16. Civil jury trials

16.1 When is a jury trial ordered?

County Courts Act 1984, section 66 for false imprisonment or malicious prosecution. Similar provision in Supreme Court Act 1981, section 69.

1.         There are three categories of proceedings:

a)      Section 66 specifies certain proceedings where the trial shall always be without a jury.

b)      In all other county court proceedings, trial shall be without a jury unless the court otherwise orders on application. Under CPR, application must be made for a jury trial within 28 days of filing defence.

c)      Statutory presumption in favour of jury trial in certain circumstances unless the court is of the opinion that the trial requires any prolonged examination of any documents or accounts, or any scientific or local investigation which cannot conveniently be made with a jury. The cases where there is a prima facie entitlement to a jury are where the court is satisfied that there is in issue:

·        a charge of fraud against the party making the application; or
·        a claim in respect of libel, slander, malicious prosecution or false imprisonment; or
·        any question or issue of a kind prescribed for the purposes of this paragraph.

There is a discretion to allow jury trial in other actions but a general reluctance to do so. See Racz v Home Office [1994] 1 All ER 97 where the House of Lords refused to extend by analogy to misfeasance in public office, which since this case is no longer an action tried by jury.

16.2 Procedure

Section 67 of the County Courts Act 1984 provides for a jury of eight, but this means there can be a majority verdict of seven and the parties can even agree to take a lesser majority verdict. Section 68 provides that any question of foreign law is for the judge to decide.

If a claimant claims false imprisonment and assault or battery, then the jury will try both claims together, notwithstanding the fact that they do not fall within section 66.

Custody records, etc. will all normally have been discovered. A claimant is not entitled to details of any complaints recorded against the officer (but he can be asked in cross examination).

16.3 Special verdicts

This is the main difference between civil and criminal jury trials. The jury is required to answer certain questions, the framing of which can be a cause for concern. The judge's main task is to separate fact from law and identify the key issues of fact for the jury to determine.

At the conclusion of the evidence the judge decides if there is any case to go to the jury - if there is, jury questions are framed and closing speeches will reflect the questions. The judge then sums up the relevant law and facts.

The jury tries both disputed issues of fact (liability) as well as damages. However current practice is to ask them to determine liability first and only retire again to consider damages if they find in favour of the claimant.

In practice, most jury trials in the county court involve actions against the police for false imprisonment, often with associated claims for battery. The claimant will usually be legally aided and represented by counsel. Particularly in a Combined Court Centre, the jury may be expecting to try a criminal case and may well already have tried criminal cases. Once the jury have been empanelled, give them a thumbnail sketch of the issues likely to arise and the essential difference between jury trial in the county court and jury trial in the Crown Court. Apologise in advance for retirements. Also explain why the Chief Constable is the defendant in a police case.

16.4 Trespass - relevant torts

Assault, battery and false imprisonment are forms of trespass to the person, so that once the plaintiff proves on a balance of probability that he has been beaten or detained, the legal onus of establishing some lawful justification falls upon the defendant. In framing questions for the jury, do not pose the question as: 'Has the plaintiff proved upon a balance of probability' but instead as: "Has the plaintiff proved that it is more likely than not ...'

The common defences will be lawful arrest and the use of reasonable force in executing the arrest.

Nearly all cases turn on powers of summary arrest and the lawfulness or otherwise of the arrest in question.

PACE 1984:

a)      arrestable offences, section 24 (1), (2), (3);

b)      'Citizen's arrest', section 24 (4) and (5);

c)      Constable's powers, section 24 (6). A police officer is protected if he has reasonable grounds for suspecting that an arrestable offence has been committed by the person whom he has reasonable grounds for suspecting to be guilty of the offence. Note that an arrestable offence does not have to have been actually committed (in contrast to a civilian's position, such as a store detective). Furthermore he may arrest where there has been a breach of the peace or where he is satisfied that a breach of the peace is likely to occur. The latter is exceptional and the officer's honest belief is not conclusive. There must be reasonable grounds (Foulkes v Merseyside Police [1998] 3 All ER 705.)

d)      Persons about to commit or reasonable grounds for suspecting about to commit arrestable offence, section 24 (7).

e)      General arrest conditions in respect of non-arrestable offence where, e.g. service of summons is impracticable or name and address not provided, section 25.

16.5 Trial

16.5.1 False imprisonment

It is for the claimant to prove on a balance of probability that he was physically detained. This is not normally in dispute. The onus then shifts onto the defendant.

