Case No: A2/2012/0463
Neutral Citation Number: [2012] EWCA Civ 956
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION MR JUSTICE
TUGENDHAT HQ10D01015
Royal Courts of Justice
Strand, London. WC2A 2LL
Date: 19/07/2012
Before:
LORD JUSTICE MAURICE KAY
LORD JUSTICE HOOPER
and
MR JUSTICE HENDERSON
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Between:
AMILTON NICOLAS BENTO	Respondent
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THE CHIEF CONSTABLE OF BEDFORDSHIRE POLICE Appellant
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(Transcript of the Handed Down Judgment of
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MR. R. RAMPTON QC and MS. C. EVANS (instructed by Berrymans Lace Mawer LLP)
for the Appellant.
MR. H. TOMLINSON QC and MS. S. MANSOORI (instructed by Hughmans Solicitors)
for the Respondent.
Hearing date: 3rd April 2012.
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Judgment
1.	At the conclusion of this interlocutory appeal, we announced our decision that the appeal failed. The appellant Chief Constable challenges the decision of Tugendhat J declining to order a jury trial in libel proceedings brought by the respondent against the appellant in the following circumstances.
2.	On 24th January 2006 the body of Kamila Garsztka was found in Priory Lake, Bedford. The body had been there since the evening of 13th December 2005. The respondent, her boyfriend, a man of previous good character, was arrested and later charged with her murder. Following a trial in the Crown Court at Luton before Calvert-Smith J and a jury, he was convicted on 25th July 2007 by a unanimous verdict. An expert called by the prosecution expressed his opinion that in CCTV footage from the evening of 13 th December 2005 Kamila can be seen carrying her favourite handbag. No contradictory expert evidence was adduced by the defence at trial. If she had been carrying the handbag that provided significant evidence against the respondent because the handbag was found in his home.
3.	The Court of Appeal Criminal Division allowed fresh evidence to be adduced contradicting the opinion of the expert and on 26th February 2009, in the light of the fresh evidence, the Court quashed the conviction and ordered a retrial. The Court presided over by the Lord Chief Justice, Lord Judge, said that there was ample other evidence for the case to proceed to trial and for the matter to be left for a jury to consider.
4.	In July 2009 the Crown Prosecution Service decided not to proceed with a retrial. At a brief hearing in the Crown Court the prosecution offered no evidence and a verdict of not guilty was recorded.
5.	On 9 July 2009 the Bedfordshire Police issued a press release which the respondent alleges is defamatory of him. He says that the natural and ordinary meaning of the words used in the press release meant and were understood to mean that he had killed the deceased. The appellant Chief Constable resists the claim on the bases of justification and qualified privilege.
6.	On 7 February 2011 Master Fontaine ordered, by consent, that the trial would be by judge and jury (subject to the right of either party to apply pursuant to s69(l) of the Senior Courts Act 1981 for trial by judge alone). On 18 October 2011 the respondent issued an application notice to vary the mode of trial to trial by judge alone. That application was made solely on the ground that the trial would involve a prolonged examination of documents that could not conveniently be made with a jury, pursuant to section 69(1) of the Senior Courts Act 1981.
7.	On 31 October 2011, at the hearing of that application (which was opposed), Mr Justice Tugendhat indicated that the case was suitable for jury trial and the mode of trial application was not pursued, although either party had liberty to apply.
8.	At a case management conference on 6 February 2012 the respondent renewed the mode of trial application, but this time on the ground that the appellant’s right to a jury trial under section 69(1) had been lost because the appellant had not applied for that mode of trial within 28 days of service of the Defence (pursuant to CPR 26.11).
9.	The issue for Tugendhat J was whether, despite the fact that the right to trial by jury had been lost, he should nevertheless exercise his discretion under section 69(3) of the Senior Courts Act 1981 to order trial by judge and jury.
10.	Section 69 (l)-(3) now reads:
“(1) Where, on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue-
(a)	a charge of fraud against that party; or
(b)	a claim in respect of libel, slander, 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.
(2)	An application under subsection (1) must be made not later than such time before the trial as may be prescribed.
(3)	An action to be tried in the Queen's Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.”
11.	It follows from sub-section (3) that the action had to be tried by a judge without a jury unless Tugendhat J in his “discretion” ordered it to be tried with a jury. In the words of Tugendhat J: “When that discretion falls to be exercised, there is a presumption in favour of trial by Judge alone.”
12.	To succeed in this appeal, the appellant must show that no reasonable judge could, in the circumstances, have decided not to order jury trial.
13.	Tugendhat J referred both to the factual and legal complexity of the case:
“7. The factual complexity arises because there are, as amongst the most important issues in this case, issues as to theinterpretation of CCTV images of the deceased as she walked towards the spot at which she entered the water before dying. The question is whether the images, which as usual are of a quality which is much less good than could be desired, show her carrying a bag over her shoulder or not.

8. The contention of the claimant is that she had left the bag behind in his flat where it was ultimately found and she was not carrying it with her to the place where she died. The contention that will be advanced for the Chief Constable is that the CCTV images show or probably show that she was carrying the bag when photographed. If she was, then since the bag was not found with the clothes left on the side of the water, still less found with her body in the water, there has to be an explanation as to how the bag got back to the claimant’s flat and the claimant is unable to produce an explanation. That is an issue that was before the jury in Luton Crown Court when the claimant was convicted. But the unsatisfactory nature of the evidence which was before the Crown Court was what led the Court of Appeal to quash the conviction and order a retrial. The upshot is that the evidence that will be put before the Court in this libel action will be different and will have been assembled against the background that gave rise to the quashing of the conviction.
