Tasks of Jury and Judge in Defamation Trial
In an action for defamation it is the jury’s task to decide whether the words were published and whether they are true. It is for the judge to decide whether the words are libellous. Lord Mansfield said: ‘The liberty of the press consists in printing without any previous licence, subject to the consequence of law.’
Lord Mansfield spoke against the practice of jury nullification, saying ‘So the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.
To be free is to live under a government by law . . Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.
. . In opposition to this, what is contended for? – That the law shall be, in every particular cause, what any twelve men, who shall happen to be the jury, shall be inclined to think; liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable.
(1784) 21 St Tr 847, (1784) 4 Doug KB 73, (1784) 99 ER 774, (1784) 3 Term Rep 428n
England and Wales
Applied – Whitehouse v Lemon; Whitehouse v Gay News Ltd HL 21-Feb-1979
The appellants challenged their conviction for blasphemous libel. They had published a poem which described homosexual acts carried out on the body of Christ after his death.
Held: For a conviction, it was necessary to show that the defendant . .
Cited – Norfolk County Council v Webster and others FD 17-Nov-2006
There had been care proceedings following allegations of physical child abuse. There had been a residential assessment. The professionals accepted the parents’ commitment to their son, but also found that they were unreliable. It was recommended . .
Lists of cited by and citing cases may be incomplete.
Defamation, Litigation Practice
Updated: 01 November 2021; Ref: scu.182793