The defendant must then prove the existence of facts amounting to reasonable grounds for suspicion, giving rise to the power to arrest. Perhaps surprisingly whether he has reasonable grounds is not a question of fact for the jury but for the judge alone to decide. The reasons why this is for the judge alone are well described in the leading case of Dallison v Caffrey [1965] 1 QB 348, in particular pages 369 - 372. Reasoning relates to 'judicial distrust of Jacobinism' at a formative stage in the making of the law. If there is no dispute as to the relevant facts and the only issue remaining is the reasonableness of the arrest, the jury can be discharged and the judge alone proceed to a decision. However, if the facts amounting to reasonable grounds for suspicion are in dispute, then they must be determined by the jury by answering the questions formulated by the judge. This is the most important task the judge has, but in practice counsel will either agree the questions and submit them for approval, or will submit their rival questions for the judge to pick from or amend.

The defendant must also prove that the power of arrest was properly exercised and true reasons for arrest were given to the claimant, unless it was impracticable to do so. If there is a dispute about these matters, then it is also a question of fact for the jury.

16.5.2 Malicious prosecution

In practice, much less frequent than trials for false imprisonment. The claimant bears the burden of proving every element as well, of course, as damage. Malicious prosecution involves both a dishonest and an unreasonable prosecution - note that the onus of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted. It thus differs from wrongful arrest and detention.

The claimant has a number of hurdles to surmount and must prove that:

a)      he was the subject of a criminal prosecution which eventually terminated in his favour whether by abandonment, verdict or on appeal. Quaere the position if it was stayed as  an abuse of process;

b)      the prosecution was initiated or continued by the defendant; and

c)      the defendant acted without reasonable and probable cause. This involves two distinct elements:

·        The absence of objective facts giving rise to reasonable and probable cause to justify the commencement or the continuation of the prosecution.

·        That, notwithstanding the existence of reasonable and probable cause in an objective sense as determined by the judge, the defendant did not honestly believe that the facts justified the prosecution.

d)      The claimant must also prove that the defendant was activated by malice, which means a motive other than a proper desire to initiate the criminal process. It might be proved by showing the officer lied or planted or fabricated evidence - all issues for the jury to determine. The decision to prosecute will usually be made by the CPS but the officer can be liable if he deliberately misled them.

16.5.3 Negligence

The police have enjoyed immunity from actions for negligence in investigation and suppressing crime since 1989 (Hill v Chief Constable of West Yorkshire [1989] AC 53) but this may now be open to question. In Osman v UK (1999) FLR 193 at 271 the European Court of Human Rights declared it to be a breach of Article 6 of the Convention. Quare the position in the Stephen Lawrence case, where damages are claimed from the Metropolitan Police.

16.6 Damages

Questions relating to damages have exercised the minds of the appeal courts more than any other aspect.

Quantum of damages are for the jury but now subject to the guidelines set out in Thompson v Commissioner of Police of the Metropolis [1997] 3 WLR 403. This case has radically altered the way juries are to be assisted and directed in assessing quantum. Before 1997 the law was clear that no monetary guidance could be given. In Ward v James [1966] 1 QB 273, Lord Denning said no help could or should be given to juries as it would develop into an auction with counsel and the judge urging rival figures. But the showbiz cases of Rantzen v Mirror Group [1994] QB 670 and Elton John v MGN Ltd [1996] 3 WLR 593 were the turning point in defamation, allied to section 8 of the Court and Legal Services Act 1990.

16.6.1 Heads of damage

a)      basic compensation;

b)      aggravated;

c)      exemplary.

Now, if a jury finds for the claimant on the issue of liability (by deciding disputed issues of fact in favour of the claimant) the judge hears submissions from counsel on quantum, in the absence of the jury. The judge then directs the jury on damages and the jury retire again with questions to decide the issue or issues of damages.

Note that there has been a Law Commission Report on whether or not these different categories of damages are necessary, but they still exist.

16.6.2 Basic damages

These are entirely compensatory. It is useful to inform the jury of a range of awards for similar injuries. In personal injury cases, refer to the JSB's Guidelines for Assessment of General Damages in Personal Injury Cases, the 5th edition of which has been updated to include Heil v Rankin. Do not forget special damages, e.g. loss of employment.

