Part of the debate – in the House of Commons am ar 27 Gorffennaf 1923.
I am saying that under this Bill I should have thought that they would. Let us, however, take a very different kind of action, an action such as is sometimes sought to' be brought against a professional man, a solicitor, a surgeon, a dentist, or what you please, alleging that he has been careless in the discharge of his duty. I can quite understand some Judges saying, "I shall try this case very much better than a jury.' But as I understand the law before the War, the plaintiff in such a case in a common law action was entitled to say, "I want my rights here ascertained by calling together 12 of my fellow citizens," who, so far as matters of fact are concerned, under the direction of the Judge, are able to determine which of two sides is telling the truth and is to be believed, and which is lying, and who can bring their own practical citizen's good sense to bear on the matter. That was undoubtedly the position before the War. Is it the position under this Bill? As I read this—
Any cause, not being a cause to which paragraphs (a), (6) and (c) apply"—
and negligence therefore is included—
shall, if any party thereto makes an application in that behalf, be tried with a jury, unless in the opinion of the Court or
a Judge the cause is more fit to be tried without a jury.
What was there before 1914 which provided that in an action for negligence or nuisance or an action on contract, apart from the prolonged examination of documents or the investigation of accounts, the right to a jury depended upon the opinion of the Court or a Judge as to whether the cause was more fit to be tried without it? There was nothing of the kind, and I invite the Solicitor-General, when he answers in this Debate, to tell me whether I am wrong, or whether during the 20 years I have been at the Bar I have been under the misapprehension that either party in an action of that sort could claim and could get a jury as a matter of right and could only be deprived of that right, providing he took the proper steps, if, indeed, the action was one that involved the prolonged examination of documents or the investigation of accounts. If that be right, what is the good of saying that this Bill is restoring the right to trial by jury which existed before the War?
May I be permitted to make this one observation on the other branch of the subject. I do not approach this subject in a professional spirit or from what one may call the lawyer's point of view. My own view of the matter is that the question of preserving the right of trial by jury goes far beyond any professional interest or any technical legal question. It is a great and proud British possession. It is the fact that the liberties of this country have in times past been very largely preserved and secured by preserving and increasing the powers of juries. Everyone will agree that the right of the jury to answer a question "Aye" or "No," "Is this a libel," has had a great part in protecting the rights of subject. I have in mind an illustration—a striking illustration of the value of a jury when more than 100 years ago William Hone, a bookseller in London, was tried on three successive days in the City of London on a criminal charge of blasphemous and seditious libel. Mr. Justice Abbott tried the case first but on the third trial the Government of the day were so anxious to secure a conviction that they sent Lord Ellenburgh down to the City. I well recall that the jury exercised their right by acquitting the defendant, although undoubtedly the authorities were very anxious to secure a conviction.
Those, of course, are criminal cases, untouched by this Bill, but I offer the opinion for what it is worth to the House that the protection which is afforded by the use of a jury in civil cases is a much more valuable protection than many light-hearted critics suppose. No one disputes the impartiality of the Judge, but the prejudices of one individual can be corrected by gathering together 12 individuals, none of whom may be anything like so learned as the Judge. Some of our very best Judges have felt that most strongly. There are some questions that arise which depend for a proper decision far more on practical good sense than on the exercise of great judicial qualities. Anyone who has had the business in life of conducting cases in which juries take part know this. What I have been struck with often is that the British jurymen undertakes his task in such a serious spirit. He may, of course, suffer from prejudice, like the rest of us, and sometimes he may allow that prejudice to run away with him, but when you get men gathered together out of the street, put them on a hard seat, and impose on them very serious conditions such as that they must not speak or interrupt, that they must listen even to a tedious Counsel or to a joking Judge, I say that the most surprising and satisfactory thing about the British juryman is that he sets about his task within the limits of his power in a way which is a great credit to our national character.
It seems to me that if before the War that system worked well, as I believe it did, the system which gave as a right a jury, on the application of the litigant at Common Law, in any kind of action apart from special cases which were by rule barred for practical purposes, then it is a serious departure from our pre-War practice to say that the right is not to be continued if, in the opinion of the Judge or Court, the case is "more fit" to be tried without a jury. The frailties of human judgment and human prejudices cannot be got rid of by going before either a Judge or a jury. In those cases that come into Common Law Courts, apart from detailed examinations of documents, if you get both a Judge and a jury on the whole you are securing the best instrument of justice. The House must not act as though, by having a jury, it is handing over the duty from the Judge to the jury. That is not the alternative. The alternative is between no jury and a Judge with a jury to help him. Whatever function the jury plays, it is a function completely under the direction of a Judge under whose very skilful, though often unseen, guidance, the juries discharge their duty solely with reference to facts. It is the experience of many that the fact of handing over to juries the assessment of damages, the question whether proper care was taken or whether people are fraudulent or honest—is to hand over something upon which the ordinary citizen is perfectly well able to form a pretty shrewd opinion, and you get better justice, because the Judge can apply his mind to the law with which he is acquainted without being embarrassed with questions of fact. Before the Debate concludes, I would ask the Solicitor-General to deal with a matter which I think is proper to be dealt with on the Floor of the House. Does the hon. and learned Gentleman tell the House that this Bill restores the right of the ordinary litigant to claim a jury as that right existed before the War? I do not believe it does. If it does not, it is a matter about which the House of Commons ought to be invited to express its opinion.