trials and entitle Claimants to elect for Trial by Jury.

Whilst such a Claimant is certainly not obliged to choose Trial by Judge and Jury – they may well decide to proceed to Trial before a Judge alone for a variety of reasons, in which case they need do nothing – the importance of a Trial by Jury in cases involving allegations of the abuse of power by State agents against private citizens is well established.  The Police, after all, police our streets – so perhaps it is appropriate to have issues of fact decided by those who spend more time on those streets than do our often “ivory-towered” judiciary.

In Ward v Chief Constable of West Midlands Police Hobhouse LJ observed:

‘Trials such as this are conducted with the assistance of the jury because of the nature of the allegations made and the issues raised and the desirability in the interests of justice not only being done but being seen to be done of having a jury to decide disputed issues of facts’.

In Darragh v Chief Constable of Thames Valley Police Sir Patrick Russell stated:

‘There is no doubt whatever that some of the issues in this case would be best tried by a jury, for example, allegations of police brutality and, generally, of police misconduct. Those issues are eminently suitable for the decision of a jury and are frequently within the province of the jury, not only in a civil court but more particularly in the criminal courts’.

Most authoritatively of all, Woolf MR said the following in the leading case on damages in civil claims against the police, Thompson and Hsu v Commissioner of Police for the Metropolis [1998]:

‘There are arguments which can be advanced to justify the retention of the use of juries in this area of litigation. Very difficult issues of credibility will often have to be resolved. It is desirable for these to be determined by the plaintiff’s fellow citizens rather than judges, who like the police are concerned in maintaining law and order. Similarly the jury because of their composition, are a body which is peculiarly suited to make the final assessment of damages, including deciding whether aggravated or exemplary damages are called for in this area of litigation and for the jury to have these important tasks is an important safeguard of the liberty of the individual citizen’.

However, the fact that a Trial by Jury is a fundamental constitutional right to Claimants in such cases, does not necessarily prevent Defendant Chief Constables from seeking to restrict that right. Indeed, twice this year I have had to secure that right for my clients at Court hearings in two separate claims against the police in which our application for Trial by Jury was either actively contested by the Police, or obstructively not consented to.

In the first case, which involved a claim brought by a young black teenager against the Metropolitan Police in regards to an unlawful stop and search, the police lawyers sought to play what was – in my opinion – a cynical game of semantics in seeking to argue that the Claimant was not entitled to a Jury Trial because his claim in false imprisonment was not “in issue” because liability had been admitted.  This was a case in which the police had accepted that the stop/search had been carried out in an unlawful manner and therefore the Claimant was entitled to compensation – but the amount of that compensation was very much in dispute with the parties contending for vastly different sums and the police denying several of my client’s allegations regarding such serious matters as the use of force, the extent of injury and the attitude and behaviour of the officers involved – including whether their actions were motivated by racial prejudice.

The Metropolitan Police Service were nevertheless seeking to argue that because they had conceded liability the claim was no longer ‘in issue’ – an entirely incorrect argument in my opinion, given the remaining fundamental disputes about the factual circumstances in which that false imprisonment occurred (as outlined above) which would have a real and significant bearing on the level and type of damages to which my client was entitled.

In the second case, which involved a claim brought against Avon & Somerset Constabulary, the Police failed to recognise and agree my client’s right to jury trial by consenting to what should have been a straightforward application (there being no dispute that there was in issue a claim for false imprisonment and malicious prosecution) and instead required us to attend a hearing and persuade a judge that Section 66 of the County Courts Act did apply. It was quite clear that the Police hoped the judge would rule otherwise; they adopted a position of passive aggressive ‘neutrality’ rather than doing the right thing and agreeing the application to save everybody time and costs.  

Ultimately, the (failed) attempts by two different Police Forces to dispute/ delay the citizens’ right to Jury Trial in these matters, and thereby allow the Chief Constable the comfort of not being scrutinized by a Jury of the Claimant’s peers, speaks volumes about the importance and need for maintenance of this right and tradition.

Democracy, as they say, dies in darkness – whereas juries shine a light: the light of public scrutiny upon Police misconduct.