The general damages in false imprisonment cases will be for the loss of liberty and any loss of dignity or reputation. In a straightforward case: £500 for the first hour, reducing hourly thereafter and £3,000 for the first 24 hours, reducing thereafter. In the case of malicious prosecution, general damages will be £2,000 or so for a prosecution lasting up to two years, upto £10,000 for a Crown Court case, increasing if the conviction was only set aside on appeal.

16.6.3 Aggravated damages

These are designed to compensate the claimant where the circumstances of the tort cause additional injury to hurt feelings, loss of dignity and the like. For example, if a wrongful arrest takes place in demeaning circumstances, in the public street or accompanied by arrogance or aggression, this may be a case for aggravated damages. Note they must be pleaded and claimed. Beware of an overlap with exemplary damages. The jury should be asked to identify the amount awarded for aggravated damages. If justified, the starting point is about £1,000. They should not normally exceed twice the basic award for damages.

16.6.4 Exemplary damages

These are only to be left to the jury where they have been claimed and where the judge considers there is evidence to support such a claim (see Thompson v Commissioner of Police of the Metropolis [1997] 3 WLR 403, 417 at paragraph 12.

These are essentially penal by reason of the defendant's conduct.

Rookes v Barnard [1964] AC 1129 defines exemplary damages as being awarded in cases of 'oppressive, arbitrary or unconstitutional action by servants of the government.' Is this not the case in every false imprisonment?

The starting point is £5,000, but they must be particularly deserving of condemnation to justify as much as £25,000 and the absolute maximum is £50,000 where, for example, it involves an officer of the rank of at least Superintendent.

Damages may be reduced if the claimant's own conduct contributed to the incident. The prospect of the possibility of police disciplinary action and the unwillingness of the claimant to avail himself of the police complaints procedure is not relevant to the issue of damages.

16.6.5 Heil v Rankin

In Heil v Rankin [2000] 3 All ER 138, the Court of Appeal decided that awards below £10,000 should remain, but those above £10,000 should have an upward adjustment of one-third. Lord Woolf MR made the following comment on jury trials.

'Even in those situations, such as actions for defamation, 'false imprisonment' and malicious prosecution, where it is still normal to have jury trials, the court now seeks to exercise more influence over the amount of the award by juries than would have occurred in the past. This is in part to assist in achieving consistency. It is also a recognition that the public must perceive that the awards are at a level which can be regarded as just. It is why the ability of the judge to give guidance to juries in defamation actions was extended by the Court of Appeal in John v MGN Ltd [1997] QB 586. The same happened in the case of 'false imprisonment' and malicious prosecution in Thompson v Commissioner of Police of the Metropolis [1997] 3 WLR 403. As Bingham MR stated in the former case:

'Any legal process should yield a successful plaintiff appropriate compensation, that is, compensation which is neither too much nor too little. That is so whether the award is made by judge or jury ... Nor is it healthy if any legal process fails to command the respect of lawyer and layman alike ... The conventional compensatory scales in personal injury cases must be taken to represent fair compensation in such cases unless and until those scales are amended by the courts or by Parliament.' (see [1997] QB 586 at 611, 614)

Excessive importance must not, however, be attached to consistency. Care must be exercised not to freeze the compensation for non-pecuniary loss at a level which the passage of time and changes in circumstances make inadequate. The compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.'

16.7 Civil procedure rules

Jury trials will almost always be given a 'multi-track' allocation. The CPR appear to have left civil jury trials unchanged save that a jury trial must be applied for within 28 days of filing a defence and a provision relating to the form of trial judgment. Paragraphs 14.1 and 14.2 of the Part 40 Practice Direction provide that there must be a judgment after a trial before judge with jury for which Form No. 46 may be used (note, not must be used). Paragraph 14.2 sets out what that judgment must contain. In fact, it is more an order than a judgment, but it does require the inclusion of a number of matters which would not otherwise have been in an order. Paragraph 14.2 reads:

A trial judgement should…have the following matters set out in a preamble:

a)      the questions put to a jury and their answers to those questions,

b)      the findings of a jury and whether unanimous or by a majority,

c)      any order made during the course of trial concerning the use of evidence,

d)      any matters that were agreed between the parties prior to or during the course of the trial in respect of:

·        liability,
·        contribution,
·        the amount of the damages or part of the damages, and the findings of the judge in respect of each head of damage in a personal injury case.

I append a copy of form 46.

16.8 Human Rights Act

It may well be that there will be a growth of these cases when the Act begins to bite. There are clearly a number of areas where challenges are likely.