Day 312 - 11 Dec 96 - Page 15
1 before, particularly relevant in the context of an
2 adversarial legal system, and therefore a fair trial in
3 this case is impossible due to that lack of equality of
4 arms.
5
6 Third point, the absence of a jury to decide on the meaning
7 of the words complained of, allegations of malice in the
8 claim and counterclaim, to evaluate the facts and right to
9 fair comment based on their own experience and common
10 sense, and to intervene should they consider any injustice
11 or oppression to be resulting during the trial or at the
12 end. Again, that is one of our arguments for a lack of
13 safety in these proceedings.
14
15 However efficient, fairminded and worldly-wise the judge
16 may be he cannot displace the advantage of and the value of
17 and the right of Defendants to be tried by their peers.
18
19 MR. JUSTICE BELL: Well, where are you going on this? You
20 appealed against that with counsel's assistance and the
21 Court of Appeal dismissed that appeal.
22
23 MR. MORRIS: Yes, they dismissed it on the grounds they could
24 not interfere with the judge's discretion.
25
26 MR. JUSTICE BELL: Yes, but there you are, it was, for the
27 purposes of our legal system, a valid order.
28
29 MR. MORRIS: Yes.
30
31 MR. JUSTICE BELL: It cannot be challenged in any way now.
32
33 MR. MORRIS: It is still relevant to, it is in context with, the
34 other points, it is still a relevant factor, and other
35 matters that are in this document and it is hard to
36 appreciate and understand the full import, for example, of
37 lack of equality -- sorry, not lack of equality of arms,
38 the argument about oppression of the Defendants and other
39 matters, without understanding the particular circumstances
40 of this case. I mean, that is our submission matter, about
41 the jury, we are not going into much more detail, we are
42 not applying again, but it is important to be taken into
43 consideration. As I say, at the very end of this
44 submission these are all points to be considered.
45
46 So, where there is an issue of how to try the case with
47 convenience in mind, and the tribunal is empowered to
48 consider any administrative and procedure improvements
49 necessary for the smooth running and fairness of the trial,
50 which is an entirely separate and purely technical matter
51 from the fundamental right of a jury trial, we would
52 submit. If it were not, then convenience, in the face of a
53 detailed or extensive case, could extend further, I say,
54 for example, the removal of a party's right to appear or to
55 be a litigant in person, or whatever. Or even to have a
56 judge. That obviously gets a bit bizarre there, but the
57 point I am making is that convenience is a separate matter
58 from our right, as we believe it, to be heard by a jury of
59 our peers.
60