9. The other matters of complexity arise from what is said to be inconsistencies in the witness statements of the claimant and other witnesses about his movements in Bedford that night. They go to the question of whether he had an alibi, or not, or an opportunity, or not, to cause the death of this unfortunate young woman.”
14.	The judge continued:
“10. It goes almost without saying that it is quite possible to accept the submission that those are complicated issues but still take the view that they are ones that can properly and conveniently be tried with a jury. Indeed, had the Crown Prosecution Service decided to present evidence against the claimant, having taken the view that they could properly do so, exactly those matters would have been the subject of the retrial.”
15.	The judge then referred to the complexities which can arise when the issue of qualified privilege arises in a jury trial.
16.	The judge then went on to say:
15. In the end, a jury's decision is a decision in favour of a claimant or in favour of a defendant and if in favour of a claimant, accompanied by an award of damages. That can have unfortunate consequences for a claimant where there are defences of both qualified privilege and justification. The outcome of the claimant's action will generally be reported in terms of the verdict of the jury. He will either have won or have lost. Of course, if from the questions asked and answered by the jury it is clear that the claimant has lost on qualified privilege, logically he should be no worse off than if he had not brought the action. But the reality is not always like that. A claimant who has lost on an issue of qualified privilege is commonly understood to have lost because the words complained of were true. That is a mistake but that is how a verdict of a jury may be reported or interpreted.”
17.	The judge then explained what he saw as the advantages of a reasoned judgment:
“16. The advantage of a judgment giving reasons will be that a Judge will have to set out his or her reasons in full on all the issues in the case. If a Judge in the present case trying it alone were to come to the view that the defence of justification had not been made out but that the defence of qualified privilege had been, that could be fully and clearly laid before the public in a way which would not be possible if the trial was with a jury.”
18.	A little later the judge said:
“17. ... If the application for trial by Judge and jury were made by the claimant, it seems to me it would be a stronger case than where it is made by the defendant. The rationale of trial by jury is that the jury stands between the subject and the state. The jury is an institution which primarily is for the protection of the individual against the state.”
19.	The judge concluded:
“19. Overall, with considerable hesitation, I have come to the view that the presumption in favour of trial by Judge alone is not displaced. The advantages of a reasoned judgment in this complicated case, in particular complicated by the issues of law, is, it seems to me, a factor which outweighs all the others.”
20.	The appellant submits:
“In this case the Judge’s decision to vary the mode of trial to judge alone was, it is submitted, wrong in principle and/or based on an approach that gave too much weight to the advantages of a reasoned judgment and not enough to the many important factors in favour of jury trial. The Judge also overstated the extent to which the issues of law are complicated and the extent to which that question was relevant to the decision as to mode of trial. ...”
21.	The central thrust of the appellant’s arguments is put by Mr Rampton QC for the Chief Constable in this way:
“the nature of the issues in the justification defence and the status of the Defendant as a public authority argue overwhelmingly in favour of trial by a jury not a judge sitting alone.”
22.	He submits that the reputation of a public authority is of great public interest, and “it is entitled therefore, in defence of a serious criminal charge laid publicly by it at the claimant’s door, to seek to prove its truth to the satisfaction of a jury”. Mr Rampton noted that the trial was likely to receive extensive publicity, especially in the Bedfordshire area. He submits that there was a need, as a matter of justice for both parties, to have a (re)trial by citizens, not a judge, of the question whether the respondent killed his girlfriend.
23.	The respondent submits, in answer to the submission that a public authority should be entitled to a jury trial in these circumstances, that the positions of an individual and an authority are very different. Mr Tomlinson QC submits that, as was explained in Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB) (to which Tugendhat J referred in his judgment), the reason why claims against public authorities are recognised as especially suited for jury trial has been said to be the “involuntary bias towards those of their own rank and dignity” by judges (Cook [108]). Mr Tomlinson QC submits that this plainly does not apply in a case where the claimant is not a person who “holds authority or power in the state”. This is not a case which involves a “prominent figure in public life” which is one of the factors in favour of a trial by jury. Mr Tomlinson QC submitted:
“The Claimant is a foreign national whose English is imperfect and who has confidence in a judge to reach a fair and impartial decision in this dispute between him and an English public authority. The Claimant wishes to see the evidence against him analysed by a judge and the results of that analysis set out in a public judgment rather the result being in an unanalysed jury verdict. The right of an individual citizen accused of the most serious crime to have a reasoned judgment is plainly an extremely powerful factor in favour of judge alone trial (as the Judge rightly held).”
24.	Mr Tomlinson QC further submits:
“The suggestion that the public might have less confidence in a verdict of a judge sitting alone, set out in a reasoned judgment, does not bear serious examination. There are powerful arguments that the opposite is true. A jury verdict will be “for the Claimant” or “for the Defendant”. A reasoned judgment will enable the parties (and the public) to know the meaning which the trial judge has determined and his assessment of the evidence.”
25.	Mr Tomlinson QC submits that there is no basis for disturbing the judge’s exercise of his discretion in this case and no grounds for displacing the statutory presumption in favour of trial by judge alone.
26.	In my view the appellant Chief Constable has not shown that the judge reached a conclusion which no reasonable judge could reach. He was entitled to give weight to the factors to which he referred, and in particular the advantages of a reasoned judgment. He was entitled to give more weight to those factors than to the factors relied upon by the appellant, particularly to the advantages to the Chief Constable, as a public authority, of having the issue between whether the respondent killed his girlfriend tried by a jury. The appeal must therefore, in my view, be dismissed.
Mr Justice Henderson
27.	I agree
Lord Justice Maurice Kay
28.	I also agree