Actor and political activist Laurence Fox has failed in his bid for the first libel trial by jury in a decade over a social media spat between him and three public figures he called ‘paedophiles’ on Twitter.
Fox is being sued by Simon Blake, former vice chair of LGBT charity Stonewall, RuPaul’s Drag Race star Crystal, whose real name is Colin Seymour, and Coronation Street actress Nicola Thorp over tweets sent in October 2020. He is counterclaiming against the trio for calling him a ‘racist’.
The former London mayoral candidate argued that there is a risk of the judge hearing the case suffering from ‘involuntary bias’, in part as a result of what was said to be the ‘expansive’ definition of racism adopted by the Judicial College in the most recent edition Equal Treatment Bench Book.
His barrister Alexandra Marzec told the court last month that the description of racism as ‘a term defined more by effects/outcomes than by motives’ does not reflect ‘the way ordinary people use the word’.
She also argued that any vindication Fox could obtain from a jury would be ‘incapable of being undermined on the lazy basis that a white judge sided with a white man who denied being racist’.
But Mr Justice Nicklin today ruled that ‘no fair-minded and informed observer could conclude that there was a real possibility that the judge who ultimately tries this case would be involuntarily, but institutionally, biased because of the definition of “racism” used in the [Equal Treatment Bench Book]’.
He also rejected the suggestion that ‘the difficulty of challenging a jury verdict on this issue was a virtue’, saying: ‘The reason that a jury verdict is difficult to appeal on such a point is not because, being a verdict of a jury, it is in some way unassailable. Rather, unless the jury has given a narrative verdict, it is very difficult to identify whether they have gone wrong, and if so, on what issue.’
Nicklin added: ‘I reject the suggestion that a reasoned judgment is any “invitation” to appeal. Permission to appeal is given on the basis that the grounds of appeal have a real prospect of success or that there is some other compelling reason to grant permission. Permission is not given on the basis that the decision relates to a “culture war”.’
The presumption in favour of jury trials was reversed by the Defamation Act 2013. While libel claims can still be heard by a judge and jury, it is believed that no libel case has come before an England and Wales jury since comedian Frankie Boyle’s successful case against the Daily Mirror in 2012.
Fox said in a statement: ‘I am disappointed that the court has not ruled there should be a jury trial. I believed this was an ideal case for a jury to sit, especially considering the emotive and zeitgeist issues in play.
‘I think this places any trial judge in the invidious position of having to define “racism” in the 21st century, where I am asking that judge to adopt a common-sense definition completely at odds with the Equal Treatment Bench Book, a document which dictates to judges to think about “racism” in a particular way and act accordingly in their courts every single day. Nonetheless, I fight on and am confident justice will be served